EBB R Vl cnareen The Comparative Approach to Case Law 5 Comparative Importa Precedent and its Meaning of Precedent. Deductive and Inductive Approaches in the Judicial Function, (©) Juciges make law. ‘Absolute and Conattional Precedents. Disregard of conditionally auihortative precedent, The Ratio Decksendl of a case. Per Incuriam. ‘Obiter observations. Value of Precedents In alfferent countries. Doctrine of Precedent in India. @ Ancient incta. (©) Government of inalo Act 1985. (© Attainment of independence. (@® High Courts. (© Power of Supreme Court under Aft. 141 of the Constitution. mn ureogh Se ante 8 Seni cen, cent, a an starting dierent tm Fieeeen pe peaks hegre in Ragland and on the Contest A conental law Teper Roos only summarises the ithout reference to the arguments of ee ee Continental Judicial Decisions as source of law. 1. Anglo-American Legal System—The i s (108 )to (Comparative Law event, they are not cited as precedents but are only mentioned as or iastrating the line of reasoning adopted by the court “ 5. Applicability of Precedents,—Gutteridge further observes, reasons forthe variations in form ley for the most art, 10 differen legal technique. To begin with, continental lawyers do not search fo precedent applicable to the particular facts of the dispute with which the are concerned but consider how far the facts are covered by some genoy] principle or principles. They are not hampered in arriving at they ‘con by the doctrine of stare decisis, and the elaborate discussion o precedents whichis characters jis judgments and Tegal is, consequently, unnecessary. Sec: judgments must be red writing and, in some systems, ‘must ‘also ‘comply with certain to requirements which have the effect of preventing lengthy discussion of thy point or points of law involved. The result is that French judgments; highly compressed and not easily understood by anybody who is not with the Code, with statute law and with the method of their inte some accredited jurisconsults—often a distinguished practitioner, or learned writer. Again, this is only of “persuasiw’ it is frequently of great value and influence, and. practice, to the prestige of the decision.” (Dr. Allen ‘An English lawyer approaching the study of French Jaw will find codified law is regarded there as supreme, but the Code itedf supplemented by commentaries which are an indispensable supplement the Code itself. These commentaries are extra-judicial and extra-legislaive in nature and yet wield very great influence on French courts. The opinians of eminent jurists are only of persuasive value in England, but they great weight on judicial doctrine in France. Dr, Allen further observes that "French theory is far from any ‘binding’ authority even to « consistent series of decisions, and tt alm none at all to the isolated decision, even of the highest tribunal. Temarkable how the two systems (French and English), while both similar methods in order to keep the law abreast of the times, have di in the ostensible operation of the method. Where the English introduces a new law under the guise of old precedent, the French. Goes so under the guise of a new interpretation of the lex seri ‘admirable apophthegm of R. Saleilles nearly expresses the principle : ‘Beyond the Code through the Code!’ But it is the Code Theoretically remains supreme. Such authority as precedent pos 10 ‘of the single decision from the highest ‘so strong that it has settled into ‘judicial ares the same opinion when he observes that “it is do not become a source of law on cases has been formed creating & wyer would describe it as usus fori. In ‘ean never be treated as a source of views. The Supreme Courts of Appeal, viz., the Cour de Cassation in France 1e Reichsgericht in Germany, however, as Courts of Revision exercise for mitigating hardships. lawyer will, on a study of Continental case-law, notice ter the,no CComparave Law am _The Comparative Approach to Case Law : Precedent and ts Comparative Importance therefore, utilised the agency of extensive interpretation for the p, softening the rigour of law or modifying and enlarging the scope of Peg. Jaw in order to prevent injustice, cas In England the Common Law, which was found deficient in. respects, was supplemented by equity, which by its exclusive, et auxiliary jurisdictions provided relief for unredressed wrongs iat ways. It granted relief in cases where the Common Law Courts vad relief, or where the relief was not adequate; and also aided a Common Law action by making certain procedural orders for hig a ‘The Continental system of law has no corresponding aystem opt It does not recognise any such difference in law and equity as ip English law. To a certain extent, however, the Continental judges aay object of equity by their interpretative function performed while qt® Justice; and in this manner they ied to supplement, modify a in certain respects, to supersede the provisions of enacted or Coates 7. Place of Equity.