Synopsis.docx

09BAL014

Characterization Characterization on the basis of comparative law

 PROJECT FOR THE SUBJECT 

Conflict of Laws  SUBMITTED BY   Sarita Gaur   Roll o!"#B$L"%&  S'('st'r ) I*   B!$!LL!B! +Hons!,

UNDE !"E #U$DANCE %&  Ms! B-u(i.a  Ms!  B-u(i.a an/a  $sst! Prof!0 ILU 

 Su1(itt'/ to  ISTITUTE OF L$2  L$2   IRM$ UI3ERSITY0 UI3ERSITY0 $HMED$B$D

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Chapter 1 $ntro'(ction 1)1 $ntro'(ction*+

Characterization or classification of a given factual situation is one of the necessary steps in the decision of a case having some foreign elements. Due to diversity in the laws of the various countries of the world, at times characterization appears to be an unsolvable problem.

For the same four theories of characterization have been

 propounded viz by lex fori, under the lex causae, in two stages of primary characterization and secondary characterization and the last based on comparative law and analytical jurisprudence. Comparative law is a method of study of various legal phenomena, by the application of the comparative method, it has become possible to reveal the general and the special in world legal systems of today. The theory of comparative law and analytical jurisprudence was espoused  by the author of encyclopedia of comparative conflict of laws, arnst !abel and views similar to his were advanced by in ngland by ".. #ec$ett who said that conflict rules should use %conceptions of an absolute general character &) The theory has been criticized by many, saying that the theory is vague and impracticable as there are very few principles of universal application and very little measure of agreement as what they are. The study of comparative law is applicable of  revealing differences between domestic laws, but of hardly of resolving them. ' 1 Conflict of (aw by ).* Colllier, Cambridge +niversity ress. th

2 Diwan aras ,rivate -nternational (aw,  ed. 2

1),esearch problem*+Comparative law has been criticized for excessive doctrinarism

and that it is impracticable. This paper ma$es a study on the use and various aspect of  theory of comparative law for decision of the cases having foreign elements. 1)-".pothesis*+

The hypothesis developed on the basis of study in this research case is as follows/ 

There is no generally agreed or systematically elaborated comparative law methodology.

The discipline of comparative law is still not fully developed and is still in infancy.

1)4 esearch /etho'olo.*+ The research methodology herein is used is the doctrinal

and analytical one. Thus, the research being doctrinal one, the material has been collected from the secondary sources, i.e. boo$s, various websites, and case laws. 0part from secondary sources primary sources by case study has also been done.

1) %b2ective*+

The fundamental objectives of the present research project are/1 

To analyze the

theory of comparative law and analytical jurisprudence in

characterization of law. To study the merits and drawbac$s of theory of comparative law.

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1)3 cope of research pro2ect*+

+se of contemporary law is considered to be one of 

the difficult id contested from all sides. The issues of its scope, purpose and utility , its merits and demerits have been discussed in the preset project. 1)5 C"E/E %& !"E !UD6*+

Chapter &1-ntroduction Chapter '1 2eaning and Concept of comparative law. Chapter 31 4cope, purpose and utility of comparative law. Chapter 1 2erits and demerits Conclusion 1)7 Literat(re review*+

The danger with the fashion ability of combining the comparative method and law reform is that the combination may become distorted and is liable to be misused. There are two particular dangers which can arise from the fashion ability of the combination. Firstly, there is the danger that a foreign solution will be adopted merely because it is foreign. 4econdly, foreign solutions may be consulted at length because it is fashionable and because public opinion demands it, but no practical use may be made of them at the end of the day. -n situations where this happens, it would be better for the reformer to have been honest and not have referred to the foreign research at all, rather than wasting so much precious time, energy and money on it. 2arsh is particularly critical of this $ind of to$enism due to the fashion ability of the combination. 5e says that a gap often exists 6between very extensive comparative research in connection with a legislative project and a practical result on the proposals made63

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