Common Law and Civil Law System

INTRODUCTION:

The task of interpretation rests with the judiciary. When the statute has been framed, drafted and passed by the legislature of a state, the work of court begins, which supplements, develops and shapes the given materials by the technique of interpretation, which in fact is the skilled art of the Court.

It can make any code or statute within the limits of constitutional provisions, if any for the welfare of its country and subjects.

The provisions of the codes and statutes cannot be changed by the judicial reasoning’s. The legislature of every legal system has power to repeal amend and replace any rule of legislative law, judiciary law and custom. The supremacy of legislation has given rise to a technique to be followed in ascertaining the meaning of a statute when its words are ambiguous and fail to give a real expression for which it stands. The common law approach and the civil approach in the respect differ widely.

Common law

Common law also known as case law or precedent, is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes  or executive branch action. A “common law system” is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions. The body of precedent is called “common law” and it binds future decisions. In cases where the parties disagree on what the law is, an idealized common law court looks to past presidential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases (called a “matter of first impression”), judges have the authority and duty to make law by creating precedent.  Thereafter, the new decision becomes precedent, and will bind future courts.

In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of lower courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law, also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in England where it originated in the Middle Ages, and in nations or regions that trace their legal heritage to England as former colonies of the British Empire, including the United States, Malaysia, Singapore, Bangladesh, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Zimbabwe, Hong Kong, and Australia.

CIVIL LAW

Civil law (or civilian law) is a legal system inspired by Roman law, the primary feature of which is that laws are written into a collection, codified, and not (as in common law) interpreted by judges.

Conceptually, it is the group of legal ideas and systems ultimately derived from the Code of Justinian, but heavily overlaid by Germanic, ecclesiastical, feudal, and local practices, as well as doctrinal strains such as natural law, codification, and legislative positivism.

Materially, civil law proceeds from abstractions, formulates general principles, and distinguishes substantive rules from procedural rules. It holds legislation as the primary source of law, and the court system is usually inquisitorial, unbound by precedent, and composed of specially trained judicial officers with a limited authority to interpret law. Juries separate from the judges are not used, although in some cases, volunteer lay judges participate along with legally trained career judges.

Common Law Approach to Interpretation.

In common law countries the three fundamental principles of interpreta­tion, are literal interpretation, the golden rule and the mischief rule. The basic task of the judge is to ascertain the intention of the legislature. The literal rule of interpretation is that the intention of the legislature must be found in the very words and sentences of the statute. In England we find a particular approach to be method of interpretation which has been evolved and developed the courts of law in the course of time. In this approach certain principles, rules and procedure have been provided all of which more or less have been adopted by the others of the common law world. The words must be interpreted in their literal sense and the sentences according to their grammatical, meaning. The intention of the legislature is given in the words used and the court, therefore, should look to the words and sentences of the statute.

Where in a statute two or more interpretations are possible the court must adopt the literal interpretation. The mischief rule of interpretation is the rule in Heydon’s case. This method of interpretation lays down that where a statute has been passed with the idea to remedy a mischief, the court should interpret the statute, which will have the effect of correcting, that mischief in question.

In order to ascertain the mischief in the statute the judge should look to the preamble of the statute, its heading and to other extrinsic sources (such as the reports of Parliamentary Committee), which may indicate the position of law before the Act was passed.

Theory:

The civil law approach towards me interpretation is based on logical reasoning given in various theories and schools recommended in their countries by various writers and jurists.

(a)  Free Lays Theory.—The exponent of this theory was Ehrlich, who advocated the use of free hand by the judges in the interpretation of law. The judges should be given power even to change statute where the results of literal interpretation are absurd and unjust. According to this theory, “a judge is invested with the widest powers in dealing with the language of the statute. He may disregard it if it is either incomplete or ambiguous or if he thinks that the wording is calculated to lead to injustice.

If he exercises this prerogatives he is under a duty to apply the rule which he conceives would have been formulated by the legislator, if he had been aware of the consequences.

This theory has not been approved by the writers because it gives unlimited powers to judges in their task of interpretation.

(b)  Social purpose Theory.—This theory has been advocated among others

Cooperative law by Professors Laski and Zenning. This theory is based on the proposition that the written law must be considered a sociological phenomenon rather than the will of a given legislator. The judge must adopt that meaning which accords most closely with the social and economic purposes of the statute.

