Professional Ethics:-

PRINCIPLES OF PROFESSIONAL ETHICS

Individuals acting in a professional capacity take on an additional burden of ethical

responsibility. For example: professional associations have codes of ethics that prescribe
required behavior within the context of a professional practice such as medicine, law,
accounting or engineering. These written codes provide rules of contact & standards of
behavior based on the principles of professional ethics, which include:

• Confidentiality

• Impartiality

• objectivity

• Openness; full disclosure

• Due diligence/duty of care

• Fidelity to professional responsibilities

• Avoiding potential or apparent conflict of interest.

Professional ethics encompasses an ethical code governing the conduct of persons engaged in
the practice of law as well as persons engaged in the legal sector. All members of the legal
profession have a paramount duty to the court and towards the administration of justice. This
duty prevail over all other duties, especially in the circumstances where there may be a
conflict of duties. It is important that legal practitioners conduct themselves with integrity,
provide proper assistance to the court, and promote public confidence in the legal system. In
carrying out their duties, they are required and expected to deal with other members of the
legal profession with courtesy and integrity.[1] Advocates, apart from being professionals,
are also officers of the court and play a vital role in the administration of justice.
Accordingly, the set of rules that govern their professional conduct arise out of the duties that
they owe to the court, the client, their opponents and other advocates. Rules on the
professional standards that an advocate needs to maintain are mentioned in Chapter II, Part
VI of the Bar Council of India Rules. These Rules have been provided under section 49(1)(c)
of the Advocates Act, 1961

LAW AND ETHICS

Law is a code of conduct which the authority in power prescribes for society. It basically
differs from ethics in its option to use force if and when necessary and by the fact that it is
backed by power. Laws are, by and large, fair and moral. But it is not easy to accept that laws
can be the foundations of ethics, or even that laws can ensure ethical behaviour. There are
many situations in life, where just following the law does not make one ethical. For example,
if your next door neighbour has just today lost their only son in a motorcycle accident, just
when you wanted to celebrate the birthday of your only son with gaiety, music, guests,
enjoyment and much merry making, there is no law to prohibit you from doing so. If you
decide not to, it is because of the dictates of your conscience, not because of the dictates of
the law. Your conscience, your ethical value system and your principles forbids you to rejoice
when some one else nearby is in sorrow. The law has no role to play in such a situation.
Moreover, not all laws have moral choice. There are many laws which do not involve any
ethicality questions - for example, we are required to walk on the left hand side of the road.
This is done to ensure traffic control and the traffic discipline, but a question of ethics is not
involved here. Again, all moral and ethical actions do not involve the law. For example, it is
ethical to love and respect your parents, but there is no law for it, except when they are
deliberately mistreated by their children. Law represents the minimum standards of behaviour
expected from people. Merely following the law, does not make one ethical. Another aspect
of the legal system is that it prohibits us of certain actions. It also spells out the negative
consequences of our not following the law - that is legal punishment. However, ethical
behaviour encourages us to do certain things and explains the benefits, i.e., the positive
aspects of these ethical behaviour. For example, the law tells us not to steal, not to kill, but
ethics tells us to do good, speak the truth, help others in distress. Thus there is a positive
aspect inherent in ethical behaviour, whereas the law is more concerned about negative
behaviour. Yet another aspect of the law is that ethics precedes the action, the law follows it.
Ethics tells us what we should strive to develop in ourselves (high moral standards), on the
other hand, law tends to be more concerned with the consequences of the negative action -
what punishment would follow, who is guilty and how shall justice be done. Moreover, the
law is a universally accepted, published document, whereas ethics do be not yet have a
universally accepted, consistent and published concept - it is abstract, culture specific and left
to the individual for interpretation and action. Again, the law clearly specifies what action
would be taken against a person if he or she violates the provisions of the legal system. But,
in case of ethics, there is no specific outcome of an unethical action. What would be the
consequences of an unethical action is not very clear, not always the same and not universally
accepted. An unethical action may have many repercussions and widespread consequences.
Some Laws have nothing to do with morality because they do not involve serious matters.
These include parking laws, dress codes and other laws covering similar matters. Other laws
may even violate our moral standards so that they are actually contrary to morality. In USA
pre-Civil War slavery laws, for example, required the Whites to treat slaves like property, and
the laws of Nazi Germany required anti-Semitic behaviour. 4 The laws of Saudi Arabia
require that businesses discriminate against women and Jews in ways that most people would
say are clearly immoral. Thus, it is clear that ethics is not simply following the law. This does
not mean, of course, that ethics has nothing to do with following the law. Our moral
standards'are sometimes incorporated into the law, when enough of us feel that a moral
standard should be enforced by the pressures of a legal system. In contrast, laws are
sometimes criticized and eliminated when it becomes clear that they blatantly violate our
moral standards. Morality, morally-correct therefore, has shaped and influenced many of the
laws we have. Moreover, most ethicists agree that all citizens have a moral obligation to obey
the law so long as the law does not require clearly unjust behaviour. This means that, in most
cases, it is immoral to break the law. Tragically, the obligation to obey the law can create
terrible conflicts when the law requires something that the business person believes is
immoral. In such cases, a person will be faced with a conflict between the obligation to obey
the law and the obligation to obey his or her conscience. Perhaps the easiest way to think
about the relationship between business ethics and the law is in terms of a Venn diagram. If
we think of the law as reflecting society's minimum norms and standards of business conduct,
we can see that there is a great deal of overlap between what's legal and what's ethical.
Generally speaking, most people believe that law-abiding behaviour is also ethical behaviour.
But there are many standards of conduct agreed upon by society that are not codified in law.
For example, conflicts of interests may not be illegal, but they are generally considered to be
unethical in our society and are commonly covered in codes of ethics. So, the domain of
ethics includes the legal domain but extends beyond it to include the ethical standards and
issues that the law does not address.

