COMPARATIVE LEGAL SYSTEM

H.P.NATIONAL LAW UNIVERSITY, SHIMLA

Assignment-

COMPARATIVE LEGAL SYSTEM

SUBMITTED TO-

DR. VED PRAKASH SHARMA

DR. GURWINDER SINGH

SUBMITTED BY-
SHASHANK TIWARI
ROLL NO- 36

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 COMPARATIVE LEGAL SYSTEM

1.INTRODUCTION-

Globalization of law may be defined as the worldwide progression of transnational legal

structures and discourses along the dimensions of extensity, intensity, velocity, and impact. We
propose that a theory of the global penetration of law will require at least four elements—actors,
mechanisms, power, and structures and arenas. All of us associate globalization with the free
movement of capital, labor, goods and services across national borders. However, these
parameters of economic globalization cannot be viewed in isolation from other aspects such as
the free exchange of ideas and practices. Especially from the viewpoint of developing nations,
the benefits of increasing foreign investment in any particular sector should be assessed not only
in terms of capital-flows and wealth creation but also in terms of technology-transfer and the
infusion of know-how and best practices. From this perspective the legal systems in various
countries have a lot to learn from each other – both in terms of institutional design and the
evolution of substantive laws. However, there have also been some arguments made against the
free exchange of ideas and practices between legal systems of different countries.

Through this paper in this note I would like to briefly examine on the linkages between
increasing globalization and the legal system. One conceptual approach for examining the same
is to survey the legal challenges thrown up by the changing socio-economic conditions. With
increasing trade and investment across borders, there is an imperative need for all of us to be
sufficiently invested in the multilateral processes of rule-making and dispute-resolution while at
the same time offer a balanced response to the resulting complexities through our domestic legal
systems1

2.The Concept of Globalization-

Globalization is an ambiguous term. It means different things to different people. It may mean
different things to the same person. So what does globalization mean? Is it a new stage in human
civilization that goes beyond national borders or native cultures? Could it lead to a universal
entity within which criteria of race, color, religion, class, language … etc, would disappear? Or is
it just another transformation in world economy? Is it a means of dominance or another face of

1
Hon’ble Mr. K.G. Balakrishnan, Justice in the 21st century: The challenge of globalisation’ 73 QATAR L.J. 733,
737-38 (2009).

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neocolonialism intending to control people’s minds and lifestyles2, or to make their future
dependent upon the actions and behaviors of market whales and business groups?

With the rise of Japan and Germany as main economic powers in the beginning of 1960s,
scholars started to deal with the term as a merely economic phenomenon (Soubbotina & Sheram,
2000). But after the “withering” of Communism and the end of the Cold War, the term becomes
the ‘buzzword’ of our time and its meaning remains elusive. It is now no more an economic
phenomenon or a merely mental state as perceived during the Cold War, but it transforms into a
movement being enhance through concentrating on-

(a) Global common principles such as democracy and human rights,

(b) Growing interdependence between states, and

(c) Unprecedented revolution in information technology.

The quantitative and qualitative effects of this process are seen in many aspects of human life.
Within these perspectives, globalization becomes a process of reshaping human life through
globalizing certain values which include economic patterns related to free trade, production,
consumption and distribution; cultural patterns related to entity, language, and lifestyle; and
political patterns related to democratic process and human rights

3.Legal challenges thrown up by the forces of globalization-

Until a few months ago, most of the discussions about the legal challenges resulting from
economic globalization were centered on the multilateral efforts to promote international trade
and investment. In this regard, there has been considerable scholarship on the dispute-resolution
functions of the World Trade Organization (WTO) as well as the role of arbitral institutions
which facilitate dispute-resolution in the event of commercial disputes between private parties
located in different national jurisdictions3. There has also been some attention given to the
settlement of investment disputes between foreign investors and host governments. Hence,

2
Chandhoke, N. (2002). ‘The Limits of Global Civil Society’, in H. Anheir, M. Glasius, and M. Kaldor (eds) Global
Civil Society: A Reader Oxford: Oxford University Press.
3
Bhagwati, Jagdish (1997). ’Globalization, Sovereignty and Democracy’, pp. 263–81, in Axel Hadenius(ed.),
Democracy’s Victory and Crisis. Cambridge: Cambridge University Press

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themes related to international trade law and investment laws have become quite prominent in
legal exchanges as well as education.

