DHARMASHASTRA NATIONAL LAW

UNIVERSITY
(Session 2020-2021)
Topic

Common Law Vs. Continental Law Legal System

Submitted To: Submitted By:

Dr, Manwendra K. Tiwari Sanskrati Jain
[Associate Professor of Law] Section B
BALLB/116/20
ACKNOWLEDGEMENT
The completion of this project required counselling and assistance from many people and I’m thankful
towards them for their counselling in my project.

I would like to express my deep gratitude towards my teacher asst. professor Dr. Manwendra K. Tiwari,
who took acute interest in my project and guided me all along. I’m feeling extremely privilege to have him
as my instructor in the project. I owe my deep gratitude to the vice-chancellor Prof. Balraj Chauhan for
his valuable support throughout the project. This project helped me in gathering a lot of knowledge and
becoming more aware of things related to my topic.

I would like to extend my gratefulness to my parents and friends for their valuable support and advice.

I am making this project not only to get marks but also to enhance my knowledge. At the end I would like
to thank everyone who helped me and invested their valuable time for this project.

Sanskrati Jain
 Table of Contents
1. ACKNOWLEDGEMENT ...................................................................... 2
2. INTRODUCTION ................................................................................... 4
3. RESEARCH PROBLEM ........................................................................ 5
4. RESEARCH OBJECTIVES................................................................... 5
5. RESEARCH QUESTIONS..................................................................... 5
6. RESEARCH METHODOLOGY ........................................................... 5
7. LITERATURE REVIEW ....................................................................... 5
8. UNDERSTANDING THE CONCEPT OF THIS SYSTEMS ............. 6
• What is Common Law? .......................................................................................... 6
• Salient Features of Common Law Legal System .................................................. 6
• What is the Continental Law? ................................................................................ 6
• Salient Features of The Continental Law: ............................................................ 6
9. DISTINCTION BETWEEN COMMON LAW AND
CONTINENTAL LAW LEGAL SYSTEMS ........................................ 7
• 1. The Role of Legal Precedents............................................................................. 7
• 2. Precedents Versus Laws Codified by Legislation .............................................. 7
• 3. Legal Actions Related to Criminal Activity ....................................................... 7
• 4. Legal Actions Related to Claims of Negligence ................................................ 8
• 5. Judicial Decisions in General ............................................................................ 8
• 6. Contracts and The Laws Governing Them ........................................................ 8
10. HISTORICAL EVOLUTION OF INDIA AS A COMMON LAW
COUNTRY ............................................................................................... 9
• Post-colonial Indian Legal Development ............................................................ 11
11. ESSENCE OF COMMON LAW LEGAL SYSTEM IN INDIAN
LEGAL FRAMEWORK ...................................................................... 12
12. CONCLUSION & SUGGESTIONS .................................................... 14
13. BIBLIOGRAPHY.................................................................................. 16
INTRODUCTION
Though the goal of both the legal system is same but the means to achieve them are different. In comparative
law 1, there are many situations where the same legal term has different meanings, or where different legal
terms have same legal effect. This can often lead to an uncertain situation to both lawyers and their clients.
This situation of incertitude most often occurs when civil lawyers have to deal with common law, or vice
versa, when common law lawyers deal with civil law issues. While there are many challenges which are
faced with in the same way by the civil law and common law systems, there remain also significant
differences between these two legal systems related to legal structure, classification, fundamental concepts,
terminology, etc.

This project will not only deal with theoretical examination of differences between the common law and
the civil law, but will also focus on various characteristics of civil law and common law, with several
illustrations of resulting of proceeding differences in both substantive law and procedural law. There are
many differences between these legal systems that can’t be dealt with in this short study of limited scope
as this one. Even the books on comparative law which have substantively examined the differences between
the civil law and the common law could not cover all those differences. Any venture into make a selection
of differences between the civil law and the common law on the basis of their importance would be arduous.
Hence, this project will review only several typical examples of differences between the civil law and the
common law. These differences will not be examined in detail as they should serve only as illustration of
those differences.

The scope of this project will be mainly focused on the civil law issues and will not deal with other areas
of law. In order to highlight distinctive attributes of common law system and civil law system, some
important differences have been examined. This paper will also delve into the historical evolution of India
as a Common Law country and examine how India’s legal system, as it looks today, came to be like this. It
has also been tried to throw some light on the pros and cons of both legal systems. It also put forth the
essence of common law legal system in Indian legal framework.

This project is a small try to understand the concepts of civil and common law legal systems precisely. The
role legal systems play is simple yet powerful. They provide a forum where disputes can be handled in a
non-violent manner according to rules we refer to as due process. Legal systems are part of every nation
today, hence becomes important to understand these concepts. Legal systems are how we manage human
affairs and maintain order in our societies and regulate commerce. Contrary to common understanding, “the
law” is not a high moral code of conduct. It is instead the minimum standard of acceptable conduct
permitted in any given society. However, those in power have a way of shifting “the law” to serve their
own interests and imposing it on others. This usually results in the accumulation of wealth in the hands of
a few. This is the Golden Rule: He who has the gold, rules. And, in our puritanical American society, this
is often paired with the use of religion as a sword instead of a shield. Of course, none of this is new. What
has been will be again, what has been done will be done again; there is nothing new under the sun.

