This article is written by Madhuri Pilania from Symbiosis Law School, Noida. This article deals with the Effects of the Common Law System in India.

Introduction

The Common Law is a body of law which is derived from judicial decisions also known as case laws. Common Law has been derived from the universal consent and the practice of the people from time immemorial. It is a system of jurisprudence which initially originated in England. It includes those set of rules of law which derive their authority from the statement of principles found in the decisions of Courts. The common law system includes tradition, custom and usage, fundamental principles and modes of reasoning. It is the embodiment of comprehensive unwritten principles, which were derived out of natural reasoning and sense of justice.

This system requires several stages of research and analysis to determine the appropriate law in a given situation. The facts should be ascertained properly and relevant cases and statutes are to be identified. The common law is different from codified law as it follows the judgment while the codified law precedes it. So it can be rightly said that it is a system of rules and declarations of principles from where the judicial ideas and legal definitions are derived.

If a similar dispute has been resolved in the past, the Court is bound to follow the reasoning used in the prior decision. In other words, it is developed by judges through decisions of courts and similar tribunals that are also called case laws.

It gives precedent weightage to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The precedent is also known as “common law” and future decisions are bound by it. In future cases, when parties disagree on what the law is, the common law court looks to past decisions of the relevant Courts.

If a similar dispute or case has been resolved in the past, the Court is bound to follow the reasoning used in the prior decision this is also known as the doctrine of stare decisis. If the Court gets to know that the current dispute is different from the previous decisions of the cases, then the judges have the authority and duty to make law by creating a new precedent. The new decision of the Court becomes precedent and it will bind the Courts in future also. But sadly, the development of the common law in many cases is now of historical interest only. However, the basic principle is preserved, statutory changes have been made which modify the effects of many landmark cases.

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History of Common Law

It is a term that was originally used in the 12th century, during the reign of “Henry II” of England. The ruler established tribunals with the goal of establishing a system which is uniform in deciding legal matters. Such decisions created a unified “common” law throughout England. The precedent set by the Courts through the twelfth and thirteenth centuries were often based on tradition and custom and was known as a “common law” system.

Common law in the United States dates back to the arrival of the colonists, who brought with them the system of common law with which they were already familiar. They followed the American system and the newly formed states adopted their own forms of common law which were different from the federal law.

The application of common law has been comprehensive in the Indian context. It has been incorporated in the Indian legal system over two centuries by the English to the point that one cannot assign an individual identity to Indian jurisprudence. Therefore, it can be said that common law has been applicable 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 found that much of the law compiled in codes that we have today were primarily derived from the Common Law principles.

The basic statutes that govern 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.

One thing can be said about these legislations is that they have stood the test of time with minimum amendments. Codification of laws made the law consistent throughout the country and stimulated a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the nation.

Indian legal system by Common Law is another contribution of the adversarial system of trial. In this system, the person who is accused is presumed to be innocent and the burden is on the prosecution to prove reasonable doubt that he is guilty. The accused enjoys the right to silence and cannot be forced to reply. The truth is supposed to come into view 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 overseer 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 is to pronounce the judgment regarding the matter.

Does Common Law lead to Judicial Overreach and Judicial Activism?

If the Judiciary gets into the creation of laws or steps into the role of the Executive without a strong reason, it leads to the situation of Judicial Overreach. In other words, it occurs when the Court acts beyond its jurisdiction and interferes in making of the laws. Common law system leads to judicial overreach because common laws are judge-made laws.

Judges continuously apply the existing laws to new situations and thus creating new laws. Judges perform the judicial function and go through the historical, social and legal text. It is considered as activism and becomes law themselves. Judicial activism has created the scope for judge-made laws or the common law system and that is an abuse of the constitutional power given to them. Judge’s decision is affected by several social and political factors that lead to judicial activism and judicial overreach.

The Legislative creates laws and the judiciary is supposed to interpret and enable the implementation of laws and not make laws.

Judicial Review and Activism are considered as valid and necessary. Judicial overreach is sometimes considered as an obstruction or undermining the functions of other arms of the Government. Judicial precedents have derived their force from the doctrine of stare decisis.

Common Law is Rigid and Inflexible

The Common Law has a number of defects but it is mainly rigid and inflexible. The inflexibility of the system leads to injustice because matters that were not within the scope of writs recognized by the Common Law are dismissed. Also, the Common Law does not recognize rights in the property other than those of strict legal ownership. The Common Law Courts had no power of enforcement. Also, it does not allow any form of oral evidence.

Clear weakness of the precedent is the inflexible nature of binding precedent. Lower Courts in the hierarchy are bound by existing precedent if they cannot distinguish material facts. Judgements from such previous cases are not taken into consideration. This creates a system of lawmaking that is rigid and not open to change. 

