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JURISPRUDENCE

THE APPLICATION AND EFFECTIVENESS OF COMMON LAW IN


THE MODERN ERA

Submitted by-
Vidyul Dayal
Class: BBA LLB (2017-22)
Div: A
PRN: 17010224085

of Symbiosis Law School, NOIDA


Symbiosis International University, PUNE.

In
AUGUST, 2017

Under the Guidance of


Prof. Meera Mathew

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CERTIFICATE

The project entitled “THE APPLICATION AND EFFECTIVENESS OF COMMON LAW IN THE
MODERN ERA” submitted to the Symbiosis Law School, NOIDA for Jurisprudence as part of Internal
assessment is based on my original work carried out under the guidance of Prof. Meera Mathew from July,
2017 to November, 2017. The research work has not been submitted elsewhere for award of any degree.

The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.

I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

Signature of the candidate

Date:

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ACKNOWLEDGEMENT

I would like to extend my whole hearted thanks and deep sense of gratitude to my esteemed guide Prof.
Meera Mathew for her invaluable guidance and encouragement that she showed me throughout my study. I
am thankful to all my friends for their encouragement, moral support and invaluable help wherever and
whenever needed. I am also grateful to the researchers who had taken significant efforts to publish their
research articles and journals on the web for the reference of others. Last but certainly not the least I am
indebted to the almighty for bestowing his blessings upon me.

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INDEX

Serial NO. Topic Page NO.

1. Introduction 5

2. Objectives 5

3. Research Questions

Common Law and the


4. relevance of the Precedent 6
System in the modern era

The Common Law in India


and its influence on the
5.. Adversarial System ( A 8
comparative study between
India and Pakistan )

6. Conclusion 10

7. References 11

6. Interim 12

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Introduction

The Common Law is derived from judicial decisions or precedents rather than statues. It is the body of law
developed by judges, courts and similar tribunals. It is not codified as opposed to civil law, which is a
codified form of law.

The emeritus Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School and
the British legal historian A. W. B. Simpson has defined the common law system as a customary system of
law, consisting of a body of practices observed and ideas received by a caste of lawyers 1. These ideas, he
argues are used to provide guidance in the rational determination of disputes and in advising clients 2.

The Common Law System is one of the three major legal systems in the world today. Common law
developed in England, influenced by the Norman conquest of England which introduced legal concepts from
Norman law. Common law was later inherited by the Commonwealth of Nations, and almost every former
colony of the British Empire has adopted it. Common law is currently in practice in Ireland, most of the
United Kingdom (England and Wales and Northern Ireland), Australia, India (excluding Goa), Pakistan,
South Africa, Canada (excluding Quebec), Hong Kong, the United States (excluding Louisiana) and many
other places.

The essence of Common Law is that it is based on law formed from judicial precedents or stare decisis. Stare
decisis is the legal principle of determining points in litigation according to precedent.

The adversarial system or adversary system is a legal system used in the common law countries where two
advocates represent their parties' case or position before an impartial person or group of people, usually a
jury or judge, who attempt to determine the truth and pass judgment accordingly.

Objectives

This research project is aimed at ascertaining the current applications of the Common Law System. It is
aimed at bringing out the jurisprudence behind it. This project in its true sense will be a comparative
analysis. The secondary approach which involves the summary, collation and the synthesis of
existing research will be followed. The following are the objectives of the research project:

 To determine the plausible reasons for the origin of the Precedent System
 To determine the relevance of the Common Law System in the present Indian legal scenario
 To conduct a comparative analysis on the influence of the Common Law upon the adversarial system
of India and of Pakistan

1
Cf. Llewellyn’s ideas, ante, 992
2
Ante, 1088
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Research Questions

I. Common Law and the relevance of the Precedent System in the modern era

Common Law is the case law and a collection of precedents. Precedents are the decisions taken by a judge of
a court or tribunals or the jury with respect to a particular case in question. Some of these precedents go on
to be recognised as landmark decisions that are often cited.