—The Continental Code do contain equity (Equity and Bi give a clear conce} eit), but they are neither defined the ‘equity. To a Continental lawyer, the mn ‘more than ‘vague jurisprudence’ or ‘well matt cases to e general principle appropriate in the matter in ge, in this cae, ip guided by judicial precedents, Tt is a Betracteristic of English common lav. acl ere has been a strong opinion in favour of the deductive process. smeositts Tike Hobbes, Benthain and Austin have condemned the system of i Tn induetive process there seems to be a good scope for . a6 an unlimited nonber of circumstances press pon the mind of In practice, however, this syatem has been found to be the most ficient system of adzinistation of justice Carleton, Kemp Allen in his characteistically Tucid language thus explains the difference between the two theories : "Different though these two theories seem to be in conception, in application they are not..as widely divergent as might be supposed. In one common case they are nc ought not to be, really different in conception tt all, When the FinglishJuige has to apply a efatute-—and this nowadays ie ‘would seem, in much the same position as to apply a code. But here tov—eo deeply rooted is our principle of judicial analogy—our judges are. governed ‘by precedents of interpretation. An English statute is mot very eld before it teases to be a dry generalization and is seen through the medium of a number of concrete examples, Te result is often startlingly diferent from what the enactment would seem to have intended.” 10. Anglo-American Practice—It is a fundamental principle of slo-American legal system to attach great weight to the doctrine of cial precedent inasmuch as it regards judicial decisions as a separate sour is, however, only the ratio decidendi (reason for decision) force of law; oblter dicta (statements of law which go beyond na fides, ‘good morals’ and ‘public order’ not connoting the same idéas as are found in English concept of Ine played a much greater part in Continental law. "In France, Geng gave powerful expression to the need for \d certain gaps in the German Civil Code of a great part of his task—h ‘the Continental judge wh serves as an authority for the legal principle embodied in its decision ‘According to Salmond, "a precedent is a judicial decision which contains i® itself a principle. ‘The underlying principle which thus forms ifComparative Law ents of the case) “do not even bind the lips that utter attrib eat body of the Common Law of England is almost gg with ualtle te decided cases. The early centralisation of justice 2 rome neyeained royal judges having close affinity with the le influence in giving weight to the authority of ave always looked to their judiciary as the foun m their province to ensure that that 11. Continental Practices—In Continental Euro doctrine of precedent has ‘not been formally established, The’ lecision per se cannot claim any legal authority, hough it may in arriving at his conclusions. Decisions of Judges have, bbeen gaining some importance in France, Italy and Germany and the to attach greater weight to previous decisions of their own courts thea ww of terion eae testers ar nae a nee ee France, but, Allen observes, "there is no absolute uniformity; and ties there is a marked tendency thereto in practice, French theory ina, strongly on the independence of all courts, of whatever degree, in date cases according to principle and not necessarily to example. After anunit of experiments, the final Court of Appeal, the Court de Cassation, has lr given a jurisdiction of last resort in certain circumstances, but even the fal judgments of this court, though great theory binding on any courts for future cases.” 12. Theories of Precedent—There are two theories of prossiet ‘The first is that the judges only declare the existing law; and the sexi that they make the law. (a) Hale’s Declaratory Theory—According to Hale's decarin theory of precedents, decisions of courts of justice though by viriue ol Jaws of the realm they do bind as a law between the parties thereto, yt. do not make a law properly so-called; for that only the King and Parla! ‘can do; yet they have a great weight and authority in expounding, ded ‘and publishing what the law of this kingdom is. This theory a emphasised that the judges do not make the law, but they frequent st existing law to circumstances as to which it has not previously We authoritatively laid down that such law is applicable According 1 08 judicial decisions are not sources of law but furnish the best proofs of the law is. Mathew Hale observed that "the decisions of courts of justice i make law properly so-called, for that only the King ‘The Comparative Approach to Case Law : Precedent and ts Comparative Importance 113 they have @ great weight and authority in expounding, declaring and W of this Kingdom is. And though such decisions are ey are a greater evidence thereof, than the opinion of Key private Pers ‘Blackstone eT anced in art Plahar SET) KB. 408 Seas ee eae neory altogether by srejuratory theory now ‘Gade law for himse successors. According to him, precedents make {aw as well as declare it, There is a distinet law creating power vested in judges who openly and lawfully exercise it. Original precedents are the cuteome of the intentional exercise by the courts of their privilege of developing the law at the same time that they administer it. ditional | Precedenta.