In France, Geny, on similar lines, laid down the theory of free scientific research, which says that, “judges arc to be bound by the text of the written law only when and to the extent that the text is clear. In all other cases they must, against the background of the legal system as a whole and of the values held by the society, consider the particular social and economic facts involved, trying to arrive at the most just solution for the given situation.”5 This theory is based on the logical value of the intention of the legislature, which in fact is the basis of interpretation in all the systems of law.

Gutteridge says,”……When the judge in a French or of a German Court embarks on a voyage of discovery of but social or Ziveck, he is, in reality, seeking to ascertain the intention of the legislature. The social or economic purpose of a modern statute must, of necessity, coincide is most cases with the intention.”.This theory is defective, because it gives wide powers to the judges. Under the garb of social purpose, they would not give such interpretations as required by them. This will have serious consequences in their work of administration of justice.

The judges of the continental countries have to a certain extent followed social purpose theory not because of its intrinsic worth but due to their own technique and method, quite different from common law countries. They have not adhered strictly to any theory, as their main concern throughout has been to arrive at just solution in the cases before them. In this connection.

Rene David and Brierley say:

“Legislators, with praiseworthy wisdom, have never been under the illusion that they might impose particular methods of interpretation; the rules established on the subject in each country leave a wide latitude to interpreters. Consequently, in this matter everything depends on the psychology of those concerned and the current thinking by which they are more or less consciously guided. It would seem that nowhere, and at no time, has the practice abandoned itself entirely to one particular stream of thought; the main concern is to arrive at just solutions, and to this end the different doctrines are combined, avoiding an individual adherence to the view-point of any one theorist.

The civil law approach towards interpretation can be studied with reference to the procedure followed in France which is its most popular and represe­ntative system in the world. The distinct technique adopted by the courts in France can be given and studied under the following headings.

Basic principles of common law

Common law adjudication

In a common law jurisdiction several stages of research and analysis are required to determine “what the law is” in a given situation. First, one must ascertain the facts. Then, one must locate any relevant statutes and cases. Then one must extract the principles, analogies and statements by various courts of what they consider important to determine how the next court is likely to rule on the facts of the present case. Later decisions, and decisions of higher courts or legislatures carry more weight than earlier cases and those of lower courts.Finally, one integrates all the lines drawn and reasons given, and determines what “the law is”. Then, one applies that law to the facts.

The common law is more malleable than statutory law. First, common law courts are not absolutely bound by precedent, but can (when extraordinarily good reason is shown) reinterpret and revise the law, without legislative intervention, to adapt to new trends in political, legal and social philosophy. Second, the common law evolves through a series of gradual steps, that gradually works out all the details, so that over a decade or more, the law can change substantially but without a sharp break, thereby reducing disruptive effects. In contrast to common law incrementalism, the legislative process is very difficult to get started, as legislatures tend to delay action until a situation is totally intolerable. For these reasons, legislative changes tend to be large, jarring and disruptiv).

One example of the gradual change that typifies the common law is the gradual change in liability for negligence. For example, the traditional common law rule through most of the 19th century was that a plaintiff could not recover for a defendant’s negligent production or distribution of a harmful instrumentality unless the two were in privity of contract. Thus, only the immediate purchaser could recover for a product defect, and if a part was built up out of parts from parts manufacturers, the ultimate buyer could not recover for injury caused by a defect in the part.

We hold, then, that the principle of Thomas v. Winchester is not limited to poisons, explosives, and things of like nature, to things which in their normal operation are implements of destruction. If the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger. Its nature gives warning of the consequences to be expected. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests then, irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully. … There must be knowledge of a danger, not merely possible, but probable.

Grammatical and Logical Interpretations:

Continental judges in their approach are more logical than literal. True as it is, if they will not find any ambiguity in the words of the statute they will on principle, accept, them, even though they form a contrary view. But if they fail to discover clarity in the language they will proceed, logically, to look to the intention of the legislature in the enactment. This process of interpretation calls for the comparison of one statute with other statutes and with the whole system of law and for the consideration of the time and circumstances in which the statute was passed. The rule of logical interpretation is a problem in the sense that “it considers the legislative provision not merely as an isolated writing but in the context of entire body of rules comprising the legal system in either the same statute or in other laws or in recognizing principles of law.