The purpose of this system is to enable each person to have joy if they so choose. No individual has any
right to enjoy something they haven't created. Each person would be encouraged to realize they should put
forth effort to gain something and enjoy it. The point is that to keep order in our ever-growing society. I
mean, we can’t just let murders stay on the street. The system is to make everyone feel safe so we can sleep
good at night, protect our children as well as ourselves and protect our homes and property that we still
make payments too. If we didn’t have this system, this world would be in a bigger mess than it already is.

1
Comparative law is the study of differences and similarities between the law (legal systems) of different countries.
RESEARCH PROBLEM
Legal systems affect the country even at the grassroot level so the problem here to is to know how this
common law legal system can be improved in India.

RESEARCH OBJECTIVES
• To understand what are these two types of legal systems.
• To evaluate the India’s journey as a common law country.
• To identify how the common law legal system is different from continental law legal system.

RESEARCH QUESTIONS
• How India evolved as a common law country pre- and post-independence?
• How our legal system can be improved?
• How the common law nations adhere to innate human rights norm (India in particular)?

RESEARCH METHODOLOGY
Doctrinal research also known as, theory-testing or knowledge building research has been done to shape
the project. The research was done mainly by e-resources. A lot of research has already been conducted on
the same topic. There is no field work required here. For my research work the data has been collected from
various databases, and newspaper articles from The Hindu, The Indian Express was taken. With the help
of internet various books’ summary and their excerpts were read. Various materials that are available on e-
sources have been critically analyzed and the similar ideas have been put forward in the project. The
primary as well as secondary documentary sources are utilized to make the study up-to-date, orderly and
scientific. Various reports, books, articles, journals, judicial decision, website, international, constitutional
norms and national measures will be taken as important research tools. Besides these methods, some other
methods will also be applied according to the need of the study.

LITERATURE REVIEW
This project cannot be possible without going through literature available on the topic under study. Before
starting up the work on the problem the present study aims to review the existing literature on the subject.
The review of the existing literature would provide clarity of concept, Introductory understanding of
different aspects, and would help in identifying problem zones.
“The Common Law in India” by “M. C. Setalvad” (Padma Vibhushan, Attorney-General of India), 1960.
The book firstly outlined how the common law system rose or evolved into Indian state. Then the book
delves into how a common law country looks into the matters related to the criminal as well as civil cases
and discusses upon them in detail. It further also. delineates how the Indian constitution enshrines the
features of common law legal system
“The Common Law Tradition: Deciding Appeals” by “Karl Llewellyn”, a legal realist whose views on
jurisprudence were influential and sometimes controversial, was also one of the leading teachers of
fundamental legal thought. He took seriously the functions of courts, the use of precedent, and the power
of rules. In this important and famous book, he laid bare these jurisprudential tools, in support of appellate
court thinking at all levels in the legal system. Legal analysis is so clearly picked apart that this work has
served as a toolkit for judicial thinking -- and persuasive argument to courts -- since it was first published
in 1960. And his invaluable appendices show in detail how arguments and judicial expressions can be
turned around to the advocate's advantage. This book is the culmination of a lifetime of analysis of legal
thought from one of the legal system's most important legends.
UNDERSTANDING THE CONCEPT OF THIS SYSTEMS
What is Common Law?
Common law is judge-made law. Common law is a feature of most countries previously colonized by Great
Britain, where it originated. In a common-law system, when an appellate court hears cases and writes
opinions, rules of law are created, formed, and shaped. After a particular legal issue has been decided in a
jurisdiction, there is a high probability that subsequent cases that present the same legal issue will use the
same rule of law generated from already-decided cases regarding the same legal issue. This policy is known
as stare decisis, or “let the decision stand.” This is how a precedent is formed, though precedents may shift
or change over time. Precedents also may be entirely overturned, though that is rare. Precedents and stare
decisis allow us to anticipate the behaviour of others and to gauge the legality of our own actions. 2

Salient Features of Common Law Legal System:

• There is not always a written constitution or codified laws;
• Judicial decisions are binding – decisions of the highest court can generally only be overturned by
that same court or through legislation;
• Extensive freedom of contract - few provisions are implied into the contract by law (although
provisions seeking to protect private consumers may be implied);
• Generally, everything is permitted that is not expressly prohibited by law.

What is the Continental Law?

Continental law systems, also called civil or Romano-Germanic legal systems, are found on all continents
and cover about 60% of the world. They are based on concepts, categories, and rules derived from Roman
law, with some influence of canon law 3, sometimes largely supplemented or modified by local custom or
culture. The civil law tradition, though secularized over the centuries and placing more focus on individual
freedom, promotes cooperation between human beings.