—Authoritative absolute and (ii) conditional. By absolute lutely binding and must be followed without question, however erroneous in three cases in England decisions of courts su bound by its own decisions; decisions and those of old ice. Here the de the rejection of iti Salmond obser sxce} observes ptionally, a precedent tent’ Absolute authority loses this authority thor @ conflicting precedent of equal authorit "gh it has not been expressly overruled, inconsistent with asubsequent decision of « higher ; court Git) where the precedent decisiog incuriam, as ets . er curiam, aa where it was gen 18 gnorANce ofthe tem inciple of law which on the courts and sbc mn expediency and publi ‘adhered to by the cou shomous WON Ti 16. Stare Dé Res Judicata—The doctrine of stare decisis pas been discussed above. Res Judicata means a matter already decided. Je doctrine of res judicata prevents a party from reagitating 2 dispute ‘hdh has already been decided between the parties. ‘The main differences between the two doctrines as catalogued by Dias the decision in the dispute, while stare ‘to the rule of law involved. normally binds only the parties and their successors. joes to the ruling of lam, bindsrel sive efficacy. rps ee Ade ae Zinta aes eS other rests entirely facts of each case as ‘The view most frequently adopted, however, is that the ratio dddal of a decision is the principle of law formulated by the judge for the part jem before him. examination of the whole matter their “holas v. Penny, (1950) 2 KB. 466, 473) been laid down by the Court of Appeal in Young v. Bristol "a, Ltd."that where mat i 2-—The observations of « Judge of ‘weight particulary if the observations are in kasring of an enactment. (Nanak Chand v. State of Punjab, that do not necessarily Krishna Gupta and others, Judicial opinions opoa asual, or wholly gratuitous, (a is farComparative Lo" jan which accompanied it. ‘ ved in Slack v. Leeds Industrial C; i Ebeiee Whi Mi England it is the duty of the judge to abide by the pi by the decisions of a higher court. A decisions. The Court of Appeal is bound by its own esa In India the decision of the Supreme Court is bi [A judicial precedent of the Allahabad High jon to other inferior courts in the Uttar ‘mined. 21, DOCTRINE OF PRECEDENT IN INDIA (a) Ancient India.—In ancient India we find very little trace of the theory of precedent. The judicial cases in those days were not very complicated in nature, nor were the laws. The ancient judge was not, therefore, expected to lay down any new points or novel dicta. In the ‘medieval period also the doctrine of precedent was not in vogue. It is only ‘after the British rule was established that the theory of precedent started taking shape and through the passage of time it acquired great significance. (>) Government of India Act, 1935—Under the Government of 35, a Federal Court was established in India. Section 212 of "The law declared by the Federal Court and by any judgment of the Privy Council shall, so far as applicable, be recognised as binding on and shall be followed by all Courts in British India, and so far as respects the application and interpretation of this Act or any Order in Couneil thereunder or any matter with respect to which the Federal Legislature has power to make laws in relation to the State, in any federal State.” ‘Thus, the decisions of the Federal Court were made binding on all the subordinate courts in India. The Privy Council, however, was to be the ‘upreme judicial authority and it was not bound by its own decisions. (©) Attainment of | Independence—After attainment of dence, the Privy Council no longer remained the supreme appellate court for Indians and the Federal Court was abolished. The Constitution sf India established the Supreme Court as the final appellate court. In the States there are the High Courts and in the district the courts of the District ‘Judges. In civil matters, the court of first instance is the Munsif's court and 'n criminal matters, that of the Magistrate. 