The term 'common law' was presented in the 1160s, when Henry II of England set up the mainstream
English tribunals. The Common Law was the law that developed as "normal" all through the domain as the
ruler's judges took after each other's decisions to make a bound customary law all through England. It
consolidated and hoisted neighborhood custom to the national level and reestablished a jury framework
wherein they were sworn to decide criminal allegations and common cases. The jury achieved its decision
through assessing basic nearby information, not really through the introduction of evidences, a contrasting
factor from the present common and criminal courts. Henry II built up the act of sending judges from his
own court to preside over cases all over his kingdom. His judges would resolve the conflicts on their
understanding and individual perceptions of the common customs and traditions. These choices would be
recorded and documented. In time, a principle, known as stare decisis developed, whereby a judge
compulsorily took after the judgment of a prior judge. He was required to embrace this translation of the law
and apply similar standards if the two cases had comparable issues. When judges started acknowledging and
following this precedent system, the pre-Norman arrangement of local traditions and non-uniformity in law
in every region was supplanted by a system that was uniform throughout the kingdom, thus the name
'common law'.

Justice Oliver Wendell Holmes, Jr., had said, “The Common Law is not a brooding omnipresence in the sky,
but the articulate voice of some sovereign or quasi-sovereign that can be identified3.”

Thus, the Common Law System can be related to the Social Contract Theory of John Locke, an English
philosopher who authored ‘Second Treatise of Government’ (1689). He stated that persons in a state of
nature would willingly come together to form a state wherein the sovereign authority would defend them
against those seeking to injure or enslave them. People would have security in their rights and wouldn’t live
in fear. Locke argued that individuals would agree to form a state that would provide a ‘neutral judge’,
acting to defend the lives, liberty, and property of those who lived within it. Similarly, when two parties take
their case or dispute to court, they submit themselves to the decision of the court, which is ultimately binding
on them. They agree to the neutral judgement of the court. Thus, people’s rights are protected against any
infringement. Also, the courts focus on the rights of only those who take their cases to them and not on the
rights of everybody in general.

But as we can see in the present times, The Common Law System has lost its earlier significance to give way
to the present Statutory Law System. Statutory law or statute is a written law set down by a by the legislature
who are elected by the people or are representatives of the people’s will. It is a codified form of law as
opposed to The Common Law.

3
Southern Pacific Co. v Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
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This shift from The Common Law to The Statutory Law was a gradual process and a result of the views of
various philosophers. This shift wasn’t a want but a need in order to address the various loopholes existing in
the Common Law System. Jeremy Bentham, an ardent opponent of judicial legislation and common law
decision-making had said, “It is the judges that make the Common Law. Do you know how they make it?
Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till
he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way judges
make law for you and me4.” Justice Oliver Wendell Holmes, Jr., observed, “It is revolting to have no better
reason for a rule of law than that so it was laid down in the time of Henry IV5.”

The Common Law System faced many problems. The perceptions, thinking and understanding of each judge
are bound to be different. Thus, the decision pertaining to a case made by one judge may not be supported by
others. Also, the judgments are case specific. To make them the law based on just one case would restrict the
scope of the other cases and ignore their minute details. Case Laws are judge as well as case specific due to
which they have limited scope. Also, one wrong judgment by the judge would lead to injustice as it would be
recorded as a precedent. Statues as opposed to the Common Law are made for the people in general. They
cater to the rights and needs of everybody and the society in general due to which they’re uniform. They
have a wide scope and serve justice efficiently.

This can be related to the theory of Hans Kelsen, a critique of precedents. He said that the aim of the law is
to reduce chaos and multiplicity. Legal system is a normative system concerned with effectiveness of legal
system. The basic function of legal theory is to order rules and laws in a specific way. Hence eliminate all
extra legal and non-legal elements from it thus, bring uniformity.

The present legal system follows mostly the statutory law. The present legal system can be related to or said
to be in consonance with the HLA Hart’s Concept of Law. Hart believes that there are two different types of
rules which comprise the ‘essence’ of law: Primary rules and Secondary rules. Primary rules are ‘duty
imposing’ rules. They impose certain specific duties upon the citizens of a state to act in a certain manner, or
they may be subject to certain legal sanctions. Hart characterizes primary rules as ‘basic’ rules. They tell the
citizen what one can and cannot do under the law. Similarly, presently the legal system has the Fundamental
Duties, laws setting speed limits, laws prohibiting trespassing among others. Secondary rules recognise and
enforce the primary rules thereby providing remedy. They are what Hart calls power-conferring rules. They
state the manner in which primary rules may be acknowledged, transformed and adjudicated. For example,
the power to legislate to the government and the right to vote to the citizens. The legislature must follow the
procedure in order to make a legal will. Secondary rules are, as Hart puts it, ‘rules about primary rules.’
Thus, Hart talks about the rules of recognition (law making/executing/interpreting power), rules of change
(amendment/review) and the rules of adjudication (judicial rulings/activism).