In their technical, narrow sense, the words civil law describes the law that pertains to persons, things, and
relationships that develop among them, excluding not only criminal law but also commercial law, labour
law, etc. Codification took place in most civil law countries, with the French Code civil and the German
BGB being the most influential civil codes. 4

Salient Features of The Continental Law:

• Clear expression of rights and duties, so that remedies are self-evident.
• Simplicity and accessibility to the citizen, at least in those jurisdictions where it is codified.
• Advance disclosure of rules, silence in the code to be filled based on equity, general principles, and
the spirit of the law.
• Richly developed and to some extent transnational academic doctrine inspiring the legislature and
the judiciary.

2
https://courses.lumenlearning.com/masterybusinesslaw/chapter/what-is-common-law/
3
Canon law is the system of laws and legal principles made and enforced by the Church's hierarchical authorities to regulate its
external organization and government and to order and direct the activities of Catholics toward the mission of the Church.
4
https://www.law.lsu.edu/clo/civil-law-online/what-is-the-civil-law/
DISTINCTION BETWEEN COMMON LAW AND CONTINENTAL LAW LEGAL
SYSTEMS
1. The Role of Legal Precedents
This difference has to do with the process of putting legal precedents. This is a feature that is correlated to
common law. The goal is to evaluate a case in view of what occurred and how those actions relate to laws
that are already in force. Attorneys will contend for or against the bearing of one or more precedents while
pleading their cases. They may also institute recognized legal scholars into the proceedings as an
explanation of promoting a specific precedent and its relevance to the case at hand, although the influence
of legal scholars is somewhat shallow. The court may or may not consider a specific precedent as being
relevant to the case. If the court does determine that it's related, the outcome of the present case may be
applied to similar cases in the future.

Continental law legal system has no such bearing related to legal precedents in their legal system. Unlike
the common law systems, civil law jurisdictions do not adopt a stare decisis 5 principle in adjudication. In
deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past
decisions into account when there is a sufficient level of consistency in case law. Generally speaking, when
uniform case law develops, courts treat precedents as a source of “soft” law, taking them into account when
reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive 6 force
of case law. 7

2. Precedents Versus Laws Codified by Legislation

While some laws are enacted based on past court rulings, it's also possible for laws to come into being using
the legislative process. This is where the concept of civil law comes into play. Elected or appointed
representatives prepare, assess, and ultimately vote on whether a new law will be passed and considered
binding in the future. This results in a written constitution of laws that apply to everyone living within that
jurisdiction. This is generally considered a characteristic of civil law and leaves much less room for
interpretation. In a civil case, the role of the lawyer is to protect the rights of his or her client, either by
offering a prosecution or a defense. Civil law has to do with legal actions that are not considered criminal
in and of themselves. However, it's sometimes possible to file a civil action against an individual or an
entity after a criminal conviction takes place, or even if the attempt at criminal prosecution is not successful.

Common law immanent from institutionalized opinions and interpretations from judicial authorities and
public juries. Similar to civil law, the ultimate goal of common law is to establish consistent outcomes by
applying the same standards of interpretation. In some instances, precedent depends on the case-by-case
traditions of individual jurisdictions. As a result, elements of common law may differ between districts.

3. Legal Actions Related to Criminal Activity

Aspects of common law govern actions that are defined as crimes by present laws. This would subsume
cases where assault, theft, murder, or other actions presently considered crimes are the focus. The ruling in
the case is based on whether or not the emphasis of evidence indicates guilt. The deciding party in a criminal
case may be a judge or a jury. Based on the verdict rendered by the jury, the judge will then pass sentence
based on past legal precedents.

5
Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare
decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow
legal precedents set by previous decisions. Stare Decisis is a Latin word that means‘let the decision stand’.
6
Precedent which a judge is not obliged to follow, but is of importance in reaching a judgment, as opposed to a
binding precedent.
7
https://www.lowtax.net/articles/Seven-Key-Differences-Between-Common-Law-And-Civil-Law-595505.html
Within common law, judicial actions are considered binding 8. That's because they are made based on
precedent, the ability to present reasonable doubt or not, and in many countries a presumption of innocence 9
unless it's possible to prove otherwise.

4. Legal Actions Related to Claims of Negligence

Civil law comes into play when there are claims of negligence or other injuries that are not relevant to
alleged criminal activities. This could include cases that involve personal injury, damage to property, or
other negative effects that occur due to the intentional or unintentional negligent actions allegedly taken by
the accused.

With civil cases, the outcome focuses solely on the plaintiff and the defendant. For example, if there's a
dispute about the terms governing an offshore term deposit account, the court's ruling will only affect the
bank where the account is established and the account holder. That outcome does not impact any third party.
It's true that the outcome could create the grounds for new judicial or legislative action that results in a law.
However, the award granted, or decision made by the court only applies to this specific case and does not
establish specific punitive damages for any future cases.

5. Judicial Decisions in General

Judges and courts in many nations make decisions or pass judgments based on a variety of factors. Those
who function within the realm of the criminal courts rely heavily on the binding actions of past criminal
courts. They are also sworn to uphold current criminal laws. The same court or a higher court may overturn
the decision. There is also some potential for the decision to be overturned by legislation.