1 WilIe Comgnetve Approach me treet a S| \) ow? marks that case-law ia shove question? Austin, therefore, rema! ncertaig ‘evarding its % ore . only constitutive efficacy, ang change the law only in the otk jary law (generally: 5 the made (generally speaking) fnatre deliberation, which legislation requires, and with peer might be constructed. ‘This criticism, however, applies yj is or might alntora, who in their nnity t0 pass bills and thos Bag Rt dhrough legislation to keep pace with the time. Further, August ly ‘dmits that this objection does not apply to all judiciary law; for wiretap samippeal, after solemn argument and deliberation, it may be mag de Gruch care and foresight, perhaps, as any statute law. And thag 9," & Judiciary law is anvilled and not generally in the court of the fr Me ‘Austin levels another objection to judiciary law by tance speaking generally a rule of judiciary law, with reference to thet tha which it is first applied, is not rictly an ex post facto law bye je The mischievous consequences of ex post facto legislation. 8 Te further observes that every system of judiciary law has all the ofa system which is really vague and inconsistent. This arises masts ei tes Sliven : the enormous bulk of the docameats in which the Tete sought, and the difficulty of extracting the law (supposing the, quit Known) from the particular decided cases in which it lies embosgea consequence, a system of judiciary law is nearly unknown to the bulk of By community, although they are bound to adjust their conduct to the ntti principles of which it consists. Nay, it is known imperfectly to the mage Tawyers, and even to the most experienced of the legal profession, Or was it the elegantia of the rule, or its consistency and harmony with the bulk of the legal system? Or was it the reputation of the judges by whom the case or cases introducing the rule wen fat was a cause of uncertainty which seemed to be of the essente resemble the case actually decide although other cases, more remotely resembling, may need the care of thé legislator. In other words, the rule is necessarily limited to a narrow species or sort, although the genus or kind, which includes that species or so a ae a sav :Procedentand ts Comparative Importance 123, ime by one comprehensive law. or complete in the sense nctions which ultimately ‘out, the handicap of case-law is its ‘suffers in relation to changing social larleton Kemp Allen observes that "the variety and dae seine reports of eases may lead to ambiguities or ir in its ice it must depend arriving at his deci the increase of Beak ‘rough the Common Law is constantly, but in many cases very slowly, ‘through a |. Continental Judicial Decisions as Source of Law—In Continental Europe the doctrine of precedent has not been formally Aublished. The French Law is definite, accessible and easily intelligible. There is virtually no law in France which cannot be read in the books. A judicial decision, therefore, per se cannot claim any legal authority though it nay assist a Judge in arriving at his conclusion. Decisions of Judges have, however, of late been gaining some importance in France, Italy and Germany and they seem to attach greater weight to previous decisions of their own Courts than to the views of text-writers. A theory of precedent analogous to the Anglo-American Jurisprudence has never existed in Continental countries. Courts may freely reverse their own opinions or dissent from a superior court in a new cause. It is no doubt true that the fear of jeopardising their chances of promotion ‘Anglo-American, idence. "The elasticity resulting from this method of social experimenting,” observes Friedmann, "of ‘trial and error’, hhas been praised by Anglo-Amerian lawyers critical of their own system." QaCHAPTER IX The Comparative Approach to Interpretation of Statute Law ae tang theory tpon WBS toe terpenes judges is, however, not so wide. In case of ading to absurdity or repugnance of logically 13. interpretation of Statutes in india and CivikLaw countries, 14. Comparative approach to interpretation in common law and eh fy systems. 18. Difficutties in the way of a comparative lawyer while studying interpretation of statute law. eee ‘Tho wordn of the statue, actording to English practice, are to be ‘understood in their natural, ordinary or popular sense and are construed jccording to their grammatical meaning, unless that results in some ei 1, Interpretation of Statute Law—According to interpretation or construction i the process by which the courts leading up to legislation, parliamentary debates and other of the legislature with a view to discovering the intent of the legislator, a 3, Dominant purpose of Interpretation—According to Maxwell, are clear, plain and unambiguous, the courts are bound to gi the dominant purpose of interpretation is to determine what intention is meaning irrespective of the consequences. The words themecl such cases best declare the intent of the law-giver. However, the difference in approach or method betweer eation ‘The function of a judge in administering statute law is twofbld—G) to = sover”‘he fats of the case and thea {i to discover how the legislaturecomparative . As pointed out by Lord Brougham {Committee of the Privy Council in Crawford v. Spooner, (1846) § a "The construction of the Act must be taken from the bare words of the Act. We cannot fish out what possibly may have been the saree 1e words of a statute must prima facie (Viscount Simon, L.C., in Noakes v. 