Does Common Law give rise to Jury Trial and Adversarial System?

The adversarial system is a legal system that is used in the Common Law countries where two advocates represent the cases of their parties to a jury or judge. They determine the truth and pass the judgement accordingly. It is a two-sided structure.

A trial without a jury, in which both questions of fact and questions of law are decided by judges is known as a bench trial. The lawyers are given free advice for the issues that they present. The judge presides over the trial and rules on issues of procedure and evidence, asking questions of the witness to clarify evidence. He concludes the trial by summing-up the facts for the jury and advise them about the relevant law. It is not open to the judge in an adversarial system to enquire the facts and evidence beyond that are presented by the opposing lawyers. The role of the judge is largely passive, but the judge can be partial sometimes on giving his views or judgements.

Solutions to the Issues

Judges are required to apply the laws made by the executive and the legislature. In Common Law, judges make the laws that lead to judicial overreach. If the integrity of the judiciary needs to be preserved, it is important that the executive and the legislature acts with accountability and transparency.

To ensure the checks and balances, the Constitution separates the powers between the executive, legislature and the judiciary in a political democracy. Any laws made or any amendment made is the domain of the legislature and not the judiciary.

The judiciary can introduce or enforce policies which are the domain of the executive, it can lay down regulations which are the domain of the legislature and in this way the work and powers divided can reduce the need of judicial overreach.

There should be some mechanism that checks judicial overreach that will make the judiciary accountable to the citizens. Judges need to remember that their work is to interpret law and not make or give laws. 

The jury trial has given rise to a system in which facts are concentrated in a single trial rather than multiple hearings and therefore the trial of Court is greatly limited. Jury cases can be reduced in number to avoid the impartiality in the decision of the cases. A judge in jury should discharge the person who is unsuitable for jury services. There should be a system of alternate juror in England and Wales to take the place of discharged juror.

No external pressures and threats should be allowed and the jury should not be under the influence of the trial judge. Adversarial may lead to injustice thus, to avoid that, fair trials are needed. It should properly observe the rights of the defending and prosecuting rights and prosecution should be allowed to present the facts as they are interpreted. Both the parties should be given a chance to present witnesses and evidence to support their positions.

The only remedy provided by the Common Law was not appropriate and also damaged in certain cases. This led to injustice and the need to remedy the weaknesses in the Common Law system was there. A general rule is less likely to do justice in all the particular cases as the facts of the cases may not be the same each time.

An attempt to construct the qualifications in advance, it is necessary to do justice in all cases.  But it would lead to a system of rules that are too complex, even if all the problems could be foreseen.

The Court of Chancery emerged as a solution to the common problems faced by the Common Law system by the law of equity. Equity of law was derived to balance some fair results because of some strict decisions in the past in Common Law. The decisions in common law were subjected to injustice. The decisions were permanent and rigid as they were made by the judges. Equity came to remedy Common Law as they did not provide a fair result. Equity system is a separate system of law and it moderates the Common Law and also helps to soften the Common Law. Equity provides remedies like injunctions, specific performance, compensation, rectification and many more. Equity can use the common injunction to prevent Common Law judgement being enforced so that there is no injustice in the decision made by the judges. There should be common rules in Common Law so that judges are not liable for the conduct. Judges have to follow the precedent but if they could change it, the rigidity of Common Law can be reduced. It was made so that the errors in Common Law can be minimised.

Conclusion 

Common law has disadvantages for which remedies can be derived. In Common Law, no two cases can be the same, therefore, the laws made by the judges need not be a perfect match with the facts of the case. The Common Law system was originally derived from England. It started because there were different situations for different cases and so the judges made case laws rather than applying the general statements of principle. However, some defects were found in this system.

It is rigid and not flexible since once the case judgements are made, it needs to be followed in the same way and no changes can be made. Lengthy records need to be maintained and to access the previous cases, a uniformity needs to be there. Nothing is codified like the other laws. In other countries, this system is popular along with jury trials. To remedy the defects of the Common Law system, the concept of Equity of law came. Also, Common Law sometimes leads to judicial overreach which can be overcome. The body of past Common Law was made to bind judges to ensure consistency and uniformity in deciding the case judgement but because of this, it became rigid. It can be said that Common Law has been applicable here in a different format than that of England as the needs and demands of the Indian society were different from that of the English.

References

• https://www.jstor.org/
• https://www.lawteacher.net/free-law-essays/administrative-law/what-is-common-law-administrative-law-essay.php
• https://common.laws.com/common-law/common-law-v-statutory-law