The Muddled Science of Comparative Law: Terminological Hitches, Characteristic Glitches and Jurocomparatology as a Way Out of the Quagmire- Blog II (A)

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India and International Law Series

Hakim Yasir Abbas

Globalization has shrunk the world and changed the manner in which human beings interact with each other. It has done so for legal profession[i] as well and more so in regards to “international and cross-border” legal and constitutional dialogue.[ii] The inevitable result has been the dilution of boundaries between ‘international law’ and ‘domestic law’[iii], the reflections of which we can find in India as well.[iv] This convergence of international and domestic law, even though valuable, has raised some serious legal, philosophical and methodological challenges. These challenges and their rationalization will be the subject-matter of this blog. However, due to the paucity of space, I am writing this blog into three parts: Blog II (A), Blog II (B) and Blog II (C). The objective here is to highlight the challenges that exist in relation to using “international law” as a tool of interpretation, tracing these challenges in the Indian jurisprudence and using different theories and reasons to rationalize these challenges. This part of the blog [Blog II (A)] will provide an introduction and will analyse the problems related to terminology and the nature and scope of comparative legal analysis. The necessity of doing so is to highlight the importance of treating ‘international law’ and ‘foreign law’ as two separate non-domestic authorities. Blog II (A) will highlight the problem of using “comparative law” and “comparative analysis of law” interchangeably, the problem of using “comparative law” and “international law” interchangeably and will then introduce the term “Jurocomparatology” as a solution to these terminological and characteristic problems. The introduction of this new term will therefore highlight the reason and importance of treating “international law” and “foreign law” as different categories and how “Jurocomparatology” as an “exact science” will help solve this issue. Blog II (B) will deal with the legal and philosophical challenges associated with “comparative law”, “international law” and “comparative analysis of law”. Blog II (C) will deal with methodological and technical challenges. It will also deal with specific challenges which arise while engaging in comparative constitutional law.

Introduction.

The task of deciding legal disputes is very complex. It is a multifaceted task which involves qualified application of mind to a series of actions. Critical analysis of the “challenged legislation or a lower court decision”, “analysing the various questions that arise in such dispute”, “distinguishing between questions of fact and questions of law”, “deciding jurisdictional issues and matters regarding locus standi”, and “deciding and choosing between different tools of interpretation and the consideration each one of them should be given”, are just a few among the many which become the part of this herculean task. Any mistake in relation to any one of the above could lead to catastrophic consequences, most serious among them being ‘miscarriage of justice’. Even though all of them play an equal role in judicial decision making, the matter of “tools of interpretation” is essential for the purpose of this and subsequent blogs. The reason being that the engagement in comparative legal analysis is an ultimately done for “interpretative” purposes. The term “interpretation” in this and subsequent blogs will be used to mean, discovering and attributing a specific meaning to a statutory or constitutional provision and will for all practical purposes include ‘construction’ as well.

Benjamin N. Cardozo compares the process of deciding cases to “brewing a compound (tea)”, whereby the judges use different principles/ingredients/tools to formulate a judicial decision (a compound).[v] Depending upon the facts, circumstances and the nature of law involved in each case, the manner and the influence of each ingredient varies. It may happen that in one case ingredient ‘X’ plays a stronger role than all other ingredients, while as, in some other case it plays a very nominal role (or no role at all). The influence of each ingredient may also depend upon the ‘taste of the judge’. If a judge likes ‘strong tea’, he will use one ingredient (which brings such strong taste to the tea) more than the other ingredients. However, if a judge likes black tea, then he will not use an ingredient (milk) at all. If he likes green tea or masala tea, he most certainly will use different ingredients.[vi] In legal terminology we do usually call these ingredients “tools of interpretation” and we do know about their categorisation as primary and secondary tools of interpretation.

Cardozo subsequently divides these principles/ingredients as those which judges use consciously and those which they use subconsciously.[vii] We are concerned with the former because there is no doubt about the fact that the constitutional courts in India (as pointed out in the previous blog) use foreign law and international law intentionally and on purpose.[viii] As highlighted in the previous blog, engaging ‘foreign law’ and ‘international law’ as tools of interpretation is a conscious activity, in which constitutional courts engage enthusiastically.[ix] The process of using both “foreign law” as well as “international law” as essential ingredient in decision making is in its golden age.[x] Both of them have become an essential part of the legal culture of almost every nation.