Within a civil court, precedents do carry some weight, as do the opinions of legal scholars. What's different
is the judge is not necessarily bound to follow a narrow interpretation of current laws. The focus is more
on how those laws apply in the case at hand. In rendering a decision, the court may establish the groundwork
for eventually altering, expanding, or otherwise changing a law that has been in effect for some time. There
is also often an appeal process that makes it possible for another court to review and possibly reverse the
lower court's decision.

To sum up the differences, common law does not necessarily rely on codified laws or a written constitution.
Civil law is typically codified within current laws or within a constitution.

Common law often focuses on alleged criminal activity, while civil law is more likely to deal with damages
or injuries related to negligence. Decisions within common law are considered binding in general, while
the decisions in a civil case apply to that case only.

6. Contracts and The Laws Governing Them

Contracts may also serve as the basis for a criminal or civil case. In general, common law applies when the
terms of agreement or contract are subject to private laws. There are usually few provisions implied by law
within those agreements. The terms are usually specific.

With a contract that includes a wider range of implied provisions rather than expressed provisions, settling
a dispute is more likely to involve pursuing a civil case. Much depends on how the court believes those
provisions align with the implied application of current laws. This can be especially helpful to understand
if you're pursing a case that involves some sort of offshore account, since a review of financial laws and
how they apply to the contract will be indispensable.

8
imposing an obligation or duty.
9
the legal principle that one is considered "innocent until proven guilty".
HISTORICAL EVOLUTION OF INDIA AS A COMMON LAW COUNTRY
The development of a modern legal system and the implementation of the common law have long been
noted as benefits of British colonisation. The expansion of the British Empire during the eighteenth and
nineteenth centuries led to the transplantation of the common law throughout the world. In every democratic
country law is dynamic and the process of legal development is interesting and worthy of investigation.

The year 1608 marked the first British contact with India as the young but powerful British East India
Company (BEIC) established its first trading route with the subcontinent. The Company began trading at
the port city of Surat, on the north-western coast of the subcontinent, and set up trading posts along the
Western and Eastern coasts of India. It became a ruling entity after it won the Battle of Plassey in 1757
against the Nawab of Bengal and established control of Bengal. The Company was given authority by
Parliament to administer the Indian territory, to buy land, tax and set up trading posts. In 1773, the
Regulating Act put the Company under the super-vision of a British government employee, the Governor-
General.

English common law was first introduced in India in 1727 with the establishment of courts at three
settlements in Madras, Bombay and Bengal. The English courts were instituted to correct some of the
‘injustices’ of Company rule (Unknown, c. 1780) and to adjudicate disputes among British subjects in these
settlements. The Company controlled the administration of justice in the interior, but it did not resolve
disputes using the common law – as the Company was still officially a ‘trading’ rather than a governing
entity. Even after 1727 common law courts did not spread quickly throughout the colony due to the fact
that the common law was applied only to British citizens.

During the early years of the common law in India the institution clearly did not work with the effectiveness
and adaptability that are considered to be its strengths. This was both a result of the inconsistency of its
application (across areas and peoples) as well as the lack of interest on the part of the Company. Common
law originally applied only to English citizens and those charged by English citizens in common law courts.
An Indian could have a complaint lodged against him in a court 1,000 miles away simply because there
were only three common law courts in the country. When this happened, he was subject to the rigour of the
common law, though he would not have been if an Indian charged him with an offence (Banerjee, 1984:
20–25)

Instead of framing a new Code of Laws for this new Institution, the English Laws are introduced to their
full Extent, and with all Consequences; without any Reflection or Modification whatever, to accommodate
them to the climate and Manners of Asia; without any Regard to religious institutions or local Habits, or to
the Influence of other Laws handed down from the remotest Antiquity and fixed in the Hearts of the People:
Without any Latitude allowed to the Magistrate to relax, compress or change their Application, according
to the Exigency of these Circumstances, upon a more attentive Observation of them: But all are transplanted
entire to the opposite Quarter of the Globe, to be administered by Judges educated under them, and wholly
unacquainted with the Religion, Character, or Manners of the People over whom they were to preside.
(Unknown, c. 1780: 4) Rather than the common law immediately beginning the process of adaptation
during the Company period, there was an era in which the common law was transplanted and administered
in a rigid form that did not lend itself to the evolutionary process so desirable in the common law. This was
a result of its limited application and the lack of will on the part of the BEIC. The Company was not as
concerned with developing deeply rooted judicial institutions as they were with keeping order. The first
three established courts in India were created at the order of the British Parliament to correct and control
Company abuses.
Company rule continued in India until the Sepoy Rebellion of 1857. The Rebellion brought to the fore the
‘dangers arising from the entire exclusion of Indians from the legislation of the country’ (Banerjee, 1984:
140). It also clarified to British parliamentarians that administration of the Indian subcontinent needed to
be more formalised and directly controlled by the British government and civil service. In 1858 India was
therefore declared a crown colony. 10

The switch from Company-administered territory to crown colony tailed a substantial shift in the
administration of the colony in England, but little change on the sub-continent. India was from that point
forward governed directly by Parliament with responsibility for Indian affairs entrusted to a cabinet
minister, the Secretary of State for India. In India itself the Governor-General, also called the Viceroy,
remained as the leading administrator. By this point the Company was already in decline; 11 it gradually lost
both commercial and political control, finally having its commercial monopoly broken in 1813. By 1834
the Company was merely a managing agency of India for the British government. The BEIC ceased to exist
as a legal entity in 1873.

