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L 17 Common Law
L 17 Common Law
Law
• “Our lady the Common Law is a very wise old
lady though she still has something to learn
in telling what she knows”.
– 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?
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 slides
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
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”.
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.”
• 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”.
• 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 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.”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