4.The circulation and spread of legal institutions-

Can democracy be exported in Iraq by means of military occupation? Can the President of the
United States ask Russia to respect democracy, that is “a rule of law and protection of minorities,
a free press and a viable political opposition”? Can the World Trade Organization (hereinafter
WTO) require that the public administration of Malaysia – like the governments of all other
States - meet the obligation to open participation in the tendering procedures for the awarding of
government contracts? Can all nations be asked to respect a single, universal catalogue of human
rights? Can the United States require that domestic consultation procedures be adopted by
international organizations? Can free trade liberalization be used to induce China to introduce the
rule of law into its domestic legal system?
The achievements of occupation forces in Germany and Japan after World War II, as well as the
more recent achievements of the UN-authorized, multinational stabilization force in Bosnia and
Herzegovina could be repeated. Foreign military forces did indeed import democracy into those
three countries. Nonetheless, democracy, in the sense in which we commonly understand it, is a
complex set of institutions which have developed over time in the Western world, first in the
United States, and then elsewhere4. Is it right to consider these institutions as superior to others,
and to transplant them into countries which belong to different traditions? Would it not be
desirable that political institutions be indigenous5, making them more likely to be accepted by
their respective societies? Insofar as history demonstrates the existence of different forms of
democracy6, which of them should be exported? Or, on the contrary, does the diversity of
democratic forms actually facilitate their successful transplant in different social and political
contexts?
These principles also apply in countries where the awarding of government contracts is aimed at
pursuing specific goals, such as the development of disadvantaged areas or the assistance to
socio-economically disadvantaged populations. In Malaysia, for instance, domestic legislation

4
G. Carmignani, Elementi del diritto criminale, Naples, Printing Press of P. Androsio, 1854, p. 8.
5
S. Krasner (ed.), International Regimes, Ithaca, Cornell Univ. Press, 1983 (3rd ed. 1995).
6
V.E. Orlando, La rivoluzione mondiale e il diritto, in “Studi di diritto costituzionale in memoria di Luigi
Rossi”, Milan, Giuffrè, 1952, pp. 777–778.

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accords the indigenous Bumiputera population a preferential treatment in terms of access to bids,
prices and other contractual provisions.
However, the collapse of several financial institutions in recent times highlights the need for
paying more attention to strengthening our domestic legal and regulatory systems before shifting
the focus to multilateral negotiations and rule-making7. In India, the retention of stringent
governmental controls over the banking sector has mitigated the impact of the current crisis, but
many export-dependent sectors are feeling the brunt of the same. For a country like ours where
financial sector reforms began only in the 1990’s, there is an obvious need to adopt a pragmatic
approach towards international trade and investment. There is no doubt that the progressive
lowering of restrictions on foreign investment and private enterprise has led to the expansion of
several sectors such as banking, telecommunications, information technology, broadcast media
and infrastructure among others. The inflow of foreign capital and firms in these sectors has
undoubtedly created many jobs, created an environment of competition and increased the choices
available to consumers8. The expansion of these sectors has also created ‘regulatory gaps’ which
have been addressed through the creation of independent regulatory agencies. The task of these
independent regulatory agencies is to assist in the formation of policies and devise rules to
ensure a fair balance between the interests of service-providers, consumers and the government.
Several specialized tribunals have also been set-up for sectors such as telecom and securities
regulation to expeditiously decide disputes pertaining to the same.
However, there is no consistent correlation between the quantitative growth of foreign trade and
investment on one hand and the indicators of social welfare and inclusive development on the
other hand. Many economists have also argued that the progressive financial sector reforms have
only benefited the traditional elite sections of society and that the ‘trickle-down’ benefits for the
masses have been negligible. Some have even argued that the forces of economic globalisation
have actually widened the existing socioeconomic inequalities. A glaring symptom of the same is
the rapidly increasing rates of migration between the rural areas and the urban centres. Cities
such as Delhi, Mumbai, Bangalore and Hyderabad among others have grown exponentially on
account of the expansion of the services sector, which creates both well-paying jobs for qualified