The control of India under Company rule had been conceived as a trusteeship in which the British would
hold the territory ‘in trust’ for the Indians until the time at which they were deemed prepared to take over
their own governance. Thomas Munro, an assistant to the Governor-General of India, in 1824 reported that
the people of India:

Shall in some future age have abandoned most of their superstitions and prejudices and become sufficiently
enlightened to frame a regular government for themselves, and to conduct and preserve it. Whenever a time
shall arrive, it will probably be best for both countries that the British control over India should be gradually
withdrawn. (Coupland, 1944: 18)

This is just one example of what was a frequently articulated paradigm of rule. Later, Lord Macaulay
defending the Charter Bill of 1833 to the House of Commons noted that through this trusteeship it was
hoped that Indian political institutions would develop along the British model and at some point, Indians
would see the benefit of these institutions and retain them as their own:

The destinies of our Indian empire are covered in thick darkness. It may be that the public mind of India
may expand under our system till it has outgrown that system; that by good government we may educate
our subjects into a capacity for better government; that, having become instructed in European knowledge,
they may in some future age demand European institutions. Whether such a day will ever come I know not.
But never will I attempt to avert or retard it. Whenever it comes, it will be the proudest day in English
history. (Coupland, 1944: 20)

Transplanting British political institutions was one of the fundamental directives in administering India.
Once the status of India as a colony was determined in 1858 a succession of law commissions met and
developed procedural and legal codes that embodied the fundamental features of English common law.
Macaulay, quoted above, was the chairman of the first law commission. When Company rule ended and

10
The Mutiny was interesting both from the standpoint of the precipitating political circumstances, described above, and for
the tipping event that led to the violence. Discontent ignited into violence with rumours that the Enfield Rifle cartridges which
were used by Sepoys were packed in animal fat. Since it was necessary to bite off the end of the cartridge before loading it into
the rifle, the assertion that the cartridges were packed in animal fat was repulsive to both Hindus, who do not eat beef products,
and Muslims, who do not eat pork products.
11
The Regulating Act of 1773, which put in place the first Governor-General, and Pitt’s India Act of 1784, put political policy
under British government control through a regulatory board responsible to Parliament.
official colonial status began, the first evidence of the adaptation of the common law surfaced in the form
of Indian advocates and pleaders present in the courts to consider issues of Islamic or Hindu law. 12

Legal decisions and statutes particular to India proliferated through the 1800s (Mantri, 1902). There are
compiled books of Indian laws and procedures that totalled 500 pages by the beginning of the twentieth
century. Moreover, by the same time there was also an active engagement of Indians in the legal profession
either as vakils, indigenous pleaders who were able to bring cases, or as lawyers who had been educated
overseas and served in an official capacity as litigators or on the bench (Henderson, c. 1960). No positions
were held solely for British officials. An Indian with qualifications could aspire to a position in the colonial
civil service and by the early 1900s the process of ‘Indianisation’ brought many Indians into the governing
structures of the colony, including the judiciary. 13

India was undergoing many changes in the early 1900s as the independence movement began to gain
momentum. Key players in the independence movement were lawyers trained in England and practising in
India, such as Nehru and Gandhi. 14 The Indian National Congress led the pursuit of independence and
transformed into a political party which controlled the government in India from independence until 1977. 15

At independence in 1947 the Indian government established a Constituent Assembly to write the
constitution, which came into force in 1950. The constitution enshrined the common law. There was never
really any question that it would not do so, as by 1947 there was a long history of the application of the
common law in India, not just by British colonial officials, but by Indians themselves in their official
capacities as employees of the state. The legal structure established by the constitution of India is based on
precedent, with the Supreme Court serving both as an appellate court and as the court of first instance for
disputes between the states and the Union. During the colonial era both Hindu and Muslim law governed
personal status issues such as divorce and inheritance. At independence much of the Hindu law was codified
(Ramakrishnan, 2003). The Muslim law was not. 16

Thus, with independence, India adopted the colonial judicial procedure and at the same time made
legislative changes in the body of law that would make it more ‘Indian’ and less ‘British’.

