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LEGAL METHODS

FACULTY OF LAW
Assignment on topic
COMMON LAW SYSTEM.

Mirza Azhar Hussain

IInd Year

B.A.LLb(hons) self-finance
Roll no. 29

En. No. 16-5180

Under supervision: Mr. Sukesh Mishra sir.

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Acknowledgement

It gives me immense pleasure and gratitude to thank my Legal methods techer, Mr.Sukesh
mishra sir, who gave me the golden opportunity to do this wonderful project which helped me in
doing a lot of research and I came to know about so many new things. I am really thankful to
him.

Secondly, I would also like to thank my class fellows and friends who helped me a lot in
finalizing this project within the limited time frame.

Yours sincerely,

Mirza Azhar Hussain.

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Index
INTRODUCTION Pg.4

ORIGIN Pg.5

COMMON LAW IN INDIA Pg.7

ITS APPLICATION Pg.8

BIBLIOGRAPHY Pg.10

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Introduction

The term common law can refer to two things. The common law is the body of law formed
through court decisions, as opposed to law formed through statutes or written legislation. A
common law system is the system of jurisprudence that is based on the doctrine of judicial
precedent, the principle under which the lower courts must follow the decisions of the higher
courts, rather than on statutory laws.
The common law legal system originated in England, was later adopted in the United States and
Canada and is in place in most Commonwealth countries. While the English common law
system has its roots in the 11th century, the present system has evolved over the past 350 years,
with judges basing their decisions on those made by predecessors.
Common law has no basis in statute, and is established and developed through written opinions
of judges delivered at the end of a trial. These opinions are binding on future decisions of lower
courts in the same jurisdiction. However, that is not to say that common law systems derive all
of their laws from case law. Democratic countries that have adopted the common law system
have legislative bodies at the centre of their democracies, and these bodies regularly pass new
legislation. This legislation is then interpreted and applied by the judiciary during trials; these
rulings will then be applied in future cases under the doctrine of stare decisis, another name for
judicial precedent. Large bodies of law, for example those relating to property, contracts and
torts, are traditionally part of the common law. More modern areas of law such as employment
law, intellectual property law and health and safety tend to be based on statute rather than on
common law.

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“Our lady the Common Law is a very wise old lady though she still has something to learn in
telling what she knows”.[1] – FREDERICK POLLOCK

The common law, as aptly put by the fabled English jurist Sir Frederick Pollock resounds of the
comprehensive nature of law. This quintessentially universal and sentient law, since its inception
has acted as the derivative of human conduct, used to maintain order where there was none. But
what is common law? The term in itself may seem self-explanatory though most people do not
know exactly what it means: It refers to the unwritten, judge made law as opposed to written law
(statutory law). Common law was developed by judges through the decisions of the courts. A
common law system was first developed in England from where, with the aggressive expansion
of the English empire this system of law too traversed to different parts of the world, of which
India became one of its destinations. In the subsequent paragraphs we will discuss the origins of
this form of law and its application within the Indian context.

COMMON LAW: DEFINITION AND ORIGINS

The Common Law is a body of law derived from judicial decisions known as case laws, rather
than from statutes. The Common Law derived its authority from the universal consent and
practice of the people from time immemorial. This system of jurisprudence initially originated in
England. Common Law is unintelligible until expressed in a judgment. It includes those rules of
law which derive their authority from the statement of principles found in the decisions of courts.
This system of law includes tradition, custom and usage, fundamental principles and modes of
reasoning. It is the embodiment of broad and comprehensive unwritten principles, which were
derived out of natural reasoning and innate sense of justice.

A Common Law system requires several stages of research and analysis to determine the
appropriate law in a given situation. The facts are ascertained properly, relevant cases and
statutes are to be identified, and the principle, ideas by various courts need to be understood and
applied in order to determine how they would help in understanding the point of law in question

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within that case. The common law is quite different from codified law as it follows the judgment
while the codified law precedes it. Therefore it can be said that it is a system of rules and
declarations of principles from where the judicial ideas and legal definitions are derived. This
law is ever changing as its principles are influenced by the changing conditions and requirements
of the society.

The origin of the common law system can be traced back to England, where after the Norman
conquest (1066 A.D.) . The new ruler of England William II brought about a varied number of
governmental reforms, as a consequence he also overhauled the legal setup of England.Earlier
the legal system of England comprised of county courts presided by the bishop and the county
sheriffs, who exercised both criminal and civil jurisdiction. William II introduced the system of
Eyre, wherein four judges were appointed by the King, their main function was to review the
activities of the county courts and hear cases of appeals. It was used as a tool to centralize
control over local courts, thus it provided a basis for the development of common law in
England.

The dawn of this system came with Henry II ascendance to power. He is considered the
harbinger of a common law system as he created a system of law, common to the whole of
England. Some of the features of this system were; firstly a practice developed of sending judges
from his own court i.e. a central court established at Westminster, to places around the country
for deciding cases in the local courts. These cases were decided with the help of local customs.
Secondly, these cases were recorded and filed at the permanent court in Westminster, with the
due passage of time these decided cases began to be referred in other cases having similar facts.
This principle of law came to be known as precedents. Thirdly, local customs became the
primary source of law as they were used in trials to decide points of law. A system of jury was
also developed where citizens decided matters of law based on common law knowledge and
local customs. Hence the culmination of a centralized system of law with the practice of keeping
record of decided cases for future reference wherein customs also played an exemplary role to
decide nuanced points of law together gave birth to what is referred to as “The common law”.