About the practice in continental countries Dennis Lloyd says :

“Continental theory, however, treats statutes (usually, but not necessarily, in codified form) as the basis of the law, but these tend to be drafted in a very general and abstract way, the task being Left to the courts to fill in the details of the statutory provisions by reference to a presumed legislative intentions. Moreover, it is generally accepted that gaps in a statute may be filled by analogical reasoning, on the footing that the legislature might be presumed to have desired to cover such cases fit had these in contemplation.

The attitude of the continental judges, particularly in France, in adopting this method of logical interpretation, is as follows:

(1)   If the text of a code or other statute fails to deal or deals with only a part of law in application to a problem or with the circumstances to which it is applicable, it is the duty of the judge to see whether the omission is deliberate or due to inadvertence on the part of legislature or to other cause. If the omission is deliberate, i.e., if it appears that the legislator has not framed the rule intentionally, the judge should disregard the statute and decide the case on the basis of other sources.

If he finds that the omission is inadvertence, i.e., due to some oversight on the part of the legislator, he should decide the case on the basis of reasoning and analogy, given in other rules of the code or statute. It is to be noted here that in no case can a judge refuse to render a decision on the ground of absence, obscurity or insufficiency of law in the code. It is his duty to find out a possible solution for the decision of the case. Article 4 of the Civil Code lays down:

“A judge who refuses to decide a case under pretext of silence, obscurity or insufficiency of the law, may be prosecuted as being guilty of a denial of justice.”-

Further Article 165 of the French Penal Code writes:

“Any judge or tribunal, any administrator or administrative authority, which under any pretext, even of the silence or obscurity of the law, refuses to render justice to the parties as is his duty, after having been so requested, and who preserves in his refusal, after warning or order of his superiors, may be prosecuted and punished by a fine of 48,000 francs minimum and 1,20,000 francs maximum, and by being prohibited from exercising public duties for from five to twenty years.”

(2)   If the statute has given one meaning and the legislature has committed error in its expression so as to lead to certain abrurdity, the court can disregard it and adopt logical interpretation The Court of Cassation has in case held that it could disregard the literal languages used in order to avoid as obvious absurdity.

(3)  In the field of Criminal Law and Tax Law logical interpretation can be employed as matter of principle, only when it is favourable to the accused. Here interpretation by analogy is not permissible if its effect is to broaden the definition of penal offence or to extend the basis of taxation in circumstances not clearly set forth in the statute. The most important fact is the existence of the same court to conduct both the civil and criminal cases. The judges of the court, primarily trained in civil matters, adopt the method of logical interpreta­tion in the decision of criminal cases.

(4) In the field of administrative law, which in fact, is unwritten law, the administrative courts may apply logical interpretation to the rules of law, step out and formulated in the administrative Courts well as to specific statutes. Rene David says. “The French jurist, in this branch of the law, considers not only the “letter” of the law; he seeks in the “spirit of texts their relationship to other sources, a combination of principles to guide the solution of any issue of law.”

Historical Interpretation:

As regards historical interpretation the French judges are prone to use it along with logical interpretation. This method seeks to ascertain the intention of the legislature by looking into the history of the enactment. Thus where the language of the statute is not clear and the court is not able to ascertain the will of the legislature by means of literal interpretation, the court should consider the circumstances attending to the original enactment and general scheme of the Act. A French judge in his task of interpretation may resort to the historical origin of the rule. He may consult the records of the legislature and proceedings of the parliamentary debates, which has brought the statute into existence. He may also consult not only ministerial statements and reports qf the parliamentary committees but also the debates in the chamber and the senate. German courts also resort to such methods of historical interpretation. They adopt the practice of studying the preliminary drafts of the civil code and the report of various committees, the purpose of ascertaining the intention of the legislator. The scheme of historical interpretation can be applied in the following cases:

(a)   It is usually adopted by Frenchmen when the question of construction of an international agreement or treaty arises which are not authoritative in statutory form, but derives the force of ‘aw from conventions, practices and the fact of its adoption by the respective countries.

(b)   It is also availed of in those statutes which are recent in origin because with the passage of time it becomes difficult to know the intention of legislature in view of social changes and new conditions.

Teleological Interpretation:

Teleological interpretation presupposes the need for extending the application of a statute to situations admitted beyond the scope of legislative intent. This method warps the text to suit the needs of the time. In ascertaining the mind of the legislature the judge has to go behind the letter of the enactment and find out several needs and purposes of the statute. This method of inter- -pretation is called the extensive and progressive interpretation.