7
Chatterjee, P. (1996).Nationalist Thought and the Colonial World: A Derivative Discourse. New Delhi:
OxfordUniversity Press
8
Day, G. and Murdoch. J. (1993). ’Locality and Community Coming to Terms with Place’, The Sociological
Review, vol. 7: 82–111.

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professionals as well as low-end jobs in the informal sector. Millions of people leave their
country-side homes each year with the hope of better employment prospects. However they
instead end-up living in even worse conditions in the cities where the infrastructure has not kept
up with the rise in population. Our persistent failure to provide quality education and healthcare
to a large part of our population further exacerbates the socio-economic inequalities in our
society. There is a wide gap between the opportunities available to those who can speak the
English language and operate computers as opposed to the rest of our people. Such inequity
sometimes results in localised conflicts between the ‘haves’ and the ‘have-nots’, which are often
re-inforced by traditional social divisions based on caste, religion and regionalism.9

5.The impact of globalisation on legal systems-

The functioning of our legal systems is also being continuously re-shaped by the various socio-
economic parameters of globalisation. For instance, reliance on foreign precedents is necessary
in certain categories of appellate litigation and adjudication10. For instance in litigation
pertaining to cross-border business dealings as well as family-related disputes, the actual location
of the parties in different jurisdictions makes it necessary to cite and discuss foreign statutes and
decisions. Hence, domestic courts are called on to engage with foreign legal materials in fields
such as ‘Conflict of Laws’ where they are required to rule on aspects such as proper jurisdiction
and choice of law as well as recognition and enforcement of foreign decrees and arbitral awards.
Furthermore, domestic courts are also required to look into the text and interpretations of
international instruments (i.e. treaties, conventions, declarations) if their respective countries are
parties to the same. However, the room for debate arises with respect to the citation of foreign
precedents for deciding cases where they may not be enough guidance or clarity in domestic law.

With the end of the Cold War, liberalist nations have become more interested in promoting the
free trade principle, where market mechanisms must be dominant, and governments must not
interfere in economic activities. The economic and military strengths of these nations assist them
to pursue this objective through convincing many other countries to conduct structural changes

9
Surya Deva, ‘Globalisation and its impact on the realisation of human rights – Indian perspective on a global
canvas’ in C. Raj Kumar and K. Chockalingam (eds.), Human rights, Justice and Constitutional Empowerment
(New Delhi: Oxford University Press, 2007) at p. 237-263
10
Ralf Michaels, ‘Global Legal Pluralism’ (2009) 5 Annual Review of Law and the Social Sciences 243.

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in their economic, political, cultural and social spheres11. As a result, this process has brought
profound impacts on the various aspects of human life in many societies, particularly of those
involved. Not only it changes many types of lifestyles, but also involves the bridging of
temporal, spatial, and cultural distances in new ways, and that these processes tend to be driven
by the revolutions in transport technologies, communications, the internationalization of capital
notions of the world system, and post industrialism12.