Law Ethics Over lap areas.

Finally there are times when you might encounter a law that you believe is unethical. For
example, not so long ago racial discrimination was legal in the United States. Therefore, the
legal and ethical domains certainly overlap to a large degree, but not completely. It is
conceivable to think of something as being legal and unethical, or unethical but not covered
by law.

1. Can ethics be codified?

The word "ethics" is derived from the Greek word ethos (character), and from the Latin
word mores (customs). Together, they combine to define how individuals choose to interact
with one another. In philosophy, ethics defines what is good for the individual and for
society and establishes the nature of duties that people owe themselves and one another.

Codified Ethics-are basically the ethical principles, standards, and norms of society embodied 
in law. Thus because many people do not have their own conscience because they have killed i
t, the law has to step in ad make sure that the needs of the many and the powerful do not usurp 
and circumvent the needs of the individual as it relates to basic human rights which are enshri
ned in our constitution! Ethics codes are as old as antiquity. Religious traditions and civic
cultures have codes as their foundations. The Mosaic Decalogue (Ten Commandments) is the
keystone for Judaism, Islam and Christianity. Pericles made the Athenian code the
underpinning of ancient Greek politics and culture. In each case codes carry general
obligations and admonitions, but they are far more than that. They often capture a vision of
excellence, of what individuals and societies should be striving for and what they can
achieve. In this sense codes, which are often mistaken as part of law or general statements of
mere aspiration, are some of the most important statements of civic expectation. ses to enable
development professionals to more easily access country or institutional examples. When
applied to certain classes of people – public servants, doctors – codes are the ultimate terms
of reference. They are the framework upon which professions are built. Often codes are what
professionals use to make the claim that they are “professionals” and are often the founding
document for a profession, e.g. the Hippocratic Oath. While it is true that not all such oaths
are codes, it is often the case that codes are built into oaths or other related ceremonies related
to become a professional. They can be found in the ceremonies ordaining religious leaders in
many faiths, and in swearing the oath of office for many political leaders around the world.
Because the term code is often used in different contexts its meaning can be confused. For
our purposes code is not synonymous with law. Laws can have codes within them. But legal
systems are not codes (e.g. Hammurabi’s Code3 ) in the way the term “code” is used in this
document. Laws, often referred to as legal codes, are a series of detailed proscriptions dealing
with the “crime or offense” and the punishment. An example would be a city code forbidding
spitting on the sidewalk that provides a 30 day jail sentence for violations. Ethics codes or
codes of conduct seldom provide detailed, specific prohibitions. Rather, they are broader sets
of principles that are designed to inform specific laws or government actions. The use of
codes of conduct or ethics has been broadly recognized in international anticorruption
agreements. Among the first documents to recognize the value of codes was the Organization
of American States Inter American Convention Against Corruption. Codes of ethics are
written to guide behavior. Any final analysis of the impact of a code must include how well it
affects behavior. Ethics codes are necessary at all because good people should know how to
act ethically without any guidance. Contemporary social psychological research also strongly
suggests that codes can guide or induce behaviors in developing countries that are critical to a
functioning public service. First, codes of ethics increase the probability that people will
behave in certain ways. They do this partially by focusing on the character of their actions
and partly by focusing on sanctions for violations. In addition, reliance on codes can reduce
the sacrifice involved in an ethical act. An example might be the case of a civil servant whose
cousin has asked him to give him a government contract. Without a code it would be a moral
choice on his or her part. With a code the civil servant is reminded that it violates
expectations for civil servants, it could result in losing his or her job, and it moves the action
from not helping a family member to doing the right thing. Second, good ethics codes can
focus public servants on actions that result in doing the right things for the right reasons.
Ethical behavior should become a habit and effective codes allow both bureaucrats and
elected officials to test their actions against expected standards. Repeated over time this kind
of habit becomes inculcated in the individual and ingrained in the organization. An excellent
example is in contracting or procurement. Government processes are often cumbersome to
allow for fairness. If efficiency alone were the standard, contracting officials would be easily
tempted to ignore the rules to expedite the process. However, if it is clear that the overriding
principle is impartiality in carrying out your public duties it is very difficult to justify giving
the contract to your wife’s company on efficiency grounds. Third, codes of ethics do not take
away one’s own moral autonomy or absolve the public servant from the obligation to reason.
Codes of ethics provide at most a strong prima facie reason to act in a certain way. However,
these can be overridden by strong, reasoned objection. The expectation is that the norm is not
to violate the code and such violations can only be justified because of a higher ethical
principle. The public servant who closes a coal mine before the owners have exhausted due
process legal appeals can reasonably justify the action. Protecting the lives of the workers has
a higher value than the obligation to objectively carry out procedures. Fourth, codes of ethics
can function as a professional statement. That is it expresses the public service’s
commitments to a specific set of moral standards. This has both cognitive and emotive value.
Cognitively it gives a person joining a profession, civil service, a clear set of value to which
they are expected to subscribe. Not all individuals are comfortable working as civil servants
and codes can clarify expectations. Codes can help provide the pride of belonging to a group
or a profession. Pride is a critical emotion in motivating individuals to see themselves as
professional. Principles and values are imbedded in all ethics codes and codes of conduct,
either implicitly or explicitly. They are the elements that usually call the public servant to a
greater purpose.

