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This article is written by Lakshay Kumar, a second-year B.A.LLB student of Delhi Metropolitan Education, Indraprastha University. In this article, he talks about the evolution of common law and its expansion to Asia, especially to India.

What is Common Law

Common law is the body of customary laws based on the judicial decisions and is embodied in the already decided cases which are administered in the common law courts of England since the middle ages. Common law emphasizes the centrality of the judges in the development of law. Common law generally contains the rules and other doctrines gradually developed by the judges of the English courts as the foundation of their decision and added over time by judges of that various jurisdiction the authority of the accumulating doctrine.

Origin of common law

The English common law originated in the early middle ages in the King’s court. It did not have substantive rights but it consisted of procedural remedies. Until the 19th century, the English common law continued to be developed primarily by the judges rather than the legislature. The common law of England was largely created in the period after the Norman Conquest of 1606. Body of rules was created in northern Europe and local customs governed most matters.

Church played a large part in the government, crimes were treated as wrongs for which compensation was provided for the victims. Serious wrongs were regarded as public crimes rather than personal matters, and the perpetrators were punished by death. An important development took place in the growth of common law during the Henry II reign. Royal officials roamed around the country, inquiring about the administration of justice, the church and the state were separated and had their own laws and courts. All these developments led to the growth and emergence of a body of rules based on local conditions.

Basic Principles of Common Law

Common law Adjudication

In common law jurisdictions, several stages of research and analysis are required to determine what the law is, first one must ascertain the facts, then one must locate the appropriate statutes and cases, then one must extract the principles, analogies, and statements by various courts of what they consider regarding the facts of the present case, after looking into all these factors it is determined what the law is.

Interaction between common law and statutes

In common law legal systems, the common law is crucial to understanding almost all important areas of law. In States like the United Kingdom, Wales, and England the basic law regarding torts, contracts, and property do not exist in statute but it does in common law although with some variations.

Common law as the foundation of commercial economics

The reliance on judicial opinion is a strength of common law system and is a significant contributor to the robust commercial systems in the United States and the United Kingdom because there is common law to give reasonably precise guidance on almost every issue, parties can predict whether the proposed course of action is lawful or unlawful.

Advantage and Disadvantage of Common Law

Advantages

  1. The most important advantage of a common law system is that there is a certainty, it is highly possible that cases of a similar nature if confronted in the future, would be decided in the same manner as they are decided in the present.
  2. In the 19th-century common law courts were combined with equity courts by doing defects in the common law system were also reduced. Equity was not a complete system of law but it was present to cover the defects  in the common law.
  3. In common law system judgments are given on the basis of previously decided cases which means that the decision which pronounced is more efficient.
  4. The common law system is based upon precedents which means that laws applied in common law system the judge made judges are considered to be the lawgivers so it seems appropriate that those who have the knowledge about laws should make and decide which law is to be applied in which case.

Disadvantage

  1. One disadvantage of the common law system is that if the judgment given in the past is erroneous or wrong it will set a wrong precedent for the judges to decide the future cases.
  2. Sometimes strict application of common law may not render justice as it does not take into account the concept of equity.
  3. the law system is based upon precedent,  it is not necessary that for every case there is a  decided case with similar facts or similar situation, in that case, it is difficult to apply common law.
  4. Common law is not flexible therefore the law cannot be changed according to the changing needs of the society.
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Evolution of common law(11th Century-20th Century)

11th Century Common Law

Before the institutional stability was imposed on England in 1066, English residents, like those of many other societies were governed by unwritten local customs that varied from community to community and were generally enforced in an arbitrary fashion. For example, courts consisted of informal public assemblies that weighed conflicting claims in a case, if they were unable to reach a conclusion, then the accused had to go through a test which determined the guilt or innocence of the accused. The test generally involved either carrying a red hot iron or snatching a stone from the cauldron of boiling water.

12th Century Common Law

In 1154, Henry II became the first Plantagenet king, Henry II institutionalized common law by creating a unified system of law common to the country by elevating the local customs to the national, ending local control and peculiarities. He reinstated the jury system of citizens sworn on oath to investigate reliable criminal accusations and civil claims.

Concept of stare decisis

Henry II introduced the concept of stare decisis. Stare decisis literally means let the decision stand, under this concept if there is an already decided case similar to the present case then the judgment has to be given according to the decided case. This principle replaced the inconsistent local traditions and laws with reliable and consistent laws that were applicable to the region.

15th-century common law

During this time the concept of equity was established. Under the doctrine of equity if any person felt that some injustice has happened to him he can make an appeal in the court of chancery administered by the lord chancellor. For example, if anyone felt that the damages awarded to him through common law were insufficient then he could approach the court of equity and seek redressal.