The first is the nation state and the nature and extent of its sovereignty. In modern Western
political thought, the idea of the state is linked to the notion of an impersonal and legal or
constitutional order with the capability of administering and controlling a given territory. The
classic concept of sovereignty entails that there is an authority in a political community that has
undisputed right to determine the framework of rules and regulations in a given territory and to
govern accordingly. Over time, in modern democratic states sovereignty came to mean the
supreme law making and decision-making power of a community whose ultimate source of
sovereignty lies with the people. The second aspect of sovereignty in the international context
means states should be regarded as independent in all matters of internal politics and should in
principle be free to determine their own fate within this framework. It implies the assertion of the
states of sole rights to jurisdiction over a particular people and territory (Held 1995: 38–40)

Many issues raised by globalization have significant implications for traditional concepts of state
sovereignty at three levels; (a) traditional domains of state activity and responsibility(defence,
communications, legal systems) can rarely be fulfilled without collaboration with other states; (b)
states have to operate within a post cold war situation where the US has emerged as the sole
military superpower in the Western world; (c) states face pressure from global civil society
organisations on an increasing number of issues13. Thequestion is: whether sovereignty still
remains intact while political autonomy of the state has diminished or whether state actually
faces a loss of sovereignty; whether the nation state is being strengthened in certain respects in so
far as it suits corporate interests or is weakened in both its economic and political sovereignty?

11
Corporate Transnationalism to Local Interventions. (International Political Economy Series). London: Michelman.
12
Doornbos, Martin (2003). “‘Good Governance’:The Metamorphosis of a Policy Metaphor”, Journal
ofInternational Affairs, 57(1): 3–17
13
Collins, R. 2004. Rituals of Solidarity and Security in the Wake of Terrorist Attack. Sociological Theory 22: 53–
87.

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The second notion is democratic citizenship. The main principle of democracy is that people
should be self-determining14. Scholars writing on globalization in the 1990s assumed that the
removal of commercial barriers by national governments, greater mobility of people and the
cultural impact of global information flows would pave the way for democratic forms of
government. These assumptions are rendered highly problematic by the growing gap between the
democratic governments of nation states that have to be accountable for their performance
(mostly through electoral politics) within their territorial boundaries, as op-posed to the
multinationals that are not accountable to the wider body of citizens of any nation. Indeed talk of
a ‘global democracy deficit’ comes from many quarters most notably with regard to interstate
agreements or interdependent financial markets that are not accountable to any democratic will
formation (Bohman 1999; Anderson 2002); or whenever the set of those involved in making
democratic decisions fails to coincide with the set of those affected by them. The case of the
European Union is an example of democratic deficit caused by theshift away from national
decision-making bodies to bureaucratic decision-making committeesof experts.

The nation state was regarded as the political expression of the democratic will of the people.It
was spread throughout the world with an almost ‘missionary zeal’ to the newly colonized areas
of Asia, Africa and Latin America as part of the ideological fight against colonialism. It became
central to the twin projects of nation building and secular nationalism15. Secular nationalist
loyalties ‘were based on the idea that the legitimacy of the state was rooted in the will of the
people, divorced from any religious sanction’ in the post-World War II period, the role of
the nation state was critical. The interventionist state took many forms around the globe: the
Keynesian welfare state involved extensive state guidance of a predominantly private economy,
the developmentalist state in third world structures focused on overcoming the
underdevelopment caused by colonialism and the Soviet model of the state that ruled out private
economy (Rapley 2003).The concerns of the industrialised countries in the cold war period were
strongly influenced by the misery caused by the depression that created the desire for full
employment derived from the conception of a welfare state, and the legacy of the second world
war which motivated the quest for peace and reconstruction. In the post-colonial states like India

14
Goldstone, J. A. 1991. Revolution and Rebellion in the Modern World. Berkeley, CA: University of California
Press
15
Kennedy, P. 1987. The Rise and Fall of the Great Powers: Economic Change and Military Conflict from 1500 to
2000. New York: Random House

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thestate was committed to economic development through planning with the explicit purpose
of raising productivity and output. There was a conscious attempt to limit the degree of
opennessand integration with the world economy in pursuit of a more autonomous, if not self
reliant,development. The state was assigned a strategic role in development because the market
byitself was not perceived as sufficient (Nayyar 2002a).