Post-colonial Indian Legal Development

There is no question that the common law has taken root in India and flourished in a way that demonstrates
its most positive evolutionary qualities, reflecting the will of citizens and not just the ‘desires and ideals of
the man of systems’ (Yandle, 1991: 229). Since independence, India has changed its judicial system, within
the bounds of the common law, in ways that make the system quite different from common law practised
in England and America. One might argue that this is further proof of the evolutionary and adaptive nature
of the common law. For instance, the jury system was eliminated in India in 1960. 17 This radical change

12
By 1793, there were Indian advocates or pleaders established in the common law courts in India in order to consult with the
British legal professionals on issues of religious law.
13
In 1916 Sir Alan Henderson, Kt. Indian Colonial Service (ICS), 1886 –1963 recalls being at a trial of a terrorist in which the
accused was represented by a ‘leading Indian barrister’ (Henderson, c. 1960: 65).
14
Although Gandhi practised law only briefly in India before leaving the country to represent Indians living in South Africa. It
was in South Africa that Gandhi first developed his techniques of civil disobedience or satyagraha.
15
At which point Indira Gandhi, Nehru’s daughter, lost an election which brought an end to the state of emergency she had
declared. The state of emergency effectively suspended the democratic institutions of India for 18 months.
16
No doubt, this was due to the political tensions at the time that led to the separation of the territory of the colony of India into
the two independent states, India and Pakistan, based on religious differences. At independence, India was conceived of as a
secular state with a majority of Hindus and Pakistan as an Islamic state, although Islamic (never sharia) law was not instituted
in Pakistan until 1993.

The idea of a jury of peers deciding on a court case is something that seemed alien to Indian culture when it was first introduced.
17

George Campbell in 1852 noted that although Indians were comfortable with the panchayat system of peer arbitration in which
came largely as a result of the notorious Nanavati case in which a Parsi Navy commander murdered a Sindhi
businessman who had a habit of seducing the wives of military officers. A jury acquitted Commander
Nanavati because of public sympathy, in spite of overwhelming evidence against him and a confession.
The verdict was repealed by a judge and Nanavati was found guilty on appeal. 18 Government officials were
so upset by the unreliability and biased nature of the jurors in this case that trial by jury was abolished (Roy,
2002; Gressor, 2003; Sharma, 2004). The abolition of the jury system is but one example of the ways in
which the common law has been adapted to the Indian context. 19 There has also been a proliferation of both
legal decisions and legislation that has created a unique and dynamic legal system in India.

India provides an interesting and ultimately successful case study of the transplantation and adaptation of
the common law. Common law was first imposed in the conquered areas of India in 1727. Two hundred
and twenty-three years later the common law became the foundation of the independent state. That 223-
year period began with a body of law rigidly and inconsistently applied by English judges on a conquered
people and ended with a body of law suited to its context. 20 Moreover by the middle of the colonial period
the common law was being used by Indian lawyers arguing cases for their Indian clients before Indian
judges. Banerjee (1984: 251) notes that in 1836 ‘out of 1,12,380 [sic] civil suits in the “Lower Provinces”,
only 6,893 were tried by European judges and 1,05,487 [sic] by Indian officers’. Given the number of
Indians involved in the legal system from such an early date, it is no surprise that legal development in
India maintained this trajectory of adaptation after independence. 21

ESSENCE OF COMMON LAW LEGAL SYSTEM IN INDIAN LEGAL

FRAMEWORK
India became an independent democratic republic in 1947 and its constitution, which came into force on
26th November 1949, is the supreme law. The Constitution of India is the bulkiest in the world and a product
of the aspirations of the people. It is not a parliamentary creation but “of the people, by the people, and for
the people,” qualifying it as the largest democracy in the world. The Preamble to the Constitution
establishes India as a “Sovereign, Socialist, Democratic Republic.” India has a common law legal system
whose infrastructure bears the influence of British colonial rule. The constitution is based on
the Government of India Act 1935 passed by British Parliament. The Indian constitution lays out a federal
Union of 28 States, 8 union territories and 1 national capital territory. The Union and States have separate
executive and legislative branches, whereas the territories are ruled by the national government. Law
generated by the Union is superior to that of the States, as we are quasi-federal. 22 The Indian Constitution is
federal in nature, but unitary in spirit.

In a parliamentary democracy, there is an inter-dependency between the executive and the legislature. The
Judiciary enjoys an independent status. The Indian Constitution provides for a bicameral parliament
whereby the Parliament comprises two houses; The Rajya Sabha (Council of States) and the Lok Sabha

each side chose their own representatives, it was nearly impossible to get people to voluntarily serve on a jury and jurors, once
compelled to serve, would try to defer to the opinions of the judge (Banerjee, 1984: 71).
18
Kawas Nanavati served three years in prison before he received a pardon. He and his wife and children then left for Canada
and never returned to India
19
Interestingly, some scholars have noted the importance of jury trials in distinguishing common law and civil law systems
historically (Glaeser & Shleifer, 2002). Since both Kenya and India rejected the use of jury trials within their common law
systems, one wonders whether one could make the same point in the contemporary period.
20
Indeed, some would argue that the law was almost too developed as India has a proliferation of laws, some of which have
become so outdated that they are no longer in use. By one estimate only 40% of India’s laws are in regular use (Redundant
Laws,(2004)
21
Joireman, Sandra. (2006). The Evolution of the Common Law: Legal Development in Kenya and India. Journal of
Commonwealth and Comparative Politics. 41. 10.1080/14662040600831636.
22
Term coined by Sir A.V. Dicey meaning an intermediate having features of both unitary and federal government. We have a
federal structure with more powers to union government.
(House of the People). At the state level as well, the legislature has two houses; Vidhan Sabha (Legislative
Assembly) and Vidhan Parishad (Legislative Council). Indian Judicial System does not come under the
control of either the legislature or the executive. Indian Judiciary comprises a Supreme Court, High Courts
for every State, District Courts, and other local-level subordinate courts. The Supreme Court of India is the
apex court of the country and is the custodian of the Constitution. It has the absolute power and control
over the country’s judicial administration, and its decisions are binding on the rest of Indian courts.
Independence of judiciary is basic structure of Indian constitution. 23