The Role of Principles and Values: Effective ethics codes are not merely a text. Rather, they
exemplify the fundamental principles and values of a public service. These can include more
legalistic precepts, such as restrictions on conflicts of interest. Codes can also contain values.
But the critical elements in a code are the clear articulation of principles that are derived from
values. This distinction has its clearest conceptualization in the 18th century writings of
Jeremy Bentham.14 For him a principle was “a general law or rule that guides behaviour or
decisions,” whereas values articulate “an aspiration of an ideal moral state.”

Advantages of having codified professional ethics

Means of social control. It will keep up with the new perspectives brought to the profession
according to the social requirements and expectations. The dignity of the profession will be
required to be maintained in order to retain the confidence of the public in it. Ethical codes
prevent interference of government in such matters through its agencies. If a degree of
standardization is needed, it will keep Governmental interference outside. Ethical codes are
important in developing higher standards of conduct. The code also brings about a sense of
judgment towards the profession.The existence of the code will have great educative,
corrective and appreciable value for both the lawyers and the common men.

How many Dispute Resolutions are there in India?

The Indian Constitution though federal in character provides for unitary judicial system. The
Supreme Court is the apex court of the country. It was established on 28 January 1950 and
consists of 25 judges apart from the Chief Justice of India. 1 All proceedings in the Supreme
Court are conducted in English2 and are open to the public.3 The seat of the Supreme Court is
in Delhi.4 Except for the chamber, where the judge sits singly, benches of two or more judges
hear all matters. Normally five judges hear constitutional matters but in special cases, larger
benches are constituted.5 In addition to the judicial autonomy, the Supreme Court has
freedom from administrative dependence. In crisis arising out of diverse situations people
approach the apex court for relief. Below the Supreme Court, there exists high court for every
state / union territory. In the sphere of the states, high courts have wide powers for issuing
directions, writs or orders to all persons or authorities (including the governments), falling
under their jurisdiction, whether original or appellate, primarily for the enforcement of
fundamental rights. 8 The high court exercises administrative, judicial and disciplinary control
over the members of the judicial service of the state. 9 In addition, it is a court of record. 10
Each high court comprises of a Chief Justice and other judges whose number vary from state
to state.11 The Constitution of India has conferred on the high courts wide powers to
administer justice, administer the lower courts, take necessary action when there is a
miscarriage of justice, secure the rights and liberties to the people and among others ensure
that the administrative machinery functions according to law. The high court thus occupies a
high position of respect, dignity and authority in the modern Indian judicial system.

Just below high courts, in each state/ UT, there are subordinate courts. These represent the
first tier of the entire judicial structure. In fact, each state/ UT is divided into districts as units
of administration and each district is further divided into taluks or tehsils comprising certain
villages contiguously situated. These are administrative units. The court structure more or
less corresponds with these administrative units except in urban areas.

On the criminal side, vertically moving downwards, the highest court is either the Sessions
Court, presided over by a Sessions Judge or the court of District & Sessions Judge, who is
also the administrative head. He assigns cases to the Additional Sessions Judges. Sessions
Court has original, appellate and revision jurisdiction against orders passed by lower courts.

Below the Sessions Courts are the courts of the Chief Judicial Magistrate and Additional
Chief Judicial Magistrates. Each of these courts has one or more police stations assigned to it.
The designated court decides criminal cases from those police stations.

Below these are the courts of Judicial Magistrates. Judicial Magistrates in India are similar to
Justices of the Peace in the United States of America. They deal with such things as breach of
public peace, nuisance, dispute of immovable property likely to cause breach of peace.

In addition to the regular criminal courts, there are special courts to deal with cases relating to
narcotics, corruption, terrorist, consumer,12 labour13 and environment,14 etc. Apart from the
above, there are special courts established by many central statutes, like, the Anti- Hijacking
Act, 1982; the Commission of Sati (Prevention) Act, 1987; the Immoral Traffic (Prevention)
Act, 1956; the Juvenile Justice Act, 1986; the Narcotic Drugs and Psychotropic Substances
(Amendment) Act, 1988; the Prevention and Corruption Act, 1988; the Terrorist Affected
Areas (Special Courts) Act, 1984; etc to deal with disputes on the subject matter covered by
these Acts.

The special courts deals with a specific subject matter of litigation. They, follow almost the
same procedure, which is followed by the regular courts with some minor differences
necessary for the quicker disposal of the cases.15

Special courts are set up not for any special policy commitment or the expertise requirement
but for the purpose of speedy disposal. The judges of these courts are often drawn from the
judicial services. Appeals against their decisions lie in high court and in some cases even to
the Supreme Court.

On the civil side, vertically moving downwards in the hierarchy, we have at the peak, the
principle civil court, called the District Court presided over by the district judge. Besides,
there are courts of additional district judges to deal with the cases. Both the district judge and
the additional district judges are vested with the same powers and appellate jurisdiction
against the order or decree of courts subordinate to them.

Below the District Courts are the courts of Civil Judges (Senior Division) and Civil Judges
(Junior Division). The "Senior" and "Junior" labels do not have anything to do with the
powers of the judges but reflect the nature of the cases. These courts are vested with only
original jurisdiction. Appeals against the judgment of the courts of civil judges, whether of
senior or junior division lie before the district judge, who either decides the appeal himself or
assign it to the court of additional district and sessions judge or additional district judge,
whichever exists under him.

