The field of study of comparative law is foreign law, and both Comparative law and Private International Law are concerned with the study and application of foreign law to local problems.

             Conflict of laws ,which  is also known as Private International Law. Private International Law is that branch of municipal law of country, which comes into play when the issue before the court affects some fact, event or transaction which is connected with a foreign system of law as to necessitate recourse to that system. It is a body of principles for determining questions of jurisdiction , etc. arising in the courts of one State but which affects foreign persons , or foreign things , or transactions entered into a foreign country . It is concerned with legal relations under municipal law having foreign elements.

             Gutteridge observes, "comparative law and private international law have much in common because the two disciplines converge on the same Focal Point namely, the necessity for international collaboration in matters of private justice. But this does not presuppose an identity of purpose or a similarity of method between these two departments of the law. The kinship between comparative law and  private international law is,  of course,  closer than that which exist in the case of the law of nations or public International Law ; nevertheless, it is more apparent than real.

             Private international law is not a fully developed and  complete in its essentials. It is a vague and has a mass of conflicting rules which differ from country to country. The objective of both the laws is to remove conflicts in the laws of different jurisdictions and to achieve unification of world laws. Comparative tends to  remedy the  defects of Private international law.
     

               There is a divergence of opinion as to whether the comparative law is a source of private international law or not. According to one view, there is no relationship between comparative law and private international law, and there exist patent dissimilarities between them. A private international lawyer, however, is only concerned with the determination of the  jurisdiction and a choice of law in cases involving foreign element, and there is no identity of purpose or similarity of methods in the two systems.
             The second  view emphasizes the established kinship in the two branches of law. According to this view, private  International law is yet in its formative stage, and the lawyers and judges  have per force to fall back upon foreign sources for the solution of their problems and this task positive enlightenment from comparative method is sought.

According to Gutteridge, the remedies this unhappy state of affairs can be sought in two directions.

1. The first remedy consists in the unification of private law, which would go to the root of the matter by removing the causes of conflict  altogether.

2 The second remedy takes the form of the codification of private international law , a method which leaves the state of conflict untouched but aims at the establishment of Universal rules of the conflict of laws which would get rid of present situation of conflicts  within conflict.

          In addition to this  remedies it has also been suggested that the malaise from which private international law is suffering is largely if not entirely due to the existence of certain specific ailments which can be cured with the aid of comparative law. 

Comparative law provides a means for remedying the defects of a private international law.

0 comments:

Post a Comment

See Also..