“International law” and “foreign law”, as tools of interpretation need to be considered as two separate categories. And it becomes vital, for research as well as practice purposes, to explain the reason for doing so and also answer the question as to whether both of them can be categorised under a single category of “comparative law”.  The dilemma regarding the correct categorization raises serious issues, both for the purpose of research as well as practice. However, this is not the only dilemma or challenge that this blog is going to address. The blog [Blog II (B) and Blog II (C)] will also deal with legal, philosophical and methodological challenges associated with using “international law” as a tool of interpretation/construction.

Comparative Law: Problems with Terminology, Nature and Scope and a Possible Way Out.

  1. Comparative Law or Comparative Analysis of Law: Whether ‘Science’ or ‘Methodology’?

A conversation about “Comparative Law” cannot be same as the one on “Contract Law”. While the latter, a statute passed by a competent legislature and capable of being enforceable in a court of law, contains a body of rules and regulations with the legal ability of creating rights, duties, obligations, liabilities, privileges, immunity, disability, and remedies; the corpus juris of the former is not the same. In this regard, comparative law cannot be treated as ‘law’ in the strict sense of the term. So, why then is it called comparative ‘law’ and what then does it deal with? If it is not a ‘law’ in the strict sense of the term, then is it a ‘methodology’ and should it be therefore called “comparative analysis of law”[xi]. Legal scholarship seems to lack consensus on the same and the loose (and perhaps the wrong) manner in which ‘comparative law’ and ‘comparative analysis of law’ have been used interchangeably begs appropriate consideration and elucidation. Utter disregard to the distinction between the two has also led some scholars to state that going into such debate is a futile activity now.[xii] The term “comparative law” as including “comparative analysis of law”, as Gutteridge observes, “has become so firmly established that it must be accepted, even if it is misleading”[xiii]

However, I beg to differ with this stand which uses “comparative law” and “comparative analysis of law” as synonyms or argues in favour of using them interchangeably. They represent two different domains. While “comparative law”, as will be highlighted below, is a “legal science”, “comparative analysis of law” reflects the actual act of engaging in a comparative analysis. In this sense we should think of “comparative analysis of law” as a “verb”. In this regard, I believe that “jurocomparatology” should be used as a term under which “comparative law” and “comparative analysis of law” (and some other aspects) could be classified together. Using such a terminology can prove helpful to cluster various aspects of misnomer “comparative law”. Keeping this in mind and epistemologically speaking, I propose the following definition of ‘Jurocomparatology”:

“Jurocomparatology may be defined as the science of ‘comparative law’, ‘comparative analysis of laws’ and ‘direct or indirect use of international law for domestic purposes’. For this purpose, ‘Comparative law’ involves the study and analysis of foreign law (law of another country) and does not include international law. It includes (but is not be restricted to) analysis, conceptualization and theorization of reasons as to why members of legal fraternity can or cannot (or should or should not) engage in legal comparison (both for research and practical purposes), determination of who can or cannot (or should or should not) engage in such comparison, defining what can or cannot (or should or should not) be the subject-matter of such comparison, identifying jurisdiction with whom such comparison can or cannot (or should or should not) take place, identification and rationalisation of legal and philosophical problems associated with the same, identification of methodological problems associated with such activity, and the development of a standard methodology for engaging in the same. ‘Comparative analysis of law’ means the actual act of engaging in comparison.”