Thus, The Common Law developed after the Norman Conquest in England under Henry II. It came to India
during the British Colonial rule under the East India Company. It was followed as the mainstream legal
system for many years before gradually losing its significance to the Statutory Law System with growing
emphasis on democracy and the government. The Common Law System has become only passively relevant
in the modern era wherein the lawyers mostly only refer to the pre-existing landmark decisions.

4
Jeremy Bentham, “Truth versus Ashhurst”, in The Works of Jeremy Bentham (W. Tait, Edinburgh, 1843), vol. V, pp. 233-237, at
p. 235
5
Oliver Wendell Holmes, Jr., “The Path of the Law”, 10 Harvard Law Review 457 at 469 (1897).
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II. The Common Law in India and its influence on the Adversarial System ( A
comparative study between India and Pakistan )

The adversarial system or adversary system is a legal system used in the common law countries where two
advocates represent their parties' case or position before an impartial person or group of people, usually a
jury or judge, who attempt to determine the truth and pass judgment accordingly.

In the Adversary System, a case may not be judged without having been heard the pleas of both the parties.
Both the parties must uncover in due time to each other verifiable contentions supporting their cases and the
legitimate contentions they depend upon with the goal that each party may layout his case. Parties pick
uninhibitedly their lawyers either to guide or counsel them as per what the law permits. Oral contentions are
held out in the open hearings, with some exception where the law permits that they be held in the judge's
chamber. The parties or their lawyers argue their cases. In his choice, the judge may think about grounds,
clarifications and reports depended upon or produced by the parties, if they were in consonance with the
adversarial system. He should not construct his choice in light of lawful contentions that he has raised sua
sponte6 without having first welcomed the parties to remark subsequently. The judge or the jury is required
free from predisposition.

Established in the goals of the present Indian legal framework, the modem Adversarial framework mirrors
the conviction that everybody is qualified for a day in court before a free and unbiased judge. The
Adversarial System requires each side to exhibit its own evidences and contentions. This is believed to be
the surest approach to reveal the facts that will empower the judge to determine the contention. In an
Adversarial framework, the judge or the jury is an unbiased and detached judge of the facts, impartially
analyzing them with the goal of settling the conflict between them.

The term Adversarial implies a competitive argument between concerned parties regarding their conflict. In
this procedure when there is lawful wrong or damage caused to a man or decided class of people by reason
of an infringement of lawful right or Constitutional right, at that point distressed party (i.e., Plaintiff\
Petitioned Applicant) by paying of the recommended court charge may appeal to the proper court to enforce
their right.

Theoretically, the adversarial systems of India and Pakistan are mostly similar. But, in addition to the
District courts, the High courts and the Supreme court, Pakistan also has a Federal Shariat Court (FSC). The
FSC consists of 8 Muslim judges, out of which 3 must be Ulema well versed with the Islamic Law and a
chief justice. It can upon its own motion, examine whether a certain provision of law is repugnant to the
injunctions of Islam. This is in contrast with the Indian adversarial system where the courts cannot assume
motion on their own and require a petition from a citizen or the government to take any action.

In reality, the Pakistani adversarial system and the legal system has suffered immensely under the decades
long military rule with hardly any connections with democracy. As a result of this military rule, the judicial
framework has become somewhat distorted and malfunctioning. The legal proceedings are inefficient,
delayed and corrupt. Also, under such disturbed law and order situations the imparting of quality legal
education and training becomes almost impossible. This hinders with the numbers of skilled lawyers to
represent parties at dispute in a court of law. As opposed to this, owing to the developing and relatively
peaceful atmosphere in India, the representation of parties in the courts of law is adequate and satisfying.

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Latin for on one’s own accord
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Pakistan is characterised by religious extremism. This is the most significant point that brings out a vast
distinction between its own and India’s adversarial system. Due to this obvious dominance of Islam and
Quran in the law and order of Pakistan, the dispense of justice is more probable for a Muslim citizen. But, in
India, it being a secular country, justice is dispensed to everyone irrespective of their faiths.