's jurisprudence, PJ. Fitzgerald, has replaced these by the functional in the belief that the latter more clearly express Y 9 and give effect to the true intention of the legislature—the mens or sententia legis. Salmond says that the duty of the judicature is to disover and to act ‘upon the true intentic legislature—the mens or sententia eg. The ‘isence of law lies in its spirit, not im ite Jeter, for the letter i significantie La to Salmond, is wher clear thi negative in some passage in which it is °Y renin, sources its trae meaning. It is oa Where the language employed admits of several constructions that may accept of others in order to give effect to th logical defect of statutory expression ‘meant what it has a ference 10a section by the wrong number gl ‘The Comparative Approach to Interpretation f Statue Law mw the letter of the law need where the law is logically is other sources as best they can the principal intention which rain fom ser Th wo ain pero cores “Thirdly, however, it may be that such ambiguities do not arise from a to express accurately the intention of the legislature, Perhaps the intention lying behi her of the legislature, and it is this which must in the absence of any real and conscious wrong number, or the omission of a'negative ly required. But the courts will go much and, in order to avoid what they regard as absurdity, Senerally euch as to preserve the previous prinipls of the common le 6. Primary Aim of Interpretation—Both according to English Continental judges the primary aim of the interpretation of a statute is to ‘eek the intention of the legislature. A statute is to be construed according to the intent of them that make it, and the duty of courts is to act upon the1e method of and approa’ the subjective theories of methods of interpretation, the Golden Rule; (3) the : Plain Meaning Rule—The literal or plain meaniag idly been expressed by Jervis C.J. in Abley v. Dale (1851, the precise words used are plain and unambiguous, in oar + We are bound to construe them in their ordinary sense, evey o lead, in our view of the ease, to an absurdity or manifat Dias observes that there is, in the first place, an unfortunate tendeas to imagine that the Co * the intention Parliament on the hypothesi i best declare the intention w giver." But the Literal Rule is being applied, any reference to Parliament is better avoided. Secondly, the "plain meaning the inherent wealmess that it is not always easy to say whether a word i “plain” or not. According to Dias, the literal rule needs to be understood subject tothe following five explanatory riders : (QD) The statute may itself provide @ special meaning for a term, which is usually to be found in the interpretation section. (2) Technical words are given their ordinary technical meaning if the statute has not specified any other. (3) Words will not be inserted by implication. (4) Words undergo shifts in meaning in the course of time. (5) Finally, and by no means the least, it should always remembered that words acquire significance for their eantext (b) Golden Rule—The golden rule departs from the strictly lier! rule, inasmuch as according to the literal rule the plain meaning has to adhered to even to the extent of absurdity. It is, no doubt, true that it is 1@ grammatical and ordinary sense of the words may be jed 0 as to avoid that absurdity and inconsistency, but 50 thus explained the golden rule of interpretation in Becke v. 2M& W. 101, 195) "Tt is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified so as to avoid such inconvenience but no further” Lord Reid thus explained the rule in Luke v. Inland Revenue Commissioners, (1963) A.C. 587, 57} “To apply the words literally is to defeat the obvious intention of the legislature and to produce a wholly unreasonable result. T> achieve the obvious intention and to produce a reasonable result, we must do some violence to the words.” sed and considered—Ist, What was the Common Law before the making of the Act; 2nd, What was the mischief and defect for which the Common Law did not provide; Srd, What remedy hath Parliament resolved and appointed to cure the disease of the Common Law; 4th, The trae reason of the remedy. Dias observes that the propositions in Heyelon'’ case were probably adequate to deal with the limited kind of legislation that then existed but today on account of statutes putting into effect new social experiments and altogether operating on a scale much larger than before, Heydon's cas: itself 's somewhat inadequate and it should be broadened and adapted to meet the Present day conditions. Dias further observes that in the following cases, the Courts have ‘tdopted an approach more akin to the "mischief rule” than to any other. “1. ‘The question whether or not a person is entitled to compensation for harm sustained as a result of a breach of a statutory duty depends upon whether the mischief, which the statute was Gesigned to eradicate, contemplated damage to him or to the class of Which he was a member. (Gorris . Scott, (1874) LR. 9 Exch. 125}ite in question behaviour at "eb. 198, 17), bare the pi nde Lx. Daniel, (1924) 1 t not lmnposedt ta the interest af revenue (Sith. Mawhood, (BAB) 14 ‘mischief rule’. [R. v. Males, (1962) 2 QB. 500)” It is the duty of the Judge to make such construction of @ statute as shall suppress the mischief and advance the remedy. considered alone apart from the rest of the Act. 5 11, Rule of Casus Omissus.