In this sense, this definition can give us a way out of the confusing labyrinth in which comparative legal scholarship is wedged as far as “conceptualising and theorizing” the nature and scope of comparative law or comparative analysis of law is concerned. Therefore, jurocomparatology, which includes comparative law as well as comparative analysis of laws, qualifies both as a ‘legal science’ as well as a ‘legal methodology’. “Comparative law” refers to “legal science” in the same manner as jurisprudence and criminology[xiv] while as “Comparative Analysis of Law” refers to “legal methodology”. In this sense ‘comparative law’, like jurisprudence, is concerned about “why is” rather than “what is”. Like criminology, which tries to study and theorise the reasons as to “why” people commit crime, comparative law tries to study and theorise the reasons as to “why” members of legal fraternity refer to laws from other nations. The other aspects of comparative law may include (but is not limited to) understanding and explaining reasons for engaging in comparative studies, reasons as to why practitioners and judges prefer (or should prefer) referring to one jurisdiction over another while comparing, or in what circumstances can they (or should they) refer to international law, what should or should not be the subject-matter of comparison, why can engaging in comparative analysis of law be challenging, how can these challenges be overcome, and what is the best possible methodology to engage in the same.[xv] Therefore, “comparative law” deals with theorising about the act and about the methodology of engaging in comparative study while as “comparative analysis of law” means the actual act of engaging in such activity using the theory and the methodology developed by comparative law. For example, “Comparative Analysis of India’s Human Rights Law” means that I am engaging in a ‘comparative analysis of law’ and not ‘comparative law’. In this regard Prof. Kamba states that scholars like Levy-Ullman, Kohler, Arminjon, Nolde, and Wolff, Rabel, Brutau, Yntema, Hall and Rheinstein consider “comparative law” as “science” and treat it on the same line as “jurisprudence”.[xvi] Moreover, Rheinstein while placing comparative law in the same category as jurisprudence holds the view that comparative law belongs to the realm of the exact sciences “[because] its cultivator tries to observe, describe, classify, and investigate in their relations among themselves and to other phenomena, the phenomena of law. Comparative law in that sense is the observational and exactitude-seeking science of law in general.”[xvii]

Moreover the meaning of ‘comparative law’ under jurocomparatology would suggest that reference to the same means indication to the domestic law (irrespective of such law being formal or informal, substantive or procedural, structural/institutional or otherwise) of foreign country. The first question that pops up is as to whether ‘comparative law’ and ‘foreign law’ mean (or should mean) one and the same thing? That is and should not be the case. There is a structural difference between the two. While comparative law, as highlighted above, can be classified as ‘legal science’, foreign law seems to be the subject-matter of such science. The difference can perhaps be made clear by reference to the difference between ‘criminology’ and ‘crime/criminal’. While ‘Criminology’ refers to a specific ‘legal science’, ‘crime/criminal’ refers to the subject-matter of the same, i.e. they refer or define the ‘specificity’ of this legal science. In the same way, ‘comparative law’ refers to a specific ‘legal science’ and ‘foreign law” refers to the subject-matter of the same, i.e. it refers to the specificity of ‘comparative law’. The difference is perhaps the same as between “legal theory” and “law”.

  1. International Law as Part of Jurocomparatology: Why Use of International Law for Domestic Purposes Needs to be a Separate Category under Jurocomparatology.

‘Comparative law’ in the sense as defined under Jurocomparatology cannot be said to include reference (direct or indirect) to international law (for interpretative purposes or otherwise). This can be explained by highlighting the difference between ‘foreign law’ (which is the subject matter of comparative law) and international law. The establishment of this difference read with the fact that ‘foreign law’ is the exclusive subject-matter of ‘comparative law’ will show that ‘international law’ cannot be placed within the category of ‘comparative law’. Moreover, ‘international law’ cannot even be placed under ‘comparative analysis of law’. This is because of the nature of “comparison” as an activity. When we say “comparative analysis of law”, it means comparing ‘foreign law’ from two different jurisdictions. And, as will be highlighted below, that is not how international law interacts with domestic law. The interaction between international law and domestic law is not comparison per se.

International law, as is a common knowledge, as a matter of both principle and practice exists and works in a different manner than domestic law. Therefore, foreign law (which basically is the domestic law of a foreign nation) and international law cannot be used for the purpose of comparison in the same sense. In fact, we cannot even say that we can use ‘international law’ for the purpose of comparison.  It therefore becomes important to clarify for the purpose of this and the subsequent blogs that any material (empirical or otherwise) making reference to international law would mean international law in the strict sense of the term [Article 38 (1) of the ICJ Statute].[xviii]

The necessity of analysing foreign law (as a subject-matter of comparative law) and international law differently is reflected in the global scholarship regarding the same and a large number of scholars have prearranged ‘foreign law’ and ‘international law’ into two different categories for the purpose of identifying them as non-domestic interpretative authorities.[xix] The reasons for doing so have been attributed to the “structural” and “functional” differences between the two systems (as embedded in the monoist- dualist debate). Due to the paucity of space, these differences can be briefly stated as follows:

  1. The primary structural differences between domestic law and foreign law include law & policy making institutions and law enforcement mechanisms. The source of international law is different from that of domestic law. Every nation has specific legal institutions for the purpose of creating and implementing law. While as no such well defined institutional set-up exists for the purpose of international law Therefore, a legislation passed by the US parliament or a case-law decided by a US Supreme Court would not have same legal sanctity as an international convention or an ICJ decision. The institutional similarity between India and US makes it convenient for Indian courts and scholars to refer to US law (foreign law) than making reference to international law which interacts with Indian law in a different capacity [as will be highlighted in Blog II (B)]. Therefore, assuming that an international convention (for the interpretative purposes of domestic law) would be similar to US legislation or case-law (for the same purpose) would be illogical and would not yield qualitative results. Therefore, it cannot be said that while referring to non-domestic interpretative authorities, the “foreign law” and the “international law” could be considered, compared and used in the same way.
  2. The second and much more important difference is in relation to the democratic legitimacy of domestic laws and the lack of same in international law. This in fact has raised serious concerns about the convergence of international law and the domestic law and has been taken up in detail in Blog II (B). The crux of this difference is that since the domestic law as well as foreign law originate in a democratic set-up, it is convenient to compare them than doing so with international law.
  3. Another difference is in relation to the subjects and the subject-matter of both systems. While the subjects of domestic law are ‘individuals’ and ‘corporations’, international law governs ‘states’ and ‘international organisations’. Therefore, the nature or subject-matter of both these systems in relation to rights, duties, privileges, power, immunity, disability and liability will be different and cannot be used for interpretative purposes in the same manner. While domestic law uses these concepts in relation to individuals, ‘international law’ uses it in relation to states. Of course, there are instances where international law uses these concepts in relation to individuals as well. However, the manner [highlighted properly in Blog II (B)] in which it is done is different from that of in which domestic law does the same. International law creates obligations on the States to behave or not to behave in a certain manner in relation to other states and as in some cases in relation to their citizens. This suggests that while “foreign law” creates a ‘horizontal authority’ (persuasive), there may be instances where international law may create ‘vertical authority’. Therefore, this similarity in relation to subjects and subject-matter between two different countries (like US and India) makes it convenient for courts to refer to ‘foreign law’ rather than ‘international law’.
  4. This brings us to the manner of interaction of international law and foreign law with our domestic law. In this regard one may refer to the book “The Use of Foreign Precedents by Constitutional Judges”, which is an empirical study of the extent and the manner in which judges use foreign precedents in constitutional cases in more than ten jurisdictions.[xx] It distinguishes ‘international law’ from ‘foreign law’ and expressly excludes ‘international law’ from the research. Following paragraph from the book highlights the same:

The use of international law has also been excluded from the research:[..] we strongly believe that reference to international case law can divert attention from the optional and purely ‘voluntary horizontal dialogue’ between courts, by introducing elements of ‘vertical compulsory dialogue’”.[xxi]

 

Even though the term ‘foreign’ does refer to things which originate outside one’s country and in that sense international law is also foreign or alien, however, the basis of the distinction should not be ‘territory’, it should be ‘authority’. In relation to foreign law, this authority is the accepted sources of law in respective nations, and in relation to international law it is 38 (1) of Statue of ICJ. In the case of the former, the nature of law created is such that it does not in any way interact with the law of other nations. While as the nature of law created by virtue of the latter is such that it tends to interact with the domestic law and should note therefore be considered ‘foreign’. Let us take an example. When United States of America enacted its patent law, it had legal no affect whatsoever on other countries and for these other countries this law is ‘foreign law’. However, when TRIPS agreement came into being, an obligation was created (with certain exceptions) upon the member states to modify their domestic laws so as to bring them in tune with TRIPS agreement. In this sense, we cannot say that ‘TRIPS Agreement’ is ‘foreign law’ in the same sense as US patent law. This obligatory nature of ‘international law’ as opposed to ‘foreign law’ is also evident from State practice. An example in this regard is the Constitution of South Africa which states that the courts “must” use international law for the purpose of constitutional interpretation and they “may” use ‘foreign law’ for such purposes.[xxii] All this may perhaps also explain the preferable treatment of ‘foreign law’ over ‘international law’ by courts in India.[xxiii]

Therefore, when one looks to international law, it is more in the sense of something being obligatory or something which tends to create liability. While as, when we look at foreign law, it is in almost all the cases persuasive. Therefore, it would be correct to state that “comparison” can take place more in relation to “foreign law” than in relation to “international law”. Moreover, it should be kept in mind it is not necessary that the extent and the manner in which courts rely on ‘international law’ will be same to that of ‘foreign law’. It would be reasonable to attempt a definition of foreign law and international law for the purpose of this and subsequent blogs in the light of abovementioned differences. However, that does not mean or suggest that it cannot be used as a ‘constructive’ tool of interpretation. It simply means that the manner in which the courts may use ‘international law’ for interpretative purposes many not be same as the manner in which ‘foreign law is used.[xxiv] And it is for this reason that I have kept “use of international law” as a separate category under ‘Jurocomparatology”. In this regard, the nature and scope of ‘Jurocomparatology’ may be explained with the help of following diagram[xxv]

