Deepak Rathore
Introduction and Origin
The common law system and civil law system are two broad legal systems that prevail all over the world. Both of these systems have their similarities and their differences. Despite originating in the same continent, Europe, they both developed differently due to the differences in the histories of the countries where they originated. In the countries of Western civilization, the best-known systems are the civil law and the common law, particularly as exemplified in France and England.1 The common law system that originated in England applied to the colonies of England, such as India, Malaysia, and Singapore, and the civil law system that originated in continental Europe, more specifically, in France, Spain and Portugal, applied to their colonies, such as Indochina and Indonesia.2 By the early nineteenth century, the vast majority of nations were colonized by European powers like France and England influencing not only language, religion, and cultural norms, but also legal and economic systems.3 Hence, colonization is one of the key forces behind the spread of these two legal systems all over the world. Earlier, all the legal systems, be it civil law, common law, canon law (Church), Roman law etc. coexisted, but later on, these laws were replaced by one common law system, because they were more systematic and rational. Even the countries which were never colonized started adopting these systems because of the growing political and economic influence of Western countries.
Reasons for Their Origin
The growing centralization of power in a few hands led to the demand for various natural rights to be codified. This awareness of the rights made people in eighteenth-century France support the Enlightenment movement, which was started by some prominent thinkers, known as philosophes. The Enlightenment movement centralized in Europe later led to the French and American Revolutions, and the demand for democracy, though partial, started rising.4 Ubi jus ibi remedium, which means where there is a right there, is a remedy; this remedy was protected by writs, which first originated in English law. Both of these systems are responsible for how our society functions today.
Difference Between Common Law and Civil Law
The fundamental difference between the two systems is that common law is not codified and civil law is codified. Both systems have their pros and cons. Civil law is more rigid, it has to be applied as it is. And applying the law by letter leads to injustice because we need to take into consideration the situation in which a particular wrong has been committed like in the case of Regina v. Dudley and Stephens5, the law was applied as it is. But this rigidity also brings consistency in decisions. The judges have a minimal role to play; their only work is to interpret the law. Common law is more flexible, although it is based on some scattered statutes, it is largely based on precedents, which makes the role of a judge more critical. But it also has its cons, like different judges have different opinions and they write their opinions in their long judgements, so it becomes very difficult to filter out, which part is binding (ratio decidendi) and which part is not binding (obiter dicta). This brings inconsistency in the decisions of different judges.6
Law System in India and Its Fallacies
The highest level of judiciary in India is Supreme Court, and India follows the doctrine of stare decisis vide Article 141, which means that decisions of the apex court are binding on the lower courts. Common lawyers argue that precedents bring consistency in the rulings of the court, but it is not true in reality. In reality, different benches of the Supreme Court give an inconsistent interpretations of the Constitution and laws creating confusion. Any given bench may have a slightly different interpretation of the law from that of another bench, and sometimes a starkly different one.7 The Supreme Court has the power to overturn its own decisions by setting up a larger bench and may overrule decisions that are ‘erroneous’ based on ‘changing times’.8 This flexibility in the common law makes it adherent to the changing circumstances, but in Keshav Mills Co Ltd v Commissioner of Income Tax9, the Supreme Court was warned to be cautious while over-tuning its precedents and should endeavour consistency. But this has not been followed as the upper judiciary is over-burdened with a lot of backlogs due to which a lot many smaller benches are created which gives inconsistent decisions. Rajeev Dhavan has described Indian Supreme Court judges as lacking ‘precedent consciousness’. While Upendra Baxi has noted that Supreme Court judges will misapply or simply overlook previous holdings.10 This shows a fallacy in the common law; the over-burdening of the judiciary simply results in judges ignoring their precedents. But contrary to this, there are theoretically strong precedent rules that oblige judges to at least be perceived as following the Court’s precedent.11
Role of the CJI in Mitigating the Fallacies and Biasedness
The Chief Justice has a very significant role to play here; he is the one who is responsible for constituting different benches. He can influence the outcome of a decision to a great extent by choosing only those judges on a particular bench who are like-minded or sympathetic to the issue involved in the case before them. So, there has to be a better policing system in place to keep a check on the power of the Chief Justice. The judges are given a very high degree of powers in the common law system, for example, traditionally, Supreme Court was not given that many powers that it has now, but the Supreme Court through its own, often wide, interpretation of the Constitution has subsequently provided for itself a pivotal, and frequently trumping, role in governing the rest of the judiciary.12
Conclusion
In the common law system, case laws play a primary role and statutes play a secondary role. The statutes in common law jurisdictions are not as clear as they are in civil law jurisdictions, rather statutes in the common law system have to be read with other sources of law to get the whole picture. Stability is given importance in both systems, but the common law system does not ignore the fact that the situations keep changing, which requires flexibility in the legal system. The common law system uses precedent to ensure stability Precedent is the device by which a sequence of cases dealing with the same problem may be called law rather than will, rules rather than results.13 If we keep India aside, as it is not a full-fledged common law country, we will see that the rules of stare decisis, do bring consistency. The judges cannot bypass the precedents set by other judges in the previous rulings. This is how stability and certainty are ensured in common law jurisdictions. No legal system is completely perfect, and no legal system is completely flawed. These legal systems have developed over time as per the needs of society and changes in society. The common goal of every legal system is to provide justice, which is the most significant similarity between the legal systems.