—This rule provides that a matter whieh should have been, but has not been, provided for in a statute or in statutor rules cannot, as a general rule, be supplied by construction, as that wil amount to legislation. No doubt, itis the duty of the court to try ant ns of an Act passed by the legislature. But, 71 RWM. Dias : Jurieprudence, 2nd BA, pp. 134-136,Comparative Law ithe were a eg 3 statute. Thea sapable of two es will try to find out the true intention of the ‘both the common law and eivil law countries, judges a whole. Apart from the above, the common law system of interpretation diffe, from the civil law system in the following respects: ‘meaning rte is plain and clear and capable of one and only one interpretation, it should be interpreta in its ordinary and natural meaning, even though it may cause injustice In France and other continental countries, the courts in the ordinary course follow literal expression of the statute, but where such interpretation is apt to lead to absurdity or gross injustice, they can disregard the rule ad ‘sdopt logical interpretation. In eivil law countries, there is the supremacy codes and other statutory laws, and the courts are inclined to discover ani sive effect to the true intention of the legislature whenever grammatial interpretation leads to some absurdity Secondly, in common law countries, a judge with a view to clearing th ambiguity ascertains the meaning of the statute from the intention ofthe legislature by taking the words with reference to their context and taking recourse to internal and external aids in the construction of statutes. The intrinsic or internal aids in the construction of statutes are derived fr context, preamble, headings, title, marginal notes and interpretation caus ‘The common law countries do not consult the debates in Parliament ot af other record the enactment. é The civil law procedure is however different. In France, the judges order to give effect to the intention of the legislature, consult parliaments proceedings, leading legislation. The German courts courts in France, con: case of a doubtful statute, debates and reports parliamentary committee, parliamentary debates. the ministerial and parliamentary deliberations, leading ! ‘thirdly, the compared t0 conrthe rule of wr settled Taw, it is to be followed although some possible incon net from a strict observanee of it. In India the normal rule as to the say rte is that subordinate courts are bound, in the absence of any Pecan, of the Supreme Court, to follow the decision of the High Court to deeitpey ae subordinate continental practice, however, is diametrically opposite to that in on law count fance, Germany and other cl law countries, commgges are required to do justice and are not necessarily governed by the She Of any super court precerourthly, in Common Law countries the judges do not take social, gone and other factors into consideration ‘while interpreting a statute, setife guided by the established doctrines and principles, however, there is a current trend of thought which is of the jw that judicial system should change and it must be progresive and er ie jugs thould look at the wnaper or time while staiaataney avfee. The law, according to this view, must express justice as understood {the people in a particular country and it must shape according to the ty [Rat of the masses. The interpretation ofa legislation abviously tended iniotect a weaker section of the community must be informed by the socal te Poestive and purpose, and within its grammatical Nesbilty, mist futher [othe beneficent object. In continental countries, however, the judges interpret the law by reference to its history, its effect on society, and cconomie activites, Is France and Germany the judges adopt. teleologiealinterpeeation ie, interpretation in term of its purpose, and a continental judge ie ree Ail in the details of the statutory provisions by reference te the presumed legislative intention. Lastly, the Common Law countries are immune from the influence of various theories found in eivil law countries, In civil law counties, oweven the various theo in the way of a comparative lawyer while studying comparative interpretation of Statute Law-—The first dificulty which a comparative lawyer may have to encounter isthe existence ive and objective theories of interpretation. The objective theory @ progressive system of interpretation which takes into ion the surrounding circumstances as they exist at the time of the