Note: The green and the red boxes provide a list of issues which define the nature and scope of each field. However, this list is not exclusive.  Moreover, each of these issues will be taken up for discussion in the subsequent blogs

yasir

(Guest Faculty, Faculty of Law, Jamia Millia Islamia; Ph.d. candidate at NLU Delhi.)

[i] Elaine Mak, Judicial Decision-Making in a Globalized World: A Comparative Analysis of the Changing Practices of Western Highest Courts 2014; Prakash Shah, Globalisation and the Challenge of Asian Legal Transplants in Europe, Sing. J. L. S. 348 (2005); John Bell, Researching Globalisation: Lessons from Judicial Citations, C.J.I.C.L. 961 (2014); John O. McGinnis & Ilya Somin, Global Constitutionalism: Global Influence on U.S. Jurisprudence: Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175 (2007) [Hereinafter John & Somin 2007]; Martin Gelter & Mathias Siems, Networks, Dialogue or One-Way Traffic? An Empirical Analysis of Cross-Citations between Ten of Europe’s Highest Courts, 8 Utrecht L. Rev. 88 (2012) [Stating that in a globalised world, ‘law’, which has traditionally been the prerogative of the sovereign nation state, also seems to see some cross-border interaction. ibid at p. 88]; John C. Yoo, Globalism and the Constitution: Treaties, Non-Self- Execution, and the Original Understanding, 99 Colum. L. Rev. 1955, 2004 (1999); Anne-Marie Slaughter, A Global Community of Courts, 44 Harv. Int’l L. J. 191 (2003); Claire L’Heureux-Dube, The Importance of Dialogue: Globalization and the Inter- national Impact of the Rehnquist Court, 34 Tulsa L. J. 15 (1998); Jason Chandler, Foreign Law – A Friend of the Court: An Argument for Prudent Use of International Law in Domestic, Human Rights Related Constiututional Decisions., 34 Suffolk Transnat’l L.J.117 (2011). For an opposite view as to how we do not need more information (legal or otherwise) in the era of globalisation see Annelise Riles, Wigmore’s Treasure Box: Comparative Law in the Era of Information., 40 Harv. Int’l L. J. 221. (1999); Mark Tushnet, The Inevitable Globalisation of International Law, 49 Va. J. Int’l L. 985 (2008-2009).

[ii] Sarah H. Cleveland, Our International Constitution, 31 Yale J. Int’l L. 1, 5 (2006) [Referring to “globalisation” as one of the reasons which the justices of the US Supreme Court give to explain their willingness to look abroad (and towards international law) ; Anne Peters, Supremacy Lost: International Law Meets Domestic Constitution, 3 ICL-Journal 170 (2009) [Referring to how the convergence of international law and national constitutional law also leads to internationalization of the constitutions of the states. In other words, this convergence does not work only at a national level, but possesses the tendency to seep into the constitution of the states]; Sujit Choudhry, Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation, 74 Ind. L.J. 819 (1999); Jacob Foster, The Use of Foreign Law in Constitutional Interpretation: Lessons from South Africa., 45 U.S.F.L. Rev. 79 (2010); Anne-Marie Slaughter, Judicial Globalization, 40 Va. J. Int’l L. 1103 (2000).

[iii] Sujit Choudhry, Migration of Constitutional Ideas 2006 [Hereinafter Choudhry 2006]; David J. Seipp, Our Law, Their Law, History and the Citation of Foreign Law, 86 B. U. L. Rev. 1417–1446 (2006) [Arguing the transcendence of ‘rule of law’ into a universal principle which cannot be bottled up and applied only to one nation]; Hannah L. Buxbaum, Territority, Territoriality, and the Resolution of Jurisdictional Conflict, 57 Am. J. Comp. L. 631 (2009).