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COMMON LAW IN INDIA: A BACKDROP

The existing Indian legal system can be said to have a contemporaneous existence i.e. with the
advent of the English in India. During the 1600s when the enterprising English East India
Company forayed into India on the backdrop of trading interests little did the Indian masses or
even their future rulers know that they would shape the very foundation of the modern Indian
society. This transformation happened in various ways but the most relevant of those
developments was the setting up of a new type of judicial system, which was primarily based on
the common law system followed in England. As the East India Company took control of
territories, leased to them by the Mughals for trading purposes, they were anointed the power to
govern all persons belonging to the English government and the company within these territories
according to the English common laws by the Crown.

After the company won the battle of Plassey (1757), the Mughal legal system was slowly
replaced by the English legal system. In the seventeenth-century admiralty courts were set up in
the three presidency towns of the British i.e. Bombay, Madras, Calcutta. These courts derived
jurisdiction directly from the company and not the crown to decide civil and criminal matters. In
the eighteenth century through a royal charter Mayors were established, they derived authority
from the crown. This was the first step in the establishment of a uniform legal system in India. A
system of appeals to the Privy Council (a body of advisors to the crown) from such courts was
also initiated. In the late eighteenth century, the mayor’s court was replaced with a supreme court
in the presidency towns. “This was the first attempt to create a separate and independent judicial
organ in India, under the direct authority of the King. The Chief Justice and puisne Judges were
appointed by the King. This court had jurisdiction over civil, criminal, admiralty and
ecclesiastical matters and was required to formulate rules of practice and procedure. Appeals
from this court lay to the Privy Council.”[2] It was to be a court of record and was to hold such
jurisdiction as the court of Kings Bench had in England by the common law of England. Local
civil and criminal justice was left under a system known as the “adalat system”.

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Later by the mid nineteenth century through another act of the crown i.e. Letter Patents Act of
1862, the High Courts were established in place of the Supreme Court in each of the presidency
towns and were further established in other provinces as well. These courts exercised the same
powers as that of the Supreme Courts and appeals lay to the Privy Council. The setting up of The
Law Commission to review the Indian legal setup lead to the coding of the laws, such as the
Indian Penal Code of 1862 regarding criminal matters was drafted under the stewardship of T.B
Macaulay. The Evidence Act of 1872 and The Contracts Act of 1872 were envisaged by the
same commission. Thus all these developments lead to the creation of a judicial system, which
was predominantly based on the Common Law system of England.

COMMON LAW: DOES IT APPLY IN INDIA?

The application of common law has been overarching in the Indian context; it has been
enshrined in the Indian legal system over the space of two centuries by the English to the point
that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said that
common law has been applicable here though in a different format than that of England as the
needs and demands of the Indian society were different from that of the English. It is to be found
out that much of the law compiled in codes we have today were primarily derived from the
Common Law principles. The basic statutes governing civil and criminal justice are the Indian
Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the
Code of Civil Procedure, 1908. It has already been discussed how these laws came into being,
one thing can be said about these legislations is that they have stood the test of time with
minimal amendments. Codification of laws made the law uniform throughout the country and
fostered a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the
nation.

Another contribution to Indian legal system by Common Law has been the adversarial system of
trial. In this system the accused is presumed to be innocent and the burden is on the prosecution
to prove beyond reasonable doubt that he is guilty. The accused also enjoys the right to silence

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and cannot be compelled to reply. The truth is supposed to emerge from the respective versions
of the facts presented by the prosecution and the defence before a neutral judge. Both the parties
have a right to question their witnesses and the opposing side has a right to test their testimony
by questioning them. . The judge acts like an umpire to see whether the prosecution has been
able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused, his
ultimate duty being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application within the
Indian legal system, a precedent in Common Law parlance means a previously decided case
which establishes a rule or principle that may be utilized by the court or a judicial body in
deciding other cases that are similar in facts or issue. Initially the English judges and barristers
presiding and practicing in the Indian courts followed the decisions of the courts in England,
thus slowly the concept of precedents came to be ardently followed within the Indian courts. This
law has been carried forward in the present day Legal system as in regard to the judgments of the
Supreme Court of India the Indian Constitution provides that “The law declared by the Supreme
Court shall be binding on all courts within the territory of India.”[3]Hence it can be said
unequivocally that Common Law has wide application within the Indian Legal fold as many of
the features of this system have been adopted and further developed from that of The English
Common Law System, even though its application hasn’t been discussed in entirety and only the
major principles derived from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily a method
of administering justice, which has incorporated different aspects of the legal pedagogy and
practice with the help of deliberations of laymen and the learned over the course of time. In the
Indian context the common law initially was applied for the convenience of the English, so they
could govern their territories properly but, as they became the overlords of India the common
law became common for Indians. There developed a symbiotic relationship between the Indian
customary law and the common law which gave birth to the modern day Indian legal system.
Hence we can say India has an organic law as a consequence of the common law system.

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BIBLIOGRAPHY

[1] (Pollock Fredreick, The genius of the common law, 1911).

[2] KG Balakrishnan, An Overview of the Indian Justice Delivery Mechanism,2008,


http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf.

[3] Indian Constitution, Art. 141.

[4] S.K. Mishra, Legal Language, Legal Writing & General English, (1st ed.), Allahabad Law
Agency, (2008).

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