In some states / UT, a court of munsif / district munsif-cum-magistrate / subordinate judge,

class- III and the sub-judge, class-II are established at a taluk or tehsil level, instead of the
courts of civil judges (junior division). Immediately above the district munsif’s court in the
hierarchy is the court of subordinate civil judge, class-I instead of the courts of civil judge
(senior division).16 Steps, are being taken to bring uniformity in designation of judicial
officers both on civil and criminal side.17

The organization and growth of a regular hierarchy of courts of justice with the superior
courts and inferior courts owes its origin to the advent of the British rule in India. Every court
in this chain, subject to the usual pecuniary and territorial jurisdiction, administers the law of
the country whether made by Parliament or by the State Legislature. As a general rule, there
is a separation of civil judiciary and criminal judiciary. But if workload is less, the presiding
officer presides over both criminal and civil courts. For example, courts of District &
Sessions Judge (DSJ) hear both civil and criminal matters.

ALTERNATIVE DISPUTE RESOLUTION: HOW OUT OF COURT SYSTEMS ARE

USED AS DISPUTE RESOLUTION MECHANISMS

1. Overview of the ADR

Alternative dispute resolution (which for the sake of brevity we shall refer to as ADR) as the
name suggests, is an alternative to the traditional judicial process. ADR gives people an
involvement in the process of resolving their dispute that is not possible in a public, formal
and adversarial justice system bristled with abstruse procedures and recondite language of the
law. It offers a wide range of choices in method, procedure, cost, representation and location.
It is often quicker than judicial proceedings and helps to ease burdens on the courts.
What kinds of ADR are available?

A wide range of dispute prevention and resolution procedures exist in India that allow the
participants to develop a fair, cost-effective, and private forum to resolve disputes. All ADR
mechanisms available in the country can be broadly discussed at two levels:

1) Those which are applicable throughout the country &

2) Those which are available at the state / UT level to deal with specific
problems arising under their jurisdiction.

The following models for ADR as prototypes for use in disputes redressal exist on national
level:

1. Tribunals, commissions, boards, etc.

2. Lok Adalats

3. Nyaya Panchayats

4. Arbitration

5. Conciliation

6. Ombudsman

7. Fast Track Courts (new concept)

1. Tribunal system in India:

Two decades after commencement of the Constitution of India, it was realized that the
existing court system alone was insufficient to cater the needs of people and to deal with all
types of disputes. The Constitution was accordingly amended and Article 323-B was added to
authorize the legislature to establish tribunal, commissions, district boards, etc., for the
adjudication or trial of any disputes, complaints or offences with respect to any matters.

Name of the Statute Name of the Tribunal

Administrative Tribunals Act, 1985. i) Central Administrative Tribunal.

ii) State Administrative Tribunal

iii) Joint Administrative Tribunal.

Banking Regulation Act, 1949. Banking Regulations Tribunal.

The tribunals, as alternative fora of dispute adjudication, are quicker, economical, less formal
and possess expertise in a subject compared to the courts. They discharge the quasi-judicial
functions.3 The procedure in these tribunals is not typical adversarial, but lawyers are
permitted to represent the parties and appeal may lie against the decision of the tribunal either
to the high court or the Supreme Court, as provided by the statutes. Tribunal disposals are of
vital importance as it involves revenue to the tune of million of rupees.

1. Lok Adalats

Lok Adalat means people’s court, in contrast to the regular law courts established by
the government. In 1980, a Committee at the national level was constituted to
oversee and supervise legal aid programmes throughout the country under the
chairmanship of a judge of the Supreme Court of India. This Committee came to be
known as CILAS (Committee for Implementing Legal Aid Schemes) and it started
monitoring legal aid activities throughout the country. This gave birth to Lok
Adalats. The introduction of Lok Adalats added a new chapter to the justice
dispensation system in India and succeeded in providing a supplementary forum to
the litigants for conciliatory settlement of their disputes. In 1987 Legal Services
Authorities Act was enacted to give a statutory status to the institution of Lok
Adalat. Chapter VI of the Act contains provisions providing for organization of Lok
Adalats; the power and functions of the Lok Adalat and the effect of the award made
by the Lok Adalat. Under section 19 of this Act, anybody can get his dispute referred
to Lok Adalat for its settlement through mediation and conciliation. Once a
compromise or settlement is arrived at before the Lok Adalat, then the award based
thereon, acquires the force of a decree of a civil court. It attains finality and binds
the parties to the dispute. The Act forbids filing of appeal to any court against such
an award except on the ground of fraud. Thus, the dispute gets resolved once for all
ensuring mental peace to the parties. The parties are not required to pay any court
fee or engage a lawyer.5 Section 20 of the Act empowers the court to refer any case
to Lok Adalat when it feels that there are chances of settlement; or the matter is an
appropriate one to be taken cognizance of by the Lok Adalat. The Lok Adalat is
presided over by a sitting or retired judicial officer as the chairman, with two other
members, usually a lawyer and a social worker. Experience shows it is easier to
settle money claims in Lok Adalat.6 In recent times the concept of Lok Adalat has
gained popularity. Prison Lok Adalat, Provident Fund Lok Adalat, Labour Law
Adalat, etc., are being organized almost every day in one part or other of the
country, to settle disputes.7 So far, Lok Adalats have settled 15 million cases.8
Permanent Lok Adalat under the new scheme would have jurisdiction over cases
relating to public utility services, namely (I) transport of passengers or goods by air,
road or water, (ii) postal, telegraph and telephone services, (iii) power and water
supply, (iv) conservancy or sanitation, (v) hospitals and (vi) insurance.9

