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How Common Is Common Law In India?

All legal systems have the same purpose of regulating and harmonizing the human activity within their respective societies, and in each society the legal system forms part of the culture and civilization as well as of the history and the life of its people.[1] The concept of understanding a system of law can be undertaken in three most important ways:

First, a legal system can be imagined as a conglomerate of legal norms.

Second, it can also be understood to be a system of social behavior, rules, statutes, and institutions because a great scope of possibility appears that there can be interactions between the makers, interpreters, breakers, enforcers, and compliers of the norms of law representing the essential sections of the society.

Third, legal system and social control systems can be perceived to be standing on an equal footing involving distinct grounds of social authority and power, different normative requirements and sanctions, and distinctive institutional complexes.

Thus, there are three dimensions or aspects of a legal system: (i) legal system as a normative system, (ii) legal system as a social system, and (iii) legal system as a combination of formal and non-formal norms of social control.[2]

On an outset, civil law legal system and common law legal system are two traditional categories of legal systems, but there have been other groupings of legal systems which are internally specialized in such a manner that there is a possibility of two legal systems belonging to the same group on comparing one set of their institutions, but there is a chance that they may belong in different groups of legal systems when another set of institutions is brought into comparision. For example, the comparison of Anglo-American and European private law yields three groups: a common law family, a Romanistic legal family, and a Germanic legal family[3].

For some, the "genius" of the common law is found in its "bottom up" character, as opposed to "top down" systems that characterize the civil law.[4] Ideally, the common law takes its roots from the decision of individual judicial decisions and results in the development of legislations based upon the views derived from such decisions. This is why it can be clearly stated that common law follows bottom-up approach. The "bottom up" approach seems to be having a great possibility of drawing upon the social understandings at hand and norms with reference to the legal development in that societal scenario which turns out to be more effective. The "top down" civil law system depends on a central government creating rules without the evidence from individual cases.[5]

Civil and Common Law legal system are classified on the basis of their source, juristic style and distinct structures of legal mechanism. The modern scholars of comparative law have visibly pointed out that there is a convergence of common law and civil law and has portrayed them to be so fundamentally identical that it is time to re-examine whether these two families might not better be joined as two separate divisions of a single larger group of legal systems, the Western liberal democratic legal family.[6] The name, "Western liberal democratic legal family," encompasses the modem Western conception of law and important elements of the history of common law and civil law.[7]

Civil Law takes its origins from Europe and is primarily derived from the Roman jus civile (the domestic law applicable to citizens of a State). Civil Law is codified as it derives its laws from codes, rules and general principles. The primary source from which the common law legal system originated can be traced back to the English monarchy, which was consistently concerned with the issuing of writs which were formal orders whenever there was a requirement to obtain justice.

However, such issuance of writs was not capable enough to suffice to cater to the needs of having a law in every situation. This led the formation of the courts of equity who were primarily made to hear complaints and formulate suitable remedies on the basis of certain equitable principles which were inclusive of the principles of natural justice.

Beginning with its application in the seventeenth century to British subjects in small areas in certain parts of India which were known as the Company's factories, the common law of England with its statutory modifications and the doctrines of the English courts of equity has deeply coloured and influenced the laws and the system of judicial administration of a whole sub-continent inhabited by nearly four hundred million people.[8]

On having a clear glare at the Indian legal system, it is seen that it is neither entirely common nor entirely civil in nature. India focuses on judicial decisions and considers it as a source of law and it also lays equal stress on the codified law. The federal system in India exists in a normal scenario but, this same federal structure converts into a unitary form of Government in case of an emergency being declared.

In case of contracts, the primary law governing the contract is that which is mentioned in the document itself. However, the contract law governs all contracts uniformly. Hence, there is a combination of civil law system as well as common law system. The fact that the parties govern the contracts is a component of common law whereas the requirement of overall compliance with the Indian Contract Act is a characteristic of civil law.

Hence, in order to conclude, it can be conveniently arrived at that India is a Common Law country with traces of Civil Law in it. It is neither entirely civil law in nature nor entirely common law in nature. The entire analysis depicted that although India follows the theory of Common Law legal system, it has not been able to give up on the codified law that governs the nation. In India, the Constitution is supreme and it is codified and written.

This, in itself, is a proof of the fact that the primary governing law in India is codified irrespective of all other features which turn out to be derived from other sources of law. Although most of the laws in India are codified, the essential fact cannot be over-looked that such codification is flexible in nature and such flexibility gets derived from societal norms.

End-Notes:
  1. Joseph Dainow, 'The Civil Law and the Common Law: Some Points of Comparison' (1967) 15 Am J Comp L 419
  2. Prof (Dr) Khushal Vibhute & Filipos Aynalem, Legal Research Methodology (2009)
  3. Craig M Lawson, The Family Affinities of Common-Law and Civil-Law Legal Systems (1982) 6 Hastings Int'l & Comp L Rev 85
  4. Frank B. Cross, ‘Identifying the Virtues of the Common Law’ [2007] Supreme Court Economic Review , The University of Chicago Press
  5. ibid
  6. Craig M Lawson, ‘The Family Affinities of Common-Law and Civil-Law Legal Systems’ [1982] 6 Hastings Int'l & Comp L Rev 85
  7. ibid
  8. The Common Law in India, The Hamlyn Lectures, Twelfth Series, N. M. Tripathi Private Ltd.
Written By: Dr Farrukh Khan is an Advocate and Managing Partner of Law Firm- Diwan Advocates.

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