mirPretation of the statute. The result is that although the text of the law aa Ain the same, there may be varying interpretations of the rule at ‘ifferent periods and in different countries.16 Comparative Law ‘The next difficulty is that of linguistic nature. Words and expressions found in a statute in one language are invariably of technical nature, and those words when put in a different language may not exactly connote the same idea. In order to maintain uniformity it is desirable that multilatera} international conventions or uniform law should be drafted in the first instance in one authoritative language only. If they are simultaneously drafted in two authorised languages, similar words and expressions used in two versions may convey slightly, and in some cases highly, different ideas, Another difficulty that may arise before a comparative lawyer is "the possible influence of national concepts of law on the interpretation of international statute law." Then, there is the difference in value attached to precedents in different countries. Precedent is a judicial device of developing the law. The law courts change and develop the law under cover of deciding a case. In England every court is absolutely bound by the decisions of courts superior to itself, the House of Lords is absolutely bound by its own decisions and the Court of Appeal is bound by its own decisions and those of older courts of coordinate authority. In continental Europe, however, the doctrine of precedent has not been formally established. There a judicial decision per se cannot claim any legal authority, though it may assist a judge in arriving at his conclusions. Decisions of judges have, however, of late been gaining some importance in France, Italy and Germany and they seem to attach greater weight to previous decisions of their own courts than to the views of text-writers. In practice, therefore, the decisions of the Courts of Cassation in France and the Reichsgericht in Germany command respect from the subordinate courts and are treated as almost conclusive. The Court of Cassation is, however, free to overrule its previous ruling, but the Reichsgericht can do so only when the matter is decided by a plenary session where all the divisions of the court sit together. However, there is always the apprehension that, while Anglo-American courts may be bound by a precedent, the continental courts may not be so bound unless the rule of law has been interpreted consistently in that manner by higher courts. Finally, Gutteridge observes that some difficulty may also arise from the fact that legal mentality varies from country to country. "A French judge, who has in mind certain concepts such as that of abus des droitis or ordre public, may well interpret an international rule in a way different from that of his English colleague, who is a stranger to the judicial ideas underlying these concepts." In order to overcome these difficulties it has been suggested that we might establish an International Court of Appeal. The idea is largely ® utopian one. We as nations are still unprepared for such a Court on account of excessive nationalism. Any attempt to impose on men and nations an international pattern of life who are still provincially minded will be @ puerile attempt. Moreover, the proposed International Court of Appeal would, as Gutteridge observes, "involve the building of yet another storey 02 to @ structure of existing appellate courts which is already top-heavy." aoCHAPTER XV Nature and Characteristics of Unified Law Unification. Different Forms of Unification. Objects of Unification. Difficutties in the way of Unification of Law. Movement for Unification of laws in Great Britain. Movement for Unification of Laws in the United States of America. oCOReEDne 1. Unifieation.—According to Gutteridge, "unification is a term employed to denote the process by which conflicting rules of two or more systems of law are replaced by a single rule. It is also used to indicate the expedience of framing international rules in advance for the purpose of anticipating conflicts which might arise if several states were to legislate independently in order to meet a situation of a novel and unprecedented character." 2. Different Forms of Unification.—There is first complete or incomplete unification, depending upon the degree of unification of the conflicting rules or laws of different countries. Then the unification may be bilateral or multilateral. The former is restricted to the laws of two countries, while the latter comprises the laws of several countries. Regional unification relates to the unification of laws of a certain region. The internal unification deals with the uniformity of laws within the territorial area of a State, such as the Swiss Codes or the Uniform Laws of the United States, while the external unification deals with the laws of several States, such as the Geneva Uniform Laws of Negotiable Instruments. Partial unification embraces unified rules involving the application of some foreign element only, such as residence of the parties placed in different jurisdictions; in entire or complete unification the various national rules are abandoned and the unified rules dealing with all the aspects are adopted. 