The Legal Systems in India-China: A Comparative Perspective

By Burke, Michael E.; Cutshaw, Kenneth A. et al. | Indian Journal of Economics and Business, September 2006 | Go to article overview

The Legal Systems in India-China: A Comparative Perspective


Burke, Michael E., Cutshaw, Kenneth A., Krishna, Rahul, Indian Journal of Economics and Business


Today, India and China are two of the world's fastest developing economies. At some level, these two countries share a lot in common; however, the differences are also stark. Presently, they are also in close competition for global trade. They both are constantly changing their laws to bring in economic reforms to keep up with the pace of development and to satisfy the highest expectations of global investors. Against this backdrop, we analyze their legal systems from philosophical, historical, social and cultural perspectives. Indeed, a comparative analysis of these legal systems reveals how globalization has the potential to change domestic legal systems all around the globe.

I. INTRODUCTION

Today, India and China hold the key for the world economy. They are slated to be the fastest growing economies. Increasingly, investors all around the globe are keeping a close watch on the developments in these two countries. Against this backdrop, this article seeks to draw a comparison between the two legal systems of India and China. Accordingly, we have identified six vital points of comparison for the legal systems, viz, (a.) Philosophical Influences; (b) Historical; (c) Constitutional; (d) Legislative; (e.) Dispute Resolution; and (f.) Public-Private Interplay.

Organizationally, the comparative analysis is divided into six sections. In section I, we trace the philosophical influences on the evolution of the legal systems. Section II briefly examines the relevant historical record to identify the process of development. History sheds light on how foreign intervention and revolution against these foreign rulers shaped India and China's modern legal systems. A brief account of reforms also gives useful insights into how globalization is changing internal legal systems around the world. Section III identifies trends of constitutionalism and modern reforms in governance. Section IV highlights the modern legislative mechanisms in both countries. Section V focuses on the dispute resolution system and identifies how two legal systems are changing their laws regarding private investors' needs for effective dispute resolution. Finally, Section VI reviews the role of public and private partnership and its legal significance in the modern economic, social and political context.

II. PHILOSOPHICAL INFLUENCES

Historically speaking, several schools of philosophy have had an indelible impact on the evolution of the legal system both in India and China. At the outset, it is instructive to have a broad overview of the philosophical influences to fully appraise the legal system. In India, Dharma has been the pre-dominant ancient philosophy seeking to create a place where individuals and societies could obtain self-realization. Interestingly, Confucianism and Daoism, in China, had shared these goals. Buddhism is a commonly shared philosophy, which have equally affected the social, political and economic development in both countries. Against this backdrop, this section critically examines the philosophical influences on the development of legal systems.

(A) Influences on India's Legal System

The ancient Indian legal jurisprudence is deeply rooted in the philosophy of 'dharma' (1), which is comparable to the modern legal jurisprudential theory of 'grund-norm' seeking to establish a peremptory norm within a legal system. 'Dharma' means 'justice,' defined as what is right in a given circumstance and seeks to protect those who follow the path of Dharma, i.e., of righteousness. The term has also been interpreted to include the uplifting of living beings. 'Dharma' was designed to regulate individual conduct, rights and liberty in consonance with the larger interest of the society. In turn, society had to safeguard and protect the interest of individuals in all respects. 'Dharma', therefore, governs the mutual obligations of the individual and society, Thus, the protection of 'dharma' was an integral aspect of public life in ancient India.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Legal Systems in India-China: A Comparative Perspective
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.