DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

2020-2021

BASICS OF CASE LAW FINAL PROJECT REPORT

“RELEVANCE OF COMMON LAW IN THE JUDICIAL SYSYTEM”
SEMESTER I

SUBMITTED TO: SUBMITTED BY:

MS. ANKITA YADAV ANSHUMAAN JAISWAL
ASSOCIATE PROFESSOR (LAW) ENROLLMENT NO. -200101028
RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY SECTION A
SEMESTER I
BA LLB (HONS.)
 ACKNOWLEDGEMENT

I would take this opportunity to express my sincere gratitude towards my Basics of Case Law
professors Ms. Ankita Yadav and Dr. Kumar Askand Pandey for their able guidance
throughout the course of research and also for enhancing my understanding of the subject
which helped a lot to complete this project.

None the less, I would also like to thank and express my gratitude towards my friends and
family for their invaluable suggestions and constant help during the course of this project.

Thanks a lot.

Anshumaan Jaiswal
 INDEX

CONTENTS PAGE NO.

PROJECT REPORT BRIEF 4

INTRODUCTION 5

HISTORY AND EVOLUTION OF 6

CASE LAW

POSITION OF COMMON LAW IN 8

UK, USA AND INDIA

WHY IS COMMON LAW 10

RELEVANT?

BIBLIOGRAPHY 12
 PROJECT REPORT BRIEF

AIM:
The aim of this project is to study what is common law and what is the relevance of
common law in the judicial system.

RESEARCH METHODOLOGY:
The research methodology to be employed in this project is review of literature pertaining
to the same matter.

RESEARCH QUESTIONS:

 What is common law?

 What is the history of common law?
 What is the position of common law in the UK, USA and the Indian context?
 How is common law relevant to the judicial system?
 INTRODUCTION
WHAT IS COMMON LAW?

In the legal paradigm, common law also known as, precedent or judge made law or case
law, is the body of law created by judges in courts while deciding judicial matters and also
by quasi-judicial tribunals that have equal authority. The defining characteristic of “common
law” is that it arises in the form of precedent. The definition of common law as given in the
Black’s Law Dictionary in its 10th edition is "The body of law derived from judicial decisions,
rather than from statutes or constitutions [synonym CASE LAW]”. There can be said to be
two branches of common law:
First, the law that arises from the authority of the courts to specify what the law or what it
should be in the absence of a written statute or legislation pertaining to the issue at hand.
Examples of this can be said to be the entire law of torts.
And secondly, the law that arises from the court decisions or judgements that analyse and
interpret what the law made by different bodies like the legislature and executive say, like
judicial interpretation of Constitutional matters and other laws or the judicial review of rules
promulgated by the executive under its powers of subordinate legislation.

Similarly, the countries that give an importance to the common law are termed as common
law countries. According to the Black’s Law Dictionary common law systems are those that
place a great emphasis on the judicial decisions and are given the same force and
importance as is given to the legislature and executive made law. In absence of written
legislation and statutes the courts have the authority to make the laws upon the topic.
England was the first country to accept the common law system and the opposite to the
common law system is the civil law system that places greater weight on written and
codified law.

A term that commands the most importance in the common law system is precedent. A
precedent is a previously adjudged case that sets a principle or establishes a rule that has a
binding or a persuasive effect on further cases that have similar issues or circumstances. If
previously a similar dispute has been decided in the court, then it is bound to follow the
reasoning and ratio pronounced in the previous judgement. The doctrine or principle by
virtue of which precedent gets this binding power is known as the Doctrine of Stare Decisis;
which is the Latin for “to stand by things decided”. This doctrine states that a court has to
stand by the judgement that has been already pronounced by it in a similar case.

HISTORY AND EVOLUTION OF COMMON LAW

The event that is at the root of the common law system is the Norman Conquest of 1066.
Prior to the Norman conquest justice was primarily administered through local courts that
were operated by the shires, sheriffs and the hundreds. Merchant fairs administered their
own courts and large landowners also managed their own manorial courts to look after the
law and order in their own estate. Furthermore, the Catholic church also operated its own
courts to adjudicate on issues related to Canon law.
After the Norman Conquest of England in 1066, William I (William the Conqueror)
proclaimed that all rights based on land were now under the King and hence the Curia Regis
or the King’s courts were set up in the Westminster Palace which became the foundation
stone for the introduction of common law. The institution of Eyre was developed in the
King’s courts which consisted of four judges who were appointed by the King. The main
function of this institution of ‘Eyre’ was to hear cases of appeal and review the functioning
of the local county courts. Thus, this institution was used as a centralizing tool over the local
courts and provided the structural basis for the development of the common law in England.