3. Objects of Unification—There is an amount of certainty when the laws relating to a particular subject obtaining between two or more countries are uniform. They protect the businessmen and merchants dealing with foreign trade from the uncertainties and diversities of laws operating in different countries. The uniformity of laws tends to render the law readily ascertainable and to obtain unity over a large area. It relieves the economic uncertainty from the minds of traders. Apart from the economic factor, the diversity of laws creates other hardships. There is, for instance, no uniform rule in different States as to (159)10 Comparative La acquired by the national required by the nation Nations varies wid to jus sanguinis by ee th birth their subjects whether borg ™” Wes legitimate children who acquire te ty of their mothe conflict of jurisdiction might arise whee 's bom on the soil of one State of parents who are citizens of another There not acquire British 1© Convention of 1990 on the Conflict of Nationality te of statelessness and double nationality by whose parents are unknown or who have ny Futlonality, or whose nationality is unknown, are to have the nationality of the country of birth ‘There is no doubt that civilised nations have evolved their own national Jews which are a valued and precious heritage from the past, derived after 2 good deal of experience, but, as Gutteridge observes, "such considerations CREME not to act as a bar to the removal of differences of rules which are ‘obstacles to free and cordial intercourse between the nations or may impose unnecessary hardships on individuals” 4. Difficulties in the way of Unification of Law—The most insurmountable difficulty faced by a unifcation is that we are still wedded to the idea of excessive nationalism. The failure of Comparative Law to play an effective role in the affairs of the States is due mainly to the fact that we ‘are attempting to impose an international pattern of life on men and nations who are still provincially minded. Unification requires sustained efforts on the part of those who are sce i la on ee of he friction, The idea of abandoning national rules by evolving a common rule time to devote themselves to this task. Even Judges who by the process of interpretation of law can carry out the desired reform fre goneraly hostile to unification. Greater success may be expected by adopting partial unification a8 it does not completely displace national rules but only beings within ive omit egal relationship where some foreign element is involved But then it Nature and Characters of ied Law the ofthe ultimate buyer remains uncertain, remain shrouded in doubt as 19 which law wi imited success has been nchieved in this process. The Warsaw Convention of 1029 on Carriage by Air in, however, a notable example of partial Shifetion 5. Movement for Unification of Laws in Great Britain— ions in the Hague Co for the Unification of Private International Law and the Conferences of 1910 and 1912 for unification of the laws of negotiable instruments, she has not been averse to it. In fact, the British initiative and collaboration have given great impetus to the movement for unification. The York-Antwerp Rules of General Average, the various Bi Conventions on Maritime Law, the Hague Rules of 1921 on the Liabi f Shipowners and the Foreign Judgments (Reciprocal Enforeement) Act of 1933 are examples of British initiative. Great Britain has also adhered to the Warsaw Convention of 1929 on the Law of Carriage by Air and other conventions concluded by the International Labour Organisation. Great Britain also signed the Hague Convention of 1964 for {he purpose of implementing the Uniform Law on the International Sale of ‘The English-speaking countries are well-knit in the matter of uniform and coherent Jaws. Their fundamental principles and legal institutions are patterned on the same lines. Even the British Overseas Dominions have followed the English statutes. In India much of the enactments are almost «facsimile of English statutes. 8. Movement for Unification of Laws in the United States of ‘America.—There is greater need for uniformity of laws in the United States* of America, having separate jurisdiction for each State. With this end in Yiew the work was entrusted in 1892 to the National Conference of Commissioners on Uniform State Laws. They were required to put up draft uniform laws on various legal topics. They did so in consultation with the rican Bar Association and also other commercial interests concerned in ‘The Negotiable Instr ents Law has been adopted by all the “in the laws relating to the Bills of + sand a large number of States have he a+ laws of different