The citizens of Pakistan, have eventually lost faith in their adversarial system and the dispense of justice due
to its inefficiency and the unchecked rise of crime, violence and terrorism. Malala Yousafzai, a teenage girl
was shot by Taliban terrorists in Pakistan’s Swat valley for taking an exam and going to school. The Indian
Adversarial system is comparatively highly efficient and people believe in the justice of the judiciary.
Terrorism doesn’t have its roots in India.

The present Adversarial system in India has been highly influenced by the Common Law. The common law
gives significance to the court judgments and so does the adversarial system. In fact, the adversarial system
contributes towards a better application of the common law principle as it insures fairness, impartiality and
justice in the court judgments. It ascertains the following of the proper legal procedure, fair representation to
the disputing parties and a proper trial to achieve the objective of justice which gives reasonability and
weightage to the Common Law ultimately.

The Pakistani common law system is challenged and faces fierce competition from the more dominant
Islamic Law. The essence of the Adversarial system which is to impart a fair trial and justice to the disputing
parties, is lost in the blind will to build a hybrid Arab Culture. Both the Indian and the Pakistani are
developing democracies with an Adversarial system but Pakistan faces an insurmountable pressure from the
military and the Jihadist group.

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CONCLUSION

Thus, one understands that the common law originated and propagated due to the end of Feudalism, the
imparting of a formalised education in law, the creation of a bar and bench and a judicial framework and
finally and most importantly due to the record of the decisions of the court as Precedents. The society and
the country gradually moved from the common law system to the statutory law system due to the certain
difficulties being faced in the administration of justice.

One can agree that the Social Contract theory of John Locke and the common law system initially, were
closely interwoven. Also, one agrees with the theory of Hans Kelsen that law needed to be codified and
made uniform to reduce chaos and multiplicity. Hence, the advent of the statutory law system is in
consonance with Kelsen’s theory. One also sees the reflection of HLA Hart’s Concept of Law in the present
day legal system where a citizen has duties and the legal system enforces them.

One can also understand with the help of this research project the journey of the common law from its
inception in England to its present-day relevance in India. Based on this understanding, one can favour this
shift from case laws to statues as common law is-

 Reactive and not proactive


The courts can change law only ex-post facto i.e. after the fact and not assume action on its own.

 Easily overridden
The legislature can easily overturn case laws as it is the supreme law-making body in India.

 Undemocratic law
The legislature is an elected body of people’s representatives but the judges are appointed by the
court system. Thus, they are unaccountable to people and hence criticised.

The Common Law and the Adversarial system have their interests interwoven. In fact, one understands that
they lead to each other and actually form a circle. The essence of common law lies in judicial decisions and
the adversarial system is based on the imparting of fair judicial decisions.

Through the study of this research project, one understands that the Indian and the Pakistani Adversarial
systems though being almost similar theoretically, differ from each other due to

 The Islamic dominance in Pakistan


 The decades long military rule

Pakistan can improve upon the enforcement of its adversarial system by laying emphasis on democracy
rather than Islam and Quran. The unlimited importance given to Islam is one of the major reasons for its
non-existent development and economy and the deep-rooted terrorism. The enforcement of the law and order
should be the job and prerogative of the administrative and executive bodies rather than the military. Only
then will their adversarial system become true to its objective.

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REFERENCE

Bix, B. (2016). Jurisprudence: Theory and Context. India: Sweet & Maxwell.

Freeman, M. (2008). Introduction to Jurisprudence. London: Sweet & Maxwell.

Aryan, A. (2011, March 13). Legislation & Common Law : Indian Legal System . Retrieved August 29,
2017, from Legal Services Inida: http://www.legalservicesindia.com/article/article/legislation-&-common-
law-indian-legal-system-587-1.html

COMMON LAW – ADVANTAGES AND DISADVANTAGE. (2015). Retrieved from Lov Gov Pol:
http://lawgovpol.com/common-law-advantages-disadvantages/

Pakistan Legal System. (2016). Retrieved from Global Security.

Three legal systems. (2008, December 22). Retrieved from Dawn: https://www.dawn.com/news/840172

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