2. Nyay Panchayats
In India Panchayats are in existence since ancient times. In villages, the administration was
carried out by a Panchayat headed by village headman which among others, were deciding
petty civil, criminal and revenue cases - Nyay Panchayats, as an indigenous system of
participatory justice at the village level, exist to resolve the disputes by a process of
conciliation and mediation at the village level. Their decisions are generally honoured and
accepted by the village community.17 The earliest statutory recognition to these foras came in
the form of the Village Courts Act, 1888 in Madras. As of today, Nyay Panchayats continue
to be popular in India and the system is adopted in almost every state in the country by
suitable legislation or schemes to ensure that opportunities for securing justice are not denied
to any citizen on the grounds of economic or other disabilities. 18 Usually Nyay Panchayats
take cognizance of suits pertaining to:

1. money due on contract (other than contracts relating to immovable

property);

2. recovery of movable property or the value of such property;

3. compensation for wrongfully taking or injuring movable property;

compensation for damage caused by cattle trespass.

4. Arbitration
Settlement of disputes by arbitration has been practiced in India from the distant past and the
legal literature tells us of the ancient system of arbitration for resolving disputes concerning
the family, or the trade or a social group. The Constitution of India also puts it as a Directive
Principle of State Policy that the State should encourage settlement of international disputes
by arbitration.

5. Conciliation
There is not much difference between mediation and conciliation. Mediation
is one of the methods by which conciliation is achieved. Conciliation is
essentially a consensual process.

Conciliation and Arbitration

Unlike an arbitrator, a conciliator does not give a decision but his main
function is to induce the parties themselves to come to settlement. An
arbitrator is expected to give a hearing to the parties,

but a conciliator does not engage in any formal hearing, though he may
informally consult the parties separately or together. The arbitrator is vested
 with the power of final decision and in that sense it is his contribution that
becomes binding. In contrast, a conciliator has to induce the parties to come
to a settlement by agreement. An arbitrator generally decides after a contest
between the parties while in the case of conciliation the final result depends
on the will of the parties. Therefore, at the end of the proceedings, emotional
harmony between the parties may not suffer much, in the case of
conciliation.

6. Ombudsman

The institution of ombudsman is slowly gaining momentum in India.

Keeping in view the time constraints, the economy and the resources
involved in regular courts some of the institutions have preferred to have an
ombudsman for settlement of disputes arising against their institution. In this
process, two developments are visible:
(i) Setting up of grievance redressal machinery, a step in this direction.

(ii) Setting up of the offices of Lok Ayukta64 at the state level.

7. Fast Track Courts

A novel experiment aimed at clearing the massive backlog in court cases has
just begun in the country with the setting up of ‘fast track’ courts in various
states. The scheme envisages the appointment of ad-hoc judges from
amongst the retired sessions / additional sessions judges, judges promoted on
ad-hoc basis and posted in these courts or from among members of the Bar.
The states, which are lagging behind their targets, are being persuaded by the
Centre to speed up the work.

Difference between Civil Law and Common Law

Common Law System

Countries following a common law system are typically those that were former British
colonies or protectorates, including the United States.
Features of a common law system include:
 There is not always a written constitution or codified laws;
 Judicial decisions are binding – decisions of the highest court can generally only be
overturned by that same court or through legislation;
 Extensive freedom of contract - few provisions are implied into the contract by law
(although provisions seeking to protect private consumers may be implied);
 Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may
therefore wish to enshrine protections of its citizens in specific legislation related to the
infrastructure program being contemplated. For example, it may wish to prohibit the service
provider from cutting off the water or electricity supply of bad payers or may require that
documents related to the transaction be disclosed under a freedom of information act. There
may also be legal requirements to imply into a contract in equal bargaining provisions where
one party is in a much stronger bargaining position than the other. There are few provisions
implied into a contract under the common law system – it is therefore important to set out
ALL the terms governing the relationship between the parties to a contract in the contract
itself. This will often result in a contract being longer than one in a civil law country.
Civil Law System
Countries following a civil law system are typically those that were former French, Dutch,
German, Spanish or Portuguese colonies or protectorates, including much of Central and
South America. Most of the Central and Eastern European and East Asian countries also
follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law.
Features of a civil law system include:
 There is generally a written constitution based on specific codes (e.g., civil code,
codes covering corporate law, administrative law, tax law and constitutional law)
enshrining basic rights and duties; administrative law is however usually less codified
and administrative court judges tend to behave more like common law judges;
 Only legislative enactments are considered binding for all. There is little scope for
judge-made law in civil, criminal and commercial courts, although in practice judges
tend to follow previous judicial decisions; constitutional and administrative courts can
nullify laws and regulations and their decisions in such cases are binding for all.
 In some civil law systems, e.g., Germany, writings of legal scholars have significant
influence on the courts;
 Courts specific to the underlying codes – there are therefore usually separate
constitutional court, administrative court and civil court systems that opine on
consistency of legislation and administrative acts with and interpret that specific code;
 Less freedom of contract - many provisions are implied into a contract by law and
parties cannot contract out of certain provisions.
A civil law system is generally more prescriptive than a common law system. However, a
government will still need to consider whether specific legislation is required to either limit
the scope of a certain restriction to allow a successful infrastructure project, or may require
specific legislation for a sector.
There are a number of provisions implied into a contract under the civil law system – less
importance is generally placed on setting out ALL the terms governing the relationship
between the parties to a contract in the contract itself as inadequacies or ambiguities can be
remedied or resolved by operation of law. This will often result in a contract being shorter
than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure
projects are referred to by well-defined legal concepts in civil law
jurisdictions. Concessions and Affermage have a definite technical meaning and structure to
them that may not be understood or applied in a common law country. Care should be taken,
therefore, in applying these terms loosely. This is further considered under Agreements.
Summary of Differences between Civil law and Common law legal systems
Set out below are a few key differences between common law and civil law jurisdictions.