5.1 Democratic Citizenship Rights-

It is widely acknowledged that national governments are no longer the site of democraticpolitics
and democratic citizenship rights. Several scholars have argued that in an age of globalisation
citizenship cannot be confined within the boundaries of nation states; it mustbecome
transnational. Proponents of cosmopolitan citizenship like David Held for instance,advocate the
need for a cosmopolitan democratic law to which citizens whose rights havebeen violated by
their own states could appeal (Held 1993). Whether the present institutionalframework, the UN,
UNICEF, UNESCO, UNDP, the Bretton Woods, WTO and IMF is adequate,appropriate, or
sufficient to meet the governance needs of the contemporary world economy andpolity is a major
concern. Griffin calls for the scrapping of non-performing global institutions such as the World
Bank, and the transformation of IMF into a world central bank, and the creation of new global
institutions to enforce world civil and criminal laws (Griffin 2003).However, focusing on
institutions as David Held does, misses out certain issues that havegained significance in the
contemporary world. Whether the present institutional framework is adequate or sufficient to
meet the governance needs of the contemporary world economy and polity has a lot to do with
the nature and scope of international economic transactions16. Since there is considerable
structural change in international trade flows and international capital movements, cross border
transactions in technology and movements of a larger number of people, developing countries
are spectators rather than participants. Thus, asymmetrical rules (appoint made earlier) need to
be reassessed17. Moreover, there are almost no mechanisms, let alone institutions, which could
coordinate macroeconomic policies and their management across the world18. Institutional

16
McNeill, W. H. 1963. The Rise of the West. A History of the Human Community. Chicago, IL: University of
Chicago Press.
17
Bhaduri, Amit (2002). ‘Nationalism and Economic Policy in the Era of Globalization’, pp. 19–48, in Deepak
Nayyar (ed.), 2002
18
Mann, M. 1986, 1993. The Sources of Social Power. Vols 1, 2. New York: Cambridge University Press.

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responses are obviously of great importance but global institutions are only effective when they
promote and deepen democratization and when they facilitate popular participation

Another set of scholars view the growth of a global civil society consisting of transnationalnon-
governmental organizations, political activists, social movements, religious denomin-ations and
trade unions to business and financial groupings as having a democratic basis. In many ways
global civil society represents transnational associational life that challenges the state system in
two ways (Lipschutz 1992). On the one hand, it has focused attention on issues such as human
rights, the environment, development that are within the province of state sovereignty. On the
other, it has challenged the contours of the world economic order as mandated by the World
Trade Organization, the World Bank, and IMF. There have been major protests in Seattle, at
Prague and then in Geneva. But, from these actions it is difficult to conclude that global civil
society is autonomous of other institutions of international politics or can provide an alternative
notion of governance. This gives rise to the question whether they can counteract deep-rooted
structures of global capitalism and provide an alternative to the present system? While it is
perfectly true that global civil society has critiqued the workings of the international economic
order, it is found that most of these organizations rely upon states, their institutions and laws.
While they might critique the practices of states, in the field of human rights, they also require
states to create political and legal frameworks that facilitate setting up of the rule of the law, civil
and political rights, or environmental protection19. In effect as Chandhoke points out ‘the very
states that global civil society supposedly opposes enable the latter in the sense that only they can
provide the conditions in which the civil society agenda is realized

5.2 Nation State, Cultural and Religious Nationalism-

Since 1980 new frames of reference related to cultural and religious identity have emerged along
with local, regional and global interconnectedness20.