The modern-day legal framework of India has undergone an evolution from the ancient (unorganized) to
the colonial times wherein seeds of standardization were sown. The common law legal tradition acted as a
precursor to our constitutional design and posted independent legislative endeavours. As of today, there are
a plethora of legislative enactments having its origin traced to the Common Law legal family. A manifest
example of it would be our criminal justice system wherein the principal enactment i.e., IPC (Indian Penal
Code), is a gift from William Macaulay.

Our Constitution envisages a welfare state acting as ‘Parens Patriae.’ 24 Indian laws also adhere to the United
Nations guidelines on human rights law and environmental law. Specific international trade laws, such as
those on intellectual property, are also enforced in India.

Law-making in a democratic form of government is an exclusive domain of parliamentarians. Indian

Constitution empowers the State to make laws governing the society (Article 12). However, legislative
design is subject to adherence to constitutional principles and rights (Article 13). The State can’t make any
laws that are in derogation or violates fundamental rights.

The most prominent source of law in modern India is legislative enactments by representatives. However,
there are some other significant sources of law in India stated as below:
● Judicial Precedents
● Customs, Usages, and Tradition

Administration of the legal system in India is done by Judiciary, which is an independent organ in
democracy, and the Constitution of India expressly endorses independence of the Judiciary. The judicial
system in India is pyramidal in its hierarchy with the Supreme Court sitting at the top of the pyramid.

The provisions of part III of the Constitution which enumerates fundamental rights are more elaborate than
those of any other existing written Constitutions of the world and cover a wide range of topics. The purpose
of the fundamental rights is to act as limitations not only upon the powers of the executive but also upon
the powers of the legislature. These rights include individual rights common to most liberal democracies
such as equality before the law or the right to equality, tight to freedom of religion, right against
exploitation, cultural and educational rights, freedom of speech and expression, freedom of association and
peaceful assembly, and the right to constitutional remedies for the protection of civil rights such as habeas
corpus.

The Constitution of India was apparently intended to entrench the more permanent values cherished by the
society, particularly in its part III. The founding fathers wanted the Constitution to be an adaptable
document rather than a rigid framework for governance. Hence Parliament was invested with the power
under article 368 to amend the Constitution. However, with the intention of preserving the original ideals

23
See S.P. Gupta v. Union of India (1981) Supp SCC 87 at 223 and Shri Kumar Padma Prasad v. Union of Indian (1992) 2
SCC 428 at 446
24
A doctrine that grants the inherent power and authority of the state to protect persons who are legally unable to act on their
own behalf.
envisioned by the Constitution makers, the Supreme Court in Kesavanand Bharati v. State of Kerala 25 held
that Parliament could not distort, damage or alter the essential features or the 'basic structure' of the
Constitution under the pretext of amending it. The enunciation of this doctrine can be said to be an attempt
to preserve the spirit of the rule of law from the otherwise unlimited power of Parliament to amend the
Constitution. Thus, Parliament's power to amend the Constitution is not absolute and the Supreme Court is
the final arbiter over and interpreter of all constitutional amendments. Since what constitutes 'basic
structure' is not spelt out in the Constitution, the features that constitute the same cannot be laid down until
another authoritative pronouncement is rendered by the apex court. However, it can be said that the
sovereign, democratic and secular character of the polity, rule of law, independence of the judiciary,
fundamental rights of citizens, etc. are some of the essential features of the Constitution.

Whenever statute law is absent, the judges, according to many state statutes, are to be guided in deciding
cases by principles of "justice, equity and good conscience". Initially this expression was construed by the
judges to mean the rules of the common law except in so far as any particular rule was unsuitable for being
applied to Indian conditions. The judges have felt free in scrutinizing the common law rules in their
application in India. Certain archaic or unjust doctrines such as actio personalis moritur cum persona (a
personal action dies with the person) or the doctrine of common employment protecting the employer from
liability in tort to an employee for the fault of another employee, have been rejected by Indian judges as
being inapplicable to Indian conditions. It would appear that "justice, equity and good conscience" should
provide a strong basis to the law courts in India to decide cases not covered by statutes in constructive spirit
to find out just solutions of new problems of law which are ever arising in the law courts. The statutes
expressly empower the judges to act on these principles. These principles are, therefore, expressly made
enforceable by the law courts. It may be further suggested that the preamble and the directive principles of
the Constitution have also to be borne in mind by the law courts as the sources of the principles and policies
which may be drawn upon by the judges in deciding cases. They may either act as substantive sources of
judicial law-making 26 or may guide the construction of statutes when more than one construction is
possible.