The question, whether the teleological interpretation can be employed in France, has been answered by Rene David and Vries in the following words; “Telelogical interpretation has, to some extent, always been used in France. In no period can the judge isolate himself from the realities surrounding him. And the legislator has, by employing certain general terms, left to the courts ample powers of discretion in statutory inter­pretation. The courts must decide which statute concerning public policy and good morals cannot be waived by the parties to an agreement.

 Various other article of the Civil Code permit the judge to decide according to equite or equitable principles in the particular situations. Article 1382, the basic article of French tort law creates the duty to compensate for damages caused byfaute. Since the Code does not define Ordre public, bonnes moeurs, equite or faute, these terms must be interpreted by the courts in particular cases. These general formulations in the Codes permit an interpretation based on shifting social purposes: In the absence of a doctrine of precedent, there is no formal limitation on the power of the courts to weigh their possible application but in practice the agglutination of recent opinions of the highest courts and of recognised doctrinal writers furnish a strong guide to interpretation and decision. Apart from the application of these general terms, admittedly variable in meaning and content with changes in the social and moral climate, teleological interpretation has necessarily played some part, if only in those cases where historical interpretation offered no solution to the possible choices left open by grammatical and logical interpretation.”

The difficulties in teleological interpretation are obvious and a French Judge usually does not prefer to use it because of its limits in operation.

(a)   This method can be applied within the limits of logical and gram­matical interpretation. A judge in interpreting a rule cannot go beyond what the words in logical and literal sense indicate.

(b)   Teleological interpretation cannot exclude the operation of historical interpretation because the letter which aims at the true intent of the legislature is preferred in order to achieve uniformity in rules.

(c)  Teleological interpretations cannot be employed to interpret the terms of an international treaty.

(d)  The’statutes which have been enacted recently cannot b”. interpreted by teleological melhods.

Bonne case has given the account of French method of interpretation in following words;

“When the text presents some ambiguity, when doubts arise as to its meaning and scope, when it can to a certain extent be contradicted or contracted or when on the contrary expanded through comparison with another text, I believe that the judge has the broadest powers of interpretation. He does not need to confine himself to an obstinate inquiry into the meaning that in framing such and such an article, the framers of the Code had actually intended a hundred years ago. He must ask himself what would have been their intent if the same article had been framed by them today. He must say to himself that in the light of all changes that have occurred in the course of a century in ideas, ethical standards and institutions, in view of the economic and social conditions now prevailing in France, justice and reason direct him to adopt the statutory text liberally and with humanity, to the realities and need of modern life.

Much can be said in favour of Ideological interpretation. Although its activities in continental countries are restricted, its scope is bright. Napoleonic Codes are more amenable to this kind of interpretation, although in practice logical and historical interpretations are, in most cases, resorted to by the Courts.

Comparison between Courts in Common Law and Civil Law Countries.

For a comparative study the similarities and differences in court obtained between the two systems will be studied. First of all -the study of similarities becomes necessary.

Similarities.–In both the systems organisation, powers and jurisdiction of the courts are determined by law.                                                   ,           .

In France the Napoleon Code makes a detailed provision of the establishment, powers and jurisdiction of the Court. It also deals with the procedure of the court and the working of different authorities. Thus it operates as a good national control, likewise the establishment, organisation and jurisdiction of courts in Gerrnany have been elaborately dealt with under the national law of that country.

In Bangladesh also the provision for the establishment, organisation and jurisdiction of the courts and for the appointment, term of office and retirement of judges have been elaborately dealt with under different statutes. Supreme Court in Bangladesh ; has power to frame rules for the High Court and the other courts and the High Court has power to frame rules for its subordinate courts, like wise the Congress in United States of India has powers to frame rules Which are equally applicable to federal Courts. In England also the same is found. There also the Judicatiure Act of 1873-75 and the other enactments which are passed time to lime try to. bring about uniformity in the National Judicial System.

 Difference:Main differences between the Courts of, the Civil and the Com­mon Law system, are noted hereunder.

(i) Ordinary and administrative courts. The dividing line of the courts between the two systems is their division, between ordinary and administrative, courts. Administra­tive Courts have also been established in the Civil Law countries like France ‘and Germany but only ordinary courts have been established in Common Law Countries. In France and .Germany ‘for .the administrative acts of public servants administrative Courts, have been established and for the common public ordinary courts have been authorized., No such distinction is maintained in Bangladesh ,India, England and America, the same court is competent to exercise its jurisdiction over both type of courts.