These demands range from a greater share of political power and respect for cultural identity to a
more balanced allocation of resources for development that would minimize the demands to

19
Emerson, Rupert (1960).From Empire to Nation: The Rise to Self Assertion of Asian and African Peoples
.Boston: Beacon Press.
20
Ahluwalia, Montek. S. (2002). ‘State-Level Performance under Economic Reforms in India’, pp. 91–124,in Anne
O. Krueger (eds.), Economic Policy Reforms and the Indian Economy. New Delhi: Oxford Univer-sity Press

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which minorities are subjected to in multiethnic societies. These demands came along with
radical changes in eastern European com-munist regimes that were overthrown in a dramatic
manner in the 1980s and which then brought their economies into line with the requirements of a
global market economy driven by competition Elsewhere in some third world countries, along
with changes in approaches to the market, ethno-national entities, long considered extinct, and
which had not been an integral part of the nationalist movements of the 19th century
came forward with demands for independent sovereign statehood and many states were caught
in a maelstrom of redefinitions of the nation state21. The argument of nationalities asserting
their political rights of autonomy have in recent years spread to countries like Indonesia, China
and Africa. Some have noted a global religious revitalisation since the communications
revolution has led to the development of transnational religious communities However, the
matter is complex22. Some scholars argue that nationality‘answers one of the most pressing needs
of the modern world, namely, how to maintain solidarity among the populations of states that are
large and anonymous, such that their citizens cannot possibly enjoy the kind of community
that relies on kinship or face-to-face interaction’.

5.3 Laws governing legal globalization-

We have thus far examined the evolution of principles, norms and institutions that we can regard
as “common,” because they have either developed simultaneously, been transplanted from one
national context to another, been exported from domestic to global law, or emerged directly in
the global legal system to address specific needs. It is now worth investigating the laws
governing this process of legal globalization.
The answer – or the attempt at an answer – will touch upon three points: the cohabitation
between legal unity (of the world) and differentiation (of its parts); the process and the growth
factors of the universal legal patrimony; the balance that emerges between domestic laws within
the global arena. With reference to the first point, the most striking feature is the contrast
between a universal legal patrimony, which reinforces the legal unity of the world, and the
extreme variety of local legal systems. On the one hand, there are some common principles and

21
W Twining, General Jurisprudence— Understanding Law from a Global Perspective (Cambridge, Cambridge
University Press 2009)
22
Anderson, James (2002 Transnational Democracy: Political Spaces and Border Crossings, London andNew York:
Routledge.

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institutions that no domestic legal system can do without; on the other hand, one notices a
marked differentiation. This tension between increasing unity and an increasing differentiation
lends itself to rival interpretations. Those who believe in the central role of the States see this as
a confirmation of their theory. Those who argue, by contrast, that the global legal order has taken
root, emphasize unity over differentiation. The real challenge is to interpret these apparently
contradictory elements in a holistic way.

6. CONCLUSION-

We have been looking at the globalization of law along a number of vectors. The global distrust
of hierarchical authority and concentrated public and private power generates growth in
administrative law, constitutional, and other rights law, and in legal regulation of economic
enterprise. The global desire to protect the individual generates growth in personal injury,
consumer protection, environmental law, and even family law. This is an ambiguous
formulation. It assumes a reality that does not and may never exist. A unitary cosmopolitan legal
system is not on the horizon nor is it perhaps among current ambitions. Instead a process is under
way that affects certain positive principles and branches of law. Recognizing the existence of
shared principles in some sectors is useful not for “drafting cosmopolitan legal codes, but only
for demonstrating the fundamental ability of all cultures to communicate

The globalization of markets and business enterprise generates the growth of a worldwide law of
business transactions. The global multiplication of exterior business relationships and the growth
of arms-length regulatory styles fuel a growing demand for lawyers and their involvement in
more and more social, economic, and political relationships23. Thus in light of all the above, it
may be inferred that there is an increasing need for a global mechanism of legal education, law
enforcement and also harmonization of most of the transnational laws. Having stressed on the
need for globalization, we need to adopt our domestic structure to be able to keep pace with the
movement of globalization both in terms of legislation and in terms of legal education and
practice.

23
F. D’Agostino, Pluralità delle culture e universalità dei diritti, Turin, Giappichelli, 1996, p. 45.

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