Feature Common Law Civil Law

Written Always
Not always
constitution
Not binding on 3rd parties; however,
administrative and constitutional court
Judicial decisions Binding decisions on laws and regulations
binding on all

Writings of legal Significant influence in some civil law

Little influence jurisdictions
scholars
Extensive – only a
few provisionsMore limited – a number of provisions
Freedom of
implied by law intoimplied by law into contractual
contract relationship
contractual
relationship
In most cases
contractual Most PPP arrangements (e.g.
Court systemrelationship isconcessions) are seen as relating to a
applicable subject to private lawpublic service and subject to public
to PPP projects and courts thatadministrative law administered by
deal with theseadministrative courts
issues
Civil Law Common Law

Legal System Legal system originating in Europe whose
most prevalent feature is that its core
principles are codified into a referable
system which serves as the primary source
of law.
Legal system characterized by case
law, which is law developed by judges
through decisions of courts and similar
tribunals.

Role of judges Chief investigator; makes rulings, usually
non-binding to 3rd parties. In a civil law
system, the judge’s role is to establish the
facts of the case and to apply the provisions
of the applicable code. Though the judge
often brings the formal charge.
Makes rulings; sets precedent; referee
between lawyers.Judges decide
matters of law and, where a jury is
absent, they also find facts. Most
judges rarely inquire extensively into
matters before them, instead relying
on arguments presented by the part

Countries Spain, China, Japan, Germany, most United States, England, Australia,
African nations, all South American nations Canada, India
(except Guyana), most of Europe

Constitution Always Not always

Feature Common Law Civil Law
Precedent Only used to determine administrative of Used to rule on future or present cases
constitutional court matters
Role of jury In cases of civil law, the opinion of the jury
may not have to be unanimous. Laws vary
by state and country. Juries are present
almost exclusively in criminal cases;
virtually never involved in civil actions.
Judges ensure law prevails over passion.
History The civil law tradition developed in
continental Europe at the same time and
was applied in the colonies of European
imperial powers such as Spain and Portugal.
Sources of 1. Constitution 2. Legislation – statutes and
Law subsidiary legislation 3. Custom 4.
International Law 5. [Nota bene: It may be
argued that judicial precedents and
conventions also function within
Continental systems, but they are not
generally recogn
Type of Inquisitorial. Judges, not lawyers, ask
argument and questions and demand evidence. Lawyers
role of lawyers present arguments based on the evidence
the court finds.
Evidence Evidence demands are within the sovereign
Taking inquisitorial function of the court — not
within the lawyers’ role. As such,
“discovery” by foreign attorneys is dimly
viewed, and can even lead to criminal
sanctions where the court’s role is usurp
Evolution Both systems have similar sources of law-
both have statutes and both have case law,
they approach regulation and resolve issues
in different ways, from different
perspectives
Juries are comprised only of
laypersons — never judges. In the
U.S., juries are employed in both civil
and criminal cases. Their function is to
weigh evidence presented to them, and
to find the facts and apply the law.
Common law systems have evolved
primarily in England and its former
colonies, including all but one US
jurisdiction and all but one Canadian
jurisdiction. For the most part, the
English-speaking world operates
under common law.
1. Constitution (not in the UK) 2.
Legislation – Statutes and subsidiary
legislation 3. Judicial precedent –
common law and equity 4. Custom 5.
Convention 6. International Law
Adversarial. Lawyers ask questions of
witnesses, demand production of
evidence, and present cases based on
the evidence they have gathered.
Widely understood to be a necessary
part of the litigants’ effective pursuit
or defense of a claim. Litigants are
given wide latitude in US
jurisdictions, but more limited outside
the US. In any event, the litigants and
their lawyers undertake to a
Both systems have similar sources of
law- both have statutes and both have
case law, they approach regulation and
resolve issues in different ways, from
different perspectives
The common law and civil law legal systems are the two most prevalent legal
systems in the world. The two systems grew in different historical contexts. The
civil law developed from the Roman Law through the Justinian's codifications to the
codifications in Western Europe particularly France and Germany.1 The common
law, on the other hand, emerged from the decisions of the King’s Courts in the
England Feudal System.2 Currently, the major differences between the two systems
are the sources of laws, the structure of the courts and the role justice actors,
particularly, judges and lawyers play in the system. In the common law legal system,
the main source of the law are judge made laws. Even if there are statutes that
complement them, the primary sources of the law are case laws.3 The law is to be
framed when a dispute arises and the rules of the law are usually generalized out of
judicial decisions.4 This is what we call precedent system. The precedent system is
binding and the rule of stare decisis obliges the lower courts to abide by the
decisions given by the upper courts. 5 In the common law, the role of legal scholars
in the development of the law is also relatively minimal as judges are the primary
factors behind the making and development of the law.6 In addition, equity is
usually considered as a source of law. 7 In Britain and most states of the united
states, case laws are the major sources of the law. In the civil law legal system, on
the other hand, parliamentary legislations are the main sources of the law. 8 There
are pre-enacted general legal rules incorporated in legislation which shall apply to
all disputes. The major part of legal rules are also incorporated in comprehensive
codes. 9 In addition, customs and the opinion of scholars also have a greater role in
the application of laws. Unlike the common law system, however, judges, in
principle, have the role of only interpreting the law. Ethiopia, for example,
Predominantly follows the civil law legal system. There are the Civil Code,
Commercial Code, Maritime Code, Criminal Code, Civil Procedure Code, Criminal
Procedure Code, Labour Code and many other legislations on different topics. But,
Ethiopia also adopt some sort of a precedent system. The legal interpretation
rendered by the Federal Supreme Court cassation division with five judges binds all
courts in the country.10 Despite the above differences, it should be noted, however,
that there are statutes in common law systems and the judges in civil law countries
may make laws in the form of interpretation and gab filling.11 With the objective of
insuring certainty and stability, civil law judges are also adopting case laws as soft
laws. 12 The second difference is on the structure of courts. Civil law courts make a
distinction between public & private laws and have specified courts for specific
matters.13The specialization of the courts help to benefit from experts and
accommodate local customs. 14 While private law matters are dealt by ordinary
courts, there are specific courts for public law disputes like administrative courts,
constitutional courts, criminal courts. In Ethiopia, there are separate benches for
criminal, labor, commercial and family cases. In addition, there are independent
administrative courts and labor dispute board. In the common law, on the other
hand, courts have usually a generalized jurisdiction. In the united states, for
example, they are unified courts in which there is one appellate court and a supreme
court. 15 The third significant difference of the two systems is the roles justice
actors, particularly, lawyers and judges play in the judicial proceedings. Whereas the
common law is known for its adversarial system, the civil law is known for
inquisitorial system. In the common law, lawyers use whatever permissible means to
establish their claim and/or disprove the facts of the adversary. The judges are
relatively passive. In addition, in the American system, there is a party controlled
fact finding procedure called discovery. During discovery, parties are required to
disclose facts and evidences including those needed by the adversary. 16 Further,
there is a jury system in which lay men are chosen to establish facts in a dispute. In
common law countries in general and the United States in particular, trial by jury has
become a constitutional right.17 In the civil law, judicial control of dispute
resolution is the principle.18 The judges have considerable role in establishing the
fact by inquiring parties and/or their lawyers as well as witnesses. 19 In Ethiopia, for
example, the court has every right to examine parties and their witnesses any time it
wills.20 But, there are increasing trends in which the common law judges and civil
law advocates are becoming more active in court proceedings.21