[iv] See Vishaka v. State of Rajasthan (1997) 6 SCC 241, AIR 1997 SC 3011 [Accepting “gender equality’ to be a universally recognised basic human right, the court constructively relied on international law to frame guidelines for protection of women against sexual harassment at workplace];; Oliver Meldensohn, The Indian Legal Profession, the Courts and Globalisation, J. South Asian Studies 301 (2005);  Mihaela Papa & David B. Wilkins, Globalization, Lawyers, and India: Toward a Theoretical Synthesis of Globalization Studies and the Sociology of the Legal Profession, 18 Int’l J. Legal Prof. 175 -209 (2011); Adam M. Smith, Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence: The Indian Case, 24 Berkeley J. Int’l L.218 (2006) [Refers to the initial reliance of the Supreme Court of India on international law and the subsequent intensification of the same since 1990s because of the fact that “the Indian Court […] amassed more power and the country [underwent] significant changes through its immersion in globalization.” Ibid. at p. 259]; Madhav Khosla, Inclusive Constitutional Comparison: Reflections on Sodomy Decision, 59 Am. J. Comp. L.909 (2011); Surya Deva, Human Rights Realization in an Era of Globalization: The Indian Experience, 12 Buff. Hum. Rts. L. Rev. 93 (2006); K.G. Balakrishnan, The Role of Foreign Precedents in a Country’s Legal System, Northwestern University Illinois (2008) [Retrieved from http://www.supremecourtofindia.nic.in/speeches/speeches_2008/28%5B1%5D.10.08_northwestern_university_lecture.pdf on 14.01.2013]; K.G. Balakrishnan, Justice in the 21st century: The challenge of globalisation, Introductory note for the plenary session at the Qatar Law Forum(2009) [Retrieved from http://www.supremecourtofindia.nic.in/speeches/speeches_2009/challenges_of_globalisation_for_justice_-_qatar_law_forum_may_2009.pdf on 08.09.2015].

[v] Benjamin N. Cardozo, Nature of Judicial Process 10-11 (1921) [Hereinafter Cardozo 1921]

[vi] This philosophy can be most associated with Legal Realism, the proponents of which argue that the judges decide the cases subjectively and use different legal tools and terminologies to cover-up their subjectivity.  The standard account, as put by a legal historian, is this:

“Formalist judges […..]assumed that law was objective, unchanging, extrinsic to the social climate, and, above all, different from and superior to politics [……] The Legal Realists […..], tutored by Holmes, Pound, and Cardozo, devastated these assumptions […] .They sought to weaken, if not dissolve, the law-politics dichotomy, by showing that the act of judging was not impersonal or mechanistic, but rather was necessarily infected by the judges’ personal values.” [William M. Wiecek, Liberty Under Law: The Supreme Court in American Life 187 (1988) in Brian Z. Tamanaha, “Understanding Legal Realism”, T. L. Rev. 731 (2009)].

[vii] See Cardozo 1921, supra note v at pp. 11-12.

[viii] See Hakim Yasir Abbas, Domestication of International Law in India: A Connubial or a ‘Concubine’-al Indulgence? – Part 1. Available at https://srilindia.org/2015/08/23/domestication-of-international-law-in-india-a-connubial-or-a-concubine-al-indulgence-part-i/ [Last accessed on 09.09.2015 at 21:51][Hereinafter Abbas 2015]; P.K. Tripathi, Foreign Precedents and Constitutional Law, 57 Colum. L. Rev. 319 (1957); Shylashri Shankar, The Substance of the Constitution: Engaging with Foreign Judgments in India, Sri Lanka, and South Africa., 2 Drexel L. Rev. 373 (2010); Jean-louis Halpérin, Western Legal Transplants and India., 2 Jin. Global L. Rev. 14–40 (2010); Valentina Rita Scotti, The SC of India and its Interpretative Methodology: Case-Study on the Use of Foreign Precedents in Tania Groppi and Marie-Claire Ponthoreau (Eds.) The Use of Foreign Precedents by Constitutional Judges 2013; J. Cyril Mathias Vincent, Legal Culture and Legal Transplants: The Evolution of the Indian Legal System (With Reference to Private Law), Report presented to XVIIIth International Congress of Comparative Law (2011) [Retrieved from http://isaidat.di.unito.it/index.php/isaidat/article/viewFile/44/50 on 05.09.2015].

[ix] See Abbas 2015, supra note viii.