One important reason for the division of courts is that in continental system ‘a distinction, is maintained between Public ‘and Private Law. In France the ordinary Civil Courts cannot interfere in the national .activities. Special administrative courts have been established there to conduct trial of the cases pertaining to public law.

 (ii) Organization of Bench: Barring local Courts of France and Germany almost all the benches are constituted by more than one judges; whereas, in Common Law countries like Bangladesh, India, England and America bench is constituted by’ one judge only. In High Court in (certain matters only) and in Supreme Court more than one judges constitute the Bench.

 (iii) Election- of Judges: Judges are elected in the Commercial Tribunal and the Industrial Disputes Council in .France and their election is conducted through the members of different bodies. Contrary to it judges are appointed in Bangladesh, India, England, and America. In Gram Panchayat alone members are admitted through election.

(iv) Settlement of Disputes: Special tribunals have been established in France to the settlement of disputes which- aim at resolving the disputes before they go to courts. Result is that the number of cases going to .courts is very scanty, whereas in Common Law Countries particularly in Bangladesh, India, America and England no such system exists. In these countries reconciliation is resorted to only hi cases of labour and in rest of the cases matter goes to the courts direct.

(v) Provision regarding Appeal: Main characteristic of the judicial system in France is that there is provision of first appeal only. There appeal from the court of first instance is preferred in ‘the Court of Appeal. Court of Cassation in France too does not entertain appellate jurisdiction in matters of law, and fact. It entertains ‘only; a sort of revisional jurisdiction . This court Cither rejects the case or sends it for consideration before any other appellate, court. In Common law countries and, particularly in Bangladesh, India, England and America provision is made for second appeal.

(vi) Representative of the State: In the judicial system of France one representa­tive of the State is generally attached in ever court. He is known as Parquet and his function is to protect the interest of the State in judicial functions. In common law countries specially in civil matters no such official is attached with the Slate for the protection of its interest.

(vii) Power to declare Statute Unconstitutional: In France and Germany Courts are not competent to declare a statute law void even if the law is against the constitutional provision of those countries. On the other hand, courts in India and America are competent to declare a statute law void if it is against the constitutional provision of those countries.

(viii) Outlook of the decision: In France and Germany there is no right to judges to give their own views in the judgment. The judgment as a whole is published in the name of the court and that cannot give any idea as to which judgment is rendered by a particular judge. On the other hand in the Common law countries .judgment is given on the basis of majority opinion and minority decisions are also published, Every Judge participating in the hearing of the case is free to give his decision.

Comparison of  the Supreme Court of Bangladesh, India, with the supreme court of United state of America:

On comparing the Supreme Court of Bangladesh, India & the Supreme Court of United States of America following similarities sire observed:

Constitution: Highest Court of Bangladesh, India & United States of America is known as Supreme Court. All of the courts have been established on the basis of written Constitution of these countries. Provision for the establishment of the Supreme court of Bangladesh is made under Article 94(1) of the Constitution of Bangladesh, like Supreme court of India is made under Article 124 of the Constitution of India & that of the Supreme court of America is made under article 3 of the Constitution of America.

Original & Appellate Jurisdiction: The court have been vested with original & Original and appellate jurisdiction. The Supreme Court of Bangladesh has been vested with  original & appellate Jurisdiction through article 103(1,2,3,4), 104 & 105 Respectively of the constitution & India has been vested with  original & appellate Jurisdiction through  article 131, 132, 133,& 134 of the Constitution.

Right to declare Unconstitutional: Bangladesh, India &American Supreme Courts have a right to declare a law passed by the Court, unconstitutional.

Binding Nature: Decisions rendered by all of the courts are binding upon their subordinate courts. No provision of this kind exists in France. According to provisions of Article 103 of Bangladesh constitution & Article 141of Constitution of India decision of Supreme Court of India are’ binding on all the courts in Bangladesh & India.

 Appointment of Judges: Judges of both the Supreme court are appointed by the President of their respective countries .All of the Countries the President has an right to remove the judges.

Following differences are found in the Supreme Court of the two countries :

Composition and Jurisdiction: Provision regarding composition and jurisdic­tion of the Supreme Court and the appointed of judges, their salaries etc. are dealt with elaborately under the Constitution of Bangladesh and the parliament has to do nothing. Constitution of the United States of America makes a provision for the establishment of the Supreme Court and detailed rules are made by the Congress.

