• Introduction

• Comparative research is just method of study and

research in order to ascertain how far and in what
respects one differ from another. Comparative legal
research which leads to formation of comparative
law does not mean distinct branch or department
of law. The process of comparative rule does not
result in the formulation of separate system of law.
It is only particular method of science to study and
analyze various legal systems of the world.
• Comparative research is a research
methodology in the social sciences that aims
to make comparisons across different
countries or cultures. A major problem in
comparative research is that the data sets in
different countries may not use the same
categories, or define categories differently.
• Comparative research, simply put, is the act of
comparing two or more things with a view to
discovering something about one or all of the
things being compared. This technique often
utilizes multiple disciplines in one study. When
it comes to method, the majority agreement is
that there is no methodology peculiar to
comparative research.
• Lambert’s attitude towards comparative legal
Research has two ideas:
• Purely scientific discovery by comparison of
origin, development and extinction of legal
institutions, also called as comparative legal
history.
• Comparative legislation – not a science, but
form of legal technique to create international
common law.
• There is no exact credit to the comparative
system of legal development in the
development of system of laws as countries
boost on their customary laws and practices
mostly. But the real contribution of the
comparative process cannot be denied in the
development of good laws and practices from
medieval period to till today.
• The methodology for comparative legal research
is different to the functional method because we
go through what to compare first of all rather
than how to carryout process. This may include
comparison of published but unnoticed
documents, research outside rule and various
case oriented comparative laws. Moreover, it
depends upon the aim of research and the
research question that will determine which
method is useful.
• Importance of Comparative Research
• Comparative research method was applied mainly
to improve domestic law and legal doctrine early
twentieth century but many scholars in Europe
considered comparative law to be the necessary
instrument for the harmonization of law within
EU. There can be different aims and diverging
reason for comparing legal systems and innovate
new ideas from such research.
• In a general way, Patrick Glen has stated the
‘Aims of Comparative Legal Research’ as:
• Instrument of learning and knowledge
• Instrument of evolutionary and taxonomic
science e.g. common evolutions, legal families
• Contributing to one’s own legal system
• Harmonizing of law
• Comparative research is also regarded as the
method to solve cause and effect relationship
among two or more variables. The term like
Comparative Jurisprudence is even used to aid
historian or the analytical jurist in tracing the
origin and development of concepts common
to all systems of law.
• Further comparative method of legal research
supports collection and distribution of
information as to foreign law, likewise
utilization of the experience gained in other
system of law for the purpose of law.
• Things to be compared
• Traditionally focus on comparing rules of
different societies
• Comparison of judicial decisions and way of
solving problem
• Socio economic and historical context of law
• And for recent electronic databases and
available files
• Example: while comparing neighboring
countries, the researcher may have a general
idea of historical and socioeconomic
similarities and differences. For differences,
some better insight to that context will be
required.
• Way of Comparative Legal Research
• Comparative law has often been criticized for
not following any method when carrying out
comparative research. Legal scholars mostly
focus on doctrinal framework for their own
legal system, i.e. lack framework for
comparative research.
• Sometimes comparing is considered to be a
method in its own right but mostly functional
method is regarded as the method for
comparative law research. It suggests focusing
on common legal problems and solutions in
the compared legal systems, rather than on
rules and doctrinal frameworks.
• The process of comparison includes following questions:
• Does a given problem of law lend itself to comparative
investigation?
• Where are the relevant rules of foreign law to be found?
• What weight is to be attributed respectively to statute
law, customary law, judge-made law and the opinions of
legal text-book writers?
• Are there any special features of the foreign law to be
examined?
• There are few different methods for
comparative research: the structural method,
the analytical method and historical method.
We will discuss them as follows:
• Structural method: It is mostly used in the
structural analysis of the parts of the legal
system. The approach includes the
classifications of legal families
• Analytical Method: The analytical method is
analyzing complex legal concepts and rules in
different legal systems in such a way that
common parts and differences are detected. For
example the concept of ownership can be
analyzed in different legal system in regards to
claims, liberties, and competences etc. The legal
concepts, rules, institutions can be ranked to the
ideal types of legal concepts and thoughts.
• Historical Method: Historical method will
almost always be a necessary part of the
methods used, for understanding differences
and commonalities among legal systems and
for determining their degree of belonging to a
deeply rooted tradition or rather to accidental
historical events.
• It is even necessary to inquire what kind of
legal evolution and context fits with
development in other countries. There may be
tension raise between tradition and
modernity. The related example is the
development of family law. It must be
carefully applied in the comparative legal
research method.
• Comparative approach to case law: There are two
situations whether ignore or minimize the effect of
decision of courts or may, on the other hand, attribute
to it a higher degree of authority than to which it is in
fact entitled. The weight to be attached to judicial
decisions varies from country to country. There are
certain issues like how continental case law differ from
English case law and how far can it be treated as
authoritative. It helps in legal development process
where modification, amendment and changes to the
law are required.
• Conclusion
• Thus comparative way of legal research is method
of understanding the deeper level of subject
matter and be able to give solution to problems. It
does not always carry the surface meaning of
comparing different legal systems of the world
and listing the differences. This method of legal
research even supplements historical and
analytical method of legal research.
• Comparative method of legal research will always
raise the questions of how different laws evolved
from customary practice can be compared and
drawn conclusions. It depends upon the question
of research entertained in the subject matter of
research. Such conclusions drawn should only
represent the differences, not any kind of analysis
in the legal system of the state. The analysis can be
made if there are some defects in the laws and has
to be improvised such legal system.