19th-century common law

During the 19th century, the common law courts were combined with equity courts, and equity courts were superior in case there was some conflict between them.

20th-century common law

In the 20th century, some changes were made in the common law system in the united states under which different systems were established to resolve the dispute and to award compensation. The system provided relief in the form of money damages while the second system worked as a court of equity.

Countries that got influenced by the common law system

The common law constitutes the basis of the legal system of England, Wales, Northern Ireland and the United States of America Among the various Asian countries which were influenced by the common law system are India, Pakistan, Sri Lanka, Hong Kong, Malaysia, etc.

Evolution of common law system in India

  1. The application of common law in India was mainly done during the colonial period, to be precise during the rule. When the Britishers came to they brought with themselves their own system of governance as well as laws.
  2. Initially, the Britishers limited their influence to the personal laws of the Hindus and the Muslims and allowed the rest of the cases to be dealt with by the local laws, especially the criminal cases.
  3. All the criminal cases were judged by the native Muslim law until lord became the governor general and abolished the authority of the native Muslim leaders to decide the criminal cases, this was done because the native law suffered from many defects and the people did not have any faith in them.
  4. It was during the British rule that the concept of justice, equity, and good conscience was introduced, under this doctrine if there was no specific statutory law pertaining to the present  case or if the Hindu and the Muslim personal law was also quite , then the judgment was supposed to be given by applying the doctrine of justice, equity and good conscience.
  5. It literally meant what the judge considered in the particular case and gave accordingly. The application of common law in India evolved during the 19th century when certain laws were codified and proper courts were established under the charter of 1861. Before the 19th century, there was the supreme court which was established and also applied the laws of England as far as applicable to the Indian condition.
  6. Later in the 20th century when the Federal court was established it also applied the laws of England although by that time many of the laws were codified like Indian Penal Code 1862, Civil Procedure Code, 1908 but before independence common law was the major source of framing laws in India.
  7. After Independence although the Britishers left India but they left behind themselves the laws and it is normal that if a country that ruled over another country for almost 200 years, the ruled country would be affected by its laws and the same happened with India, the Constitution of India is sometimes said to be a replica of Govt of India Act, 1935.
  8. India after independence adopted the parliamentary system of government which is followed in Britain.
  9. Many of the laws that were made during the British rule still continue to exist even after independence like the Indian Contract Act, 1872, Indian Partnership Act, 1932, Sales of Goods Act, 1930, Indian Penal Code, 1862, etc.
  10. Although from time to time all these laws have been molded or amended according to the needs of the people and the change in the society,  it would not be wrong to say that the Common Law System of Britain laid the foundation of the Indian legal system.
  11. The concept of rule of law, judicial precedent and other principles of public law has been introduced in India from common law. The doctrine of precedent was introduced in the 18th century through the royal charter. The constitution of India is heavily influenced by the government of India act 1935, for example, article 141 of our constitution is similar to article 212 of the Govt of India Act, 1935 .
  12. The concept of separation of powers has been adopted from the common law. Though the Indian legal system is based on common law it has not copied all its provision word to word. Some differences can be highlighted for example, the House of Lords in England has been made bound by its own decision but the Supreme Court in India is not bound by its own decisions. Another example is, common law does not include any of the statutes or any other regulation but in India, our system is developed through the judgments along with statutory laws.

Conclusion

Finally, we could see how common law evolved in Europe and America and later it spread to other parts of the world, especially in Asia. Common law laid the foundation of many legal systems of the world and therefore served as a great impetus for the development of legal structures of many countries especially in India. Although the common law system had some defects as well when we look at the contribution made by it, its defects stand nowhere.

The legal system, propagated by the British Empire to the globe, is now prevalent worldwide. Approximately one third of the world’s population lives in common law jurisdiction or in civil war blended structures, including the United Kingdom, India, the United States (both the federal system and 49 of its 50 states), Pakistan, Nigeria, Bangladesh, Canada (both the federal system and all its regions except Quebec), Malaysia, Ghana, Australia, Sri Lanka, Hong Kong, Singapore, Burma, Ireland, Israel, New Zealand, Papua New Guinea, Jamaica, Trinidad and Tobago, Cyprus, Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Marshall Islands, Micronesia, Nauru, Palau, South Africa, Zimbabwe, Cameroon, Namibia, Liberia, Sierra Leone, Botswana, Guyana, and Fiji.

References

  1. https://www.newworldencyclopedia.org/entry/Common_law
  2. https://www.lawteacher.net/free-law-essays/administrative-law/what-is-common-law-administrative-law-essay.php

 

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