How Common Law can be established?

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. Oliver
Wendell Holmes, Jr. cautioned that "the proper derivation of general principles in
both common and constitutional law ... arise gradually, in the emergence of a
consensus from a multitude of particularized prior decisions."[53] Justice Cardozo
noted the "common law does not work from pre-established truths of universal and
inflexible validity to conclusions derived from them deductively", but "[i]ts method
is inductive, and it draws its generalizations from particulars".[54] The common law
is more malleable than statutory law. First, common law courts are not absolutely
bound by precedent, but can (when extraordinarily good reason is shown) reinterpret
and revise the law, without legislative intervention, to adapt to new trends in
political, legal and social philosophy. Second, the common law evolves through a
series of gradual steps, that gradually works out all the details, so that over a decade
or more, the law can change substantially but without a sharp break, thereby
reducing disruptive effects.[55]

History of Indian Legal Statement- Law in India has primarily evolved from customs
and religious prescription to the current constitutional and legal system we have
today, thereby traversing through secular legal systems and the common law. India
has a recorded legal history starting from the Vedic ages. It is believed that ancient
India had some sort of legal system in place even during the Bronze Age and the
Indus Valley civilization. Law as a matter of religious prescriptions and
philosophical discourse has an illustrious history in India. Emanating from the
Vedas, the Upanishads and other religious texts, it was a fertile field enriched by
practitioners from different Hindu philosophical schools and later by the Jains and
Buddhists. Secular law in India varied widely from region to region and from ruler
to ruler. Court systems for civil and criminal matters were essential features of many
ruling dynasties of ancient India. Excellent secular court systems existed under the
Mauryas (321-185 BCE) and the Mughals (16 – 19 centuries) which preceded the
current scheme of common law in India.

Hindu Law- Hindu law can primarily be divided into three categories: the 'Classical
Hindu Law', the 'AngloHindu Law', and the 'Modern Hindu Law'. These three
divisions also have an historic context. 1. Hindu Law this system 132 The Classical
Hindu Law includes the diverse legal practices connected with the Vedic traditionsin
some ways and existing from the Vedic times until 1772 when the British adopted
rules for administration of justice in Bengal. The Anglo-Hindu Law was evolved
from the classical Hindu law during the British rule in India from 1772 to 1947. The
British adopted the modern law or the English legal system and replaced the existing
Indian laws except for family or personal laws in matters such as marriage,
inheritance and succession of property. Family law or the personal law applicable to
Hindus is the Modern Hindu Law.