In 1154, Henry II created a unified system of law which was "common" throughout the
country by a process of incorporation and elevation of local customs up to the national and
also reinstated the jury system which was a group of responsible citizens that were sworn to
investigate and deliver verdicts on criminal accusations and civil claims. The jury often
reached to its verdict by evaluating the facts and issues through the perspective of local
knowledge. Henry II also developed the practice of sending judges from his own court to
deliver verdicts throughout the country where these judges delivered decisions according to
their interpretation of the local customs. These judges would then after returning back to
London discuss their interpretation with other fellow judges and then the judgements would
be recorded. Through the passage of time, the rule of precedent developed which bound
the judges to follow the decisions that had been delivered previously i.e., they had to adopt
the interpretation that the earlier judge had made of the law and then apply the same
principles to the case they were adjudicating if the two cases had similar facts and issues to
each other. By this system of precedent, decisions became binding, and was replaced by an
elaborate and consistent system of law that was common throughout the whole country,
and hence the name, "common law."

History of common law in India

The common law system was brought to India with the advent of the British rule as in the
rule of British East India Company. The Charter of 1726 which was granted to the company
by King George I allowed for the establishment of Mayor courts in Madras, Bombay and
Calcutta; this was an important event in the context of coming up of common law in India as
this charter ushered the English law in the country. After the Battle of Plassey, the company
gained more territories and the Mughal law system that was previously functional was
phased out. Under the provisions of the Regulating Act of 1773, Supreme Court was set up
in Calcutta which decided disputes under the aegis of the British law. After the First War of
Independence in 1857, the company was removed from India and the territories previously
under the Company rule passed to the British crown which was the next important point in
coming of common law in the country.
During the British Raj in India the Privy Council was the highest court of appeal for India and
the lords of the House of Lords adjudicated cases in it and the decisions of the House of
Lords were binding on the Privy Council and those of the Privy Council were binding on the
courts in India.
 POSITION OF COMMON LAW IN UK, USA AND INDIA

THE UNITED KINGDOM

The United Kingdom is the cradle of the common law system and from here it spread to
other countries especially the commonwealth countries. The House of Lords which was
previously the senior most court in the territory made precedents that were binding on the
Privy Council and the House of Lords itself and all other courts in the country. In the year
1966, in the case London Tramways Co. vs London County Council, a practice statement
was issued that allowed the House of Lords to rescue itself from following its own precedent
in specific cases but did not lower the precedential value of the judgement for the lower
courts. After the setting up of the Supreme Court in 2009, it replaced the House of Lords as
the highest court in the country and now its decisions are treated as precedent.

THE UNITED STATES OF AMERICA

The United States same as many other countries is an heir to the English common law
tradition. The founding fathers of the United States by vesting judicial powers in the hands
of the Supreme Court and the Federal Courts under Article 3 of the US constitution,
inherently gave them the powers of common law courts to make precedent that was
persuasive. All states except Louisiana have enacted Reception Statutes which state that
common law is the law of the country.

All decisions of the Supreme Court which is the senior most court in the country are binding
on the Federal courts under the Doctrine of Stare Decisis.

INDIA

The British Raj introduced the concept of common law in India and it had an overreaching
impact on the Indian law scene. During the British rule, the judgements of the Privy Council
had precedential value in all courts if India. Post-independence too Privy Council
judgements had precedential value but the Indian constitution restricted it in cases only
when those judgements don’t undermine the Indian law. The Constitution of India laid
down provisions for the precedential value of judgements in Article 141 of the Constitution
which states that “Law declared by Supreme Court to be binding on all courts. The law
declared by the Supreme Court shall be binding on all courts within the territory of India”
i.e., the judgements delivered by the Supreme Court of India have a binding affect on all
courts inside the Indian territory but not on itself. Under the powers of delegated
legislation given to the judiciary the courts have made laws and rules for the country in
absence of any codified law on the subject, like for example, in the Keshavanand Bharti case
and the Maneka Gandhi case the Supreme Court laid guidelines for the proper
interpretation of the constitutional provisions and in the Vishakha case it laid down the rules
for protection of women from sexual harassment at the workplace, a subject on which no
earlier legislation had been done.
 WHY IS COMMON LAW RELEVANT?