Since our independence our legal system as a system of any standard common law countries. But still there
is a long way ahead, and our system is still in nascenting stage of adapting changes so we should try improve
as rapidly as we can. There should be an activism not only in judiciary but in all the organs of the state i.e.,
legislature and executive. All the organs should work towards building a new and progressive India and
fulfilling the ideals of constitution to materialize the dream of constitution makers. Moreover, they should
maintain a harmonious relation among themselves and shouldn’t try to transgress their boundaries by
interfering into the sphere of one another.

CONCLUSION & SUGGESTIONS

The examination of common law and civil law reveals that there are more similarities than differences
between these two legal systems. Despite very difference legal cultures, processes and institutions, common
law and civil law have displayed a remarkable convergence in their treatment of most legal issues.

Under the contemporary pressure of globalisation, modern civil law and common law systems show several
signs of convergence. Many of the differences that used to exist between the civil law and common law
systems are now much less visible due to changes which have occurred both in common law and civil law.
In the common law, regulatory law has achieved a greater importance leaving less room for the courts,
while in the civil law, the role of the courts, in creation of law has greatly increased. As a result of these

25
(1973) 4 SCC 225
26
E.g., as in R. R. Dalavai v. State of Tamil Nadu (1976) 3 SCC 748
processes going to opposite directions, many of the differences between common law and civil law look
now more like nuances rather than major differences.

The differences which exist between civil law and common law should not be exaggerated. It is also
important to note that differences on many issues exist both among civil law and among common law
countries. The differences between civil law and common law systems are more in styles of argumentation
and methodology than in the content of legal norms. By using different means. Both civil law and common
law are aimed at the same goal and similar results are often obtained by different reasoning. The fact that
common law and civil law, despite the use of different means arrive at the same or similar solutions is not
surprising, as the subject-matter of the legal regulation and the basic values in both legal systems are more
or less the same. Aim of this paper was to bring out the significance and importance of each legal system
and to decode the legal/law making mechanism of both civil law and common law and how different
countries across the globe are conducting their legal systems parallel to each other, yet with different
approaches at Bar & Bench.

While comparing legislation with common law, it can be concluded that statutes generally have the power
to change the established common law, but the common law cannot overrule or change statutes. A statute
can only be amended or overruled by a later and a separate statute. This relationship reflects the legal &
political doctrine of – parliamentary sovereignty- the recognition & acceptance that Parliament is the
supreme law-making body of the land though, such an authority may not be absolute and it may be limited
by some other exercises. Nevertheless, save for these possible limits in extreme circumstances the judges
must normally apply statutes, even if they are contrary to the established common law.

The legal system in India has drastically changed since colonial times. There are criticisms directed towards
the existing legal framework as not responding to the challenge of contemporary society and with its
identification as a Common Law legal system. However, Judicial activism has resulted in liberal
interpretation. Though our legal system has evolved but there are various loopholes and chances of
betterment remains for example non justiciability of DPSPs 27, non-enforcement of uniform civil code 28,
non-accountableness on not performing your own fundamental duties 29 etc.

So, from the research I conclude that even though the Indian Legal System is based upon the structure of
common law, but at the present time legislation or the statutory law have more influence and it prevails
case law.

27
Part IV of Constitution from article 36 to 51
28
Article 44 “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
29
Part IVA of Constitution under article 51A brought in by 42nd Constitutional Amendment Act, 1976. Currently we have 11
fundamental duties.
BIBLIOGRAPHY
Research Papers:

• Civil Law and Common Law: Two Different Paths Leading to The Same Goal by Dr. sc. Caslav
Pejovic (27 November 2000)
• Continental Law and Common Law: Historical Strangers or Companions? by R.H. Helmholz
(Volume 1990 December)
• A. V. Dicey, Law and Public Opinion in England, Macmillan, London, 1962.
• O. W. Holmes, The Common Law, Light & Life, New Delhi, 1975

Newspaper:
• Indian Express
• The Hindu
• Hindustan Times
• Times of India
• The Wire
• The Print

Articles:
• Banerjee, A. C. (1984) English Law in India (Atlantic Highlands, NJ: Humanities Press Inc.).
• Joireman, S. F. (2004) Colonization and the rule of law: comparing the effectiveness of common
law and civil law countries, Constitutional Political Economy, 15(4), 315–338.

Online websites:

• https://courses.lumenlearning.com/masterybusinesslaw/chapter/what-is-common-law/
• https://www.law.lsu.edu/clo/civil-law-online/what-is-the-civil-law/
• https://www.tandfonline.com/doi/abs/10.1080/01440368108530737?journalCode=flgh20
• https://barbriqlts.com/common-law-vs-civil-law-an-introduction-to-the-different-legal-systems/
• https://www.legaleraonline.com/articles/evolution-of-the-indian-legal-system-2
• Description and History of Common Law
• https://www.investopedia.com/