2. Classical Hindu Law- When lawmakers create laws, they are based on a certain
scheme of values of morality, politics, history, society and so on. In comparison
with the modern law, the Classical Hindu law was a peculiar legal system as it
followed a unique arrangement of law and polity with a unique scheme of values.
Although the Classical Hindu law was based on religion with the scholars of the
Vedas playing a central role, in reality, it was decentralized and diverse in practice
and differed between communities, based on locations, vocational groups (like
merchant groups, military groups, and temple groups) and castes. The features of the
Classical Hindu law are discussed in this section. Dharma' in Sanskrit means
righteousness, duty and law. Dharma is wider in meaning than what we understand
as law today. Dharma consists of both legal duties and religious duties. There are
three sources of Dharma or Hindu law. The first source is the Veda or Vedas. The
four primary Vedas are the Rigveda, Yajurveda, Samaveda, and Atharvaveda. They
are collections of oral texts of hymns, praises, and ritual instructions. Veda literally
means revelation. The third source of dharma is called the 'âchâra', which means
customary law. Âch ras are the norms of a particular community or group.
Dharmashastra' is an example of Smriti. They are Sanskrit written texts on religious
and legal duties. Commentaries and Digests: Commentaries were written by
commentators to interpret and provide meaning to the Dharmasutra texts and Smriti,
and each commentary devoted itself to one particular text. For example, there are
commentaries exclusively on 'Manusmriti' and on 'YajnavalkyaSmriti' and so on.

Anglo Hindu law:- Anglo-Hindu Law can be divided into two phases. The first
phase is the period between 1772 and 1864. This phase starts in 1772 when the
British adopted rules for administration of justice in Bengal. The second phase is the
period between 1864 and 1947. The British adopted (especially during 1864 and
1947) the modern law or the English legal system and replaced the existing Indian
laws, except for laws related to family or personal matters like marriage, inheritance
and succession of property. Family law or the personal law applicable to Hindus is
the Modern Hindu Law. The Indian Constitution of 1950 has adopted this
arrangement wherein in family or personal matters, customary laws of the relevant
religious groups or traditional communities apply. Also, the last section on the
Family Justice System covers the Islamic law in India in civil law matters of
marriage, inheritance and other personal law issues.

Differentiate between moral and ethics?

Ethics and morals relate to “right” and “wrong” conduct. While they are sometimes

used interchangeably, they are different: ethics refer to rules provided by an external
source, e.g., codes of conduct in workplaces or principles in religions. Morals refer to an
individual’s own principles regarding right and wrong.

Comparison chart

Ethics versus Morals comparison chart

Ethics Morals

What are The rules of conduct recognized in respect to a Principles or habits with respect to
they? particular class of human actions or a particular right or wrong conduct. While
group or culture. morals also prescribe dos and don'ts,
morality is ultimately a personal
compass of right and wrong.
Ethics versus Morals comparison chart

Ethics Morals

Where do Social system - External Individual - Internal

they come
from?

Why we do Because society says it is the right thing to do. Because we believe in something
it? being right or wrong.

Flexibility Ethics are dependent on others for definition. Usually consistent, although can
They tend to be consistent within a certain change if an individual’s beliefs
context, but can vary between contexts. change.

The "Gray" A person strictly following Ethical Principles
may not have any Morals at all. Likewise, one
could violate Ethical Principles within a given
system of rules in order to maintain Moral
integrity.
A Moral Person although perhaps
bound by a higher covenant, may
choose to follow a code of ethics as
it would apply to a system. "Make it
fit"

Origin Greek word "ethos" meaning"character" Latin word "mos" meaning

"custom"

Acceptabilit Ethics are governed by professional and legal Morality transcends cultural norms
y guidelines within a particular time and place
Source of Principles
Ethics are external standards that are provided by institutions, groups, or culture to
which an individual belongs. For example, lawyers, policemen, and doctors all have to
follow an ethical code laid down by their profession, regardless of their own feelings or
preferences. Ethics can also be considered a social system or a framework for acceptable
behavior.
Morals are also influenced by culture or society, but they are personal principles created
and upheld by individuals themselves.

Consistency and Flexibility

Ethics are very consistent within a certain context, but can vary greatly between
contexts. For example, the ethics of the medical profession in the 21st century are
generally consistent and do not change from hospital to hospital, but they are different
from the ethics of the 21st century legal profession.
An individual’s moral code is usually unchanging and consistent across all contexts, but
it is also possible for certain events to radically change an individual's personal beliefs
and values.
Conflicts Between Ethics and Morals
One professional example of ethics conflicting with morals is the work of a defense
attorney. A lawyer’s morals may tell her that murder is reprehensible and that murderers
should be punished, but her ethics as a professional lawyer, require her to defend her
client to the best of her abilities, even if she knows that the client is guilty.
Another example can be found in the medical field. In most parts of the world, a doctor
may not euthanize a patient, even at the patient's request, as per ethical standards for
health professionals. However, the same doctor may personally believe in a patient's
right to die, as per the doctor's own morality.

Origins
Much of the confusion between these two words can be traced back to their origins. For
example, the word "ethic" comes from Old French (etique), Late Latin (ethica), and
Greek (ethos) and referred to customs or moral philosophies. "Morals" comes from Late
Latin's moralis, which referred to appropriate behavior and manners in society. So, the
two have very similar, if not synonymous, meanings originally.
Morality and ethics of the individual have been philosophically studied for well over a
thousand years. The idea of ethics being principles that are set and applied to a group
(not necessarily focused on the individual) is relatively new, though, primarily dating
back to the 1600s. The distinction between ethics and morals is particularly important for
philosophical ethicists.