Since the time common law has been developed it has been in a constant process of change,
better judgments, better interpretations and better principles are always on the way and
they continue to increase the importance of this system of law. Part of the genius of the
common law system is the adaptability that it provides to the process of legal development,
thus, when new circumstances arise, the judges adapt the existing rules in such a way that
they produce the best judgements in that particular circumstance so that they can produce
the best precedent. Though the above statement might make the reader feel that this
system is flimsy and lacks stability but what good does a defunct codified law hold, what is
the purpose of the codified law that now has no practical usage left and thus, this is the best
virtue of common law that it provides for laws that are best in the current or existing
scenario. Over time, new doctrines emerge and old ones may die out. But at any given time,
there is a stable rule‐set people can use to organize their lives and business activities.

The reasoning system that common law follows is the inductive pattern of reasoning i.e.,
they build on experience and observations of the real world and accumulate knowledge
about the rules that would best serve the society and since this is done through adjudicating
real-life cases, they definitely have a better understanding of what are the problems and
their better solutions. As compared to common law, legislation follows the deductive
pattern of reasoning and is based on all the knowledge that has been accrued and is
oblivious to change in circumstances.

Another point that increases the validity of common law is that legislation is bound by the
‘need to please’ people or the constituencies and thus this ‘need to please’ the
constituencies always allow well organised interests to creep into the process of legislation.
Special interest pleading is a hallmark of regulation and legislation. In total opposition to
this, judges in common law courts have none of the perverse incentives that legislators can
have and there also does not exist a ‘need to please’ certain factions or parties in the case.

As judges adjudicate on both civil and criminal matters, they also have a better capability to
make informed decisions, give rulings and develop good precedent. Civil laws like those in
the case of negligence and torts have entirely been developed from the common law and
previous rulings on the matter.

Other important advantages of common law can be termed as follows:

 Specificity

The common law expands and clarifies on the legislations. The chapters and wording of
codified laws are often very broad in usage and provide only general information of what
that law would entail. Judges play the role of examining how that particular law would
perform in a specific situation or for a specific group and also interpreting the legislation.

 Consistency

The parties and the counsels that are involved in a particular case understand that the ruling
given in their case is depending on the precedent already set and is nor arbitrary. Thus, the
doctrine of precedent works more effectively because it provides consistency and stability in
the legal system.

 Unforeseen Cases

It is not at all possible for the legislature to include the solution for every point of problem in
the legislation just like the point about specifics that was stated earlier. Thus, the common
law responds to the cases and points and situations that had not been anticipated or
worked upon by the legislature also while always providing the incentive of looking at the
problem through the real-life lens.

 Speed and Efficiency

Common law is more flexible, faster, and responsive than parliamentary law. Often,
common law reacts and responds rapidly to community expectation, changing social values
and so on. Institutional law changes bodies or parliament years so that to decide on change
need, courts and judges can do it while still reviewing one case. Because the courts are not
bound by procedural and political constraints of any legislative process, they can, therefore,
achieve law reform faster.

 Political Independence

The actions of courts and judges are not controlled or reined by the ideology of a political
party as compared to their counterparts in the legislature where it is the deciding factor.
Only because of this reason, law reforms that do not agree to the lines of the ruling party
can be implemented as there is no fear of sabotaging the chances of probably a re-election
if that action would have been brought about by the parliament. A classic and ever standing
example of this is the Keshavananda Bharti Case decided by the Supreme Court of India or
the Maneka Gandhi Case that went totally against the interests of the ruling party only
because it protected the better interests of the constitution and society at large.

 Flexibility

Case law is an outcome of continuous judicial process and thus it allows the judges to re-
shape law keeping in mind the needs of the society but at the same time precedential
authority of the judgements prevent discretionary action of a particular judge.

BIBLIOGRAPHY

 “Stare Decisis.” LII / Legal Information Institute, 2017,

www.law.cornell.edu/wex/stare_decisis.

 legal Service India. “Legislation & Common Law : Indian Legal System.” Legal Service

India, www.legalservicesindia.com/article/587/Legislation-&-Common-Law-:-Indian-

Legal-System.html

 Wikipedia contributors. “Common Law.” Wikipedia, 22 Dec. 2020,

en.wikipedia.org/wiki/Common_law.
 “5 Advantages of Common Law Legal Systems.” TQD Law, 2017, tqdlaw.com/5-

advantages-of-common-law-legal-systems.

 “Remember the Common Law.” Cato Institute, 11 Mar. 2016, www.cato.org/policy-

report/marchapril-2016/remember-common-law.

 ---. “English Law.” Wikipedia, 2 Jan. 2021, en.wikipedia.org/wiki/English_law