[x] Rex D. Glensy, Which Countries Count?: Lawrence v. Texas and the Selection of Foreign Persuasive Authority, 45 Va. J. Int’l L. 357 (2005); Vicki C. Jackson, Transnational Discourse, Relational Authority, and the US Court: Gender Equality., 37 Loy. L. A. L. Rev. 271 (2003) [While referring to the use of foreign law and international law for domestic purposes says, “Looking outward to [such] transnational legal sources to encourage domestic adoption of and compliance with gender equality rights is an obvious legal strategy”, Ibid at p. 277]; Jiunn-Rong Yeh and Wen-Chen Chang, The Emergence of Transnational Constitutionalism: Its Features, Challenges and Solutions., 27 Penn. St. Int’l L. Rev. 89 (2008); David M. Trubek et al., Symposium: The Future of the Legal Profession: Global Restructuring and the Law: Studies of the Internationalization of Legal Fields and the Creation of Transnational Arenas, 44 Case W. Res. L. Rev. 407 (1994); A.E. Dick Howard, A Traveler from an Antique Land: The Modern Renaissance of Comparative Constitutionalism, 50 Va. J. Int’l L. 3 (2009); Ran Hirschl, Comparative Law: The Continued Renaissance of Comparative Constitutional Law, 45 Tul. L. Rev.771 (2010).

[xi] A large number of scholars use “comparative study of law” rather than “comparative analysis of law”. I have deliberately used the term “analysis” rather than “study” because using “study” reflects that such activity is restricted only to research point of view. While as if we use the term “analysis” it will include using such activity from “judicial” point of view as well.

[xii] W.J. Kamba, Comparative Law: A Theoretical Framework, 23 Int‘l & Comp. L. Q. 485 (1974) [hereinafter Kamba 1974].

[xiii] Gutteridge, Comparative Law (1949) in Kamba 1974, Ibid at 487.

[xiv] William Ewald, Comparative Jurisprudence (I): What Was It Like to Try a Rat?, 143 U. PA. L. REV. 1898, 1961-90 (1994-95); William Ewald, The Jurisprudential Approach to Comparative Law: A Field Guide to “Rats”, 46 Am. J. Comp. L. 701 (1998); Catherine Valcke, Comparative Law as Comparative Jurisprudence – The Comparability of Legal Systems, 52 Am. J. Comp. L. 713 (2004).

[xv] For a better idea about the nomenclature of comparative constitutional law/studies, see Mark Tushnet, Advanced Introduction to Comparative Constitutional Law 2014.

[xvi] Kamba 1974, supra note xii at p. 488.

[xvii] Max Rheinstein, Teaching Tools in Comparative Law, 1 Am. J. Comp. L. 95, 98 (1952).

[xviii] However, there will be one or two blogs where I will use Article 38 (1) (c) of the ICJ Statute to argue how engaging in foreign law has and can foster growth and development of international law.

[xix] Gerald L. Neuman, International Law as a Resource in Constitutional Interpretation, 30 Harv. J. L. & Pub. Pol’y Rex D. Glensy 177 (2006), Constitutional Interpretation through Global Lens, 75 Mo. L. Rev. 1171 (2010); Beth Lyon, Tipping the Balance: Why Courts should Look to International and Foreign Law on Unauthorized Immigrant Worker Rights, 29 U. Pa. J. Int’l L. 169 (2007-2008) [Hereinafter Lyon 2008]; Sarah H. Cleaveland, Our International Constitution, 31 Yale J. Int’l L. 1 (2006) [Hereinafter Cleaveland 2006].

[xx] Tania Groppi & Marie-Claire Ponthoreau (Eds.), The Use of Foreign Precedents by Constitutional Judges (2013).

[xxi] Ibid. at p. 5.

[xxii] S. Afr. Const., 1996, S. 39;

Section 39(1) of the South African Constitution states:

(1) When interpreting the Bill of Rights, a court, tribunal or forum

……..

(b) must consider international law; and

(c) may consider foreign law.

[xxiii]Adam M. Smith, Making Itself at Home – Understanding Foreign Law in Domestic Jurisprudence: The Indian Case, 24 Berkeley J. Int’l L. 218 (2006) [Hereinafter Smith 2006];  Also refer to Blog I in this series.

[xxiv] In order to see the relevance of the interaction between domestic legal system and international law see Melissa A. Waters, Mediating Norms and Identity: The Role of Transnational Judicial Dialogue in Creating and Enforcing International Law, 93 Geo. L.J. 487 (2005).

[xxv] This is a preliminary analysis only and may be developed in the subsequent blogs.

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