Common Law Foundation

COMMON LAW FOUNDATION
What are common law foundations?
Common law foundations are a body of laws which are unwritten and
are based on legal precedents that are established by the courts. For
unusual cases where the result cannot be decided on the basis of current
laws or written law regulations, common law guides the decision-
making process. Common law is also known as case law and it is a body
of laws which are unwritten and are based on legal precedents
established by the courts. Common law draws from institutional
opinions and interpretations from judicial authorities and public spheres.
Common law is an unwritten body of laws based on judicial precedents.
Common law affects the decision-making process in unusual cases,
where an outcome cannot be determined based on existing statutes or
written rules of law. American common law system developed from a
British tradition that spread to North America during the colonial period
of the 17th and 18th centuries. Common law is followed in many parts of
the world, including Australia, Canada, Hong Kong, India, New
Zealand, and the United Kingdom. The concept of “Common law” is
based on institutionalized judgments and interpretations from the courts
and the jury.
Understanding Common Law Foundations
A judicial precedent is also known ‘Stare Decisis’. It ensures that cases

with similar scenarios and facts are approached in the same way. Simply
put, it obliges the courts to follow the legal precedent set by previous
rulings. Common law, also known as case law, relies on a detailed
record of similar situations and laws because there is no official legal
code that can apply in a case.
The judge presiding over a case determines which precedents apply in

that particular case. The precedent set by the High Courts is binding on
cases tried in lower courts. This system promotes stability in the
American legal justice system. However, lower courts may choose to
amend or deviate from the precedents if they are older or if the current
case is significantly different from the preceding case. Lower courts can
also reverse precedent, but this is rarely the case.
Features of a Common Law System

1. There will be no codified laws or written constitution always.
2. Judicial decisions made at the highest courts can usually be
reversed only by the same court or by law.
3. Typically, all that is not specifically prohibited by law is permitted.
Common Law vs. Civil Law
Civil law is a broad, codified set of legal statutes made by legislators. A

civil system clearly defines cases that can be brought to court, the
process of handling claims and punishment for a crime.
Judicial officers use the terms in the applicable Civil Code to evaluate
the facts of each case and make legislative decisions. While civil law is
regularly updated, the aim of standardized codes is to create order and
also reduce biased systems in which laws are applied differently from
case to case.
Common law draws from institutional opinions and interpretations from

judicial authorities and public spheres. Similar to civil law, common law
aims to establish consistent results by applying the same standards of
interpretation.
In some instances, precedent relies on the case-by-case traditions of
individual courts. As a result, elements of the common law may vary
between districts.
Common Law: Application in Indian Context

Common law has been applicable in India though in a different format
than that of England as the needs and demands of the Indian society
were different from that of the English. It is to be found out that much of
the law compiled in codes we have today were primarily derived from
the Common Law principles. The basic statutes governing civil and
criminal justice are the Indian Penal Code, 1860, Indian Evidence Act,
1872, the Code of Criminal Procedure, 1973 and the Code of Civil
Procedure, 1908. Another contribution to Indian legal system by
Common Law has been the adversarial system of trial. In this system the
accused is presumed to be innocent and the burden is on the prosecution
to prove beyond reasonable doubt that he is guilty. The accused also
enjoys the right to silence and cannot be compelled to reply. The truth is
supposed to emerge from the respective versions of the facts presented
by the prosecution and the defence before a neutral judge. Both the
parties have a right to question their witnesses and the opposing side has
a right to test their testimony by questioning them. . The judge acts like
an umpire to see whether the prosecution has been able to prove the case
beyond reasonable doubt and gives the benefit of doubt to the accused,
his ultimate duty being to pronounce the judgment regarding the matter.
The system of Precedents derived from the Common Law too has wide
application within the Indian legal system, a precedent in Common Law
parlance means a previously decided case which establishes a rule or
principle that may be utilized by the court or a judicial body in deciding
other cases that are similar in facts or issue. Initially the English judges
and barristers presiding and practicing in the Indian courts followed the
decisions of the courts in England, thus slowly the concept of precedents
came to be ardently followed within the Indian courts. This law has been
carried forward in the present day Legal system as in regard to the
judgments of the Supreme Court of India the Indian Constitution
provides that “The law declared by the Supreme Court shall be binding
on all courts within the territory of India.”[3]Hence it can be said
unequivocally that Common Law has wide application within the Indian
Legal fold as many of the features of this system have been adopted and
further developed from that of The English Common Law System, even
though its application hasn’t been discussed in entirety and only the
major principles derived from it have been discussed.
Thus it can be said that common law traces back its origins to England
and is primarily a method of administering justice, which has
incorporated different aspects of the legal pedagogy and practice with
the help of deliberations of laymen and the learned over the course of
time. In the Indian context the common law initially was applied for the
convenience of the English, so they could govern their territories
properly but, as they became the overlords of India the common law
became common for Indians. There developed a symbiotic relationship
between the Indian customary law and the common law which gave
birth to the modern day Indian legal system. Hence we can say India has
an organic law as a consequence of the common law system.

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COMMON LAW FOUNDATION

What are common law foundations?

Understanding Common Law Foundations

A judicial precedent is also known ‘Stare Decisis’. It ensures that cases

The judge presiding over a case determines which precedents apply in

Features of a Common Law System

Common Law vs. Civil Law

Civil law is a broad, codified set of legal statutes made by legislators. A

Common law draws from institutional opinions and interpretations from

Common Law: Application in Indian Context

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