Appointment of the Judges: Judges of the Supreme Court of Bangladesh are appointed by the President of Bangladesh on advice of the Judges of the Supreme Court and the High Court as the president deem fit. In the United States of America Judges are appointed by the President by the president on the advice of Senate.

Original Jurisdiction: According to Article 103&104 of the Constitution primary jurisdiction is available to the Supreme Court only  in cases where the Government of Bangladesh or the state is a party. In United States of America apart from the disputes of the States Supreme Court also enjoys the power to settle the disputes ‘ of ambassadors and public ministers. Thus it is clear that the Supreme Court of Bangladesh does not exercise its orginal jurisdiction when a citizen are a party Whereas the Supreme- Court of the United States of America in certain cases exercises its jurisdiction.

Comparative approach to interpretation in Common Law and Civil Lam systems:

It is true that both the common law and civil law countries have varied methods of interpretation, but up to a certain extent they resemble each other. The Courts in both the systems always give weight to logical method and take into account the intention of legislature as-paramount in interpreting the statute. If the words of the statute do not show any ambiguity the judges of both the common law and civil law countries, like India, England, France and Germany will take them granted for the decision of the case. They will not deviate their mind even if they are agreeable with the contents of the rule. But if the language of the statute is dear or convey two or more expressions, judges will try to find out the true intention of the legislature in any one of them and thereby interpret the rules accordingly. In addition to it, in both the jurisdictions, judges always construe the statute as a whole in their logical activities of interpretation.

The differences are also too many. The common law system of interpreta­tion is not favoured in civil law system and judges of both the countries have adopted different attitude in this matter.

(1)   In common law countries grammatical interpretation is more preferred than logical or other methods of interpretation. The courts cannot go beyond what has been stated in the very words of the statute. In no circumstance have they any power to override statutory expressions and decide the case otherwise under some pretext or the other. Both the Indian as well as English Courts have repeatedly held that if the meaning of the statute is plain in and dear it should be given ordinary and natural meaning, even though the rules therein are such as to cause injustice. In France and other continental countries, the courts in the ordinary course follow literal expression of the statute, but where statute is such as to lead to absurdity or severe injustice, they can disregard the rule and adopt logical interpretation.

(2)   The common law procedure is that where the rule in a statute is ambiguous and not dear, the approach of the judge should be such as to ascer­tain its meaning from the intention of the legislature and in doing so he should take the words with reference to their contract, i.e., the words should be interpreted in the light of other sections and the help of both internal and external aid can be sought. The judges as Gutteridge says “must make the best out of the text and give effect to any meaning, which it beats, which is not manifestly unjust and fantastic, even though the results may be to defeat the intention of the legislature. They cannot consult the reports of the debates in Parliament or any other record of the ministerial and parliamentary deliber­ations, which have led to its enactment. ‘The civil law procedure is quite different. In France the judges, in order to give effect to the intention of the legislature, go further to their common law colleagues. There the consultation of parliamentary proceedings, leading up to legislation has since long been a favourite instrument of judicial interpretation. If the language of the statute is doubtful, the judge will, addition to the ministerial debates and reports of the parliamentary Committee consult the reports of the debates in the chamber and in the Senate. Similar is the practice followed by German Courts.

(3)    The scope of interpretation in common law countries is not so wide as found in civil law countries. In common law system the activities of the judges in the process of interpretation, are restricted to the extent of the decisions of the courts, superior to the-court of their jurisdiction. The principle of stare decisis is observed by them strictly and they cannot overrule or go against a precedent established by a higher judicial authority. But the continental practice is diametrically opposite and the scope of interpretation there is unlimited. Thus the Courts in France, Germany, and other civil law countries are not bound by the decisions of any court. The judges have greater freedom of action. They are only required to do justice and not to follow the precedents of any superior courts. Even the inferior courts can interpret a rule against an established decision of its highest Court of Cassation in the chamber and in the Senate. Similar is the practice followed by German Courts.

(4)   The scope of interpretation in common law countries is not so wide as found in civil law countries. In common law system the activities of the judges in the process of interpretation, are restricted to the extent of the decision of the courts, superior to the court of their jurisdiction. The principle of state decisis is observed by them strictly and they cannot overrule or go against a precedent established by a higher judicial authority.  But the continental practice is diametrically opposite and the scope of interpretation there is unlimited. Thus the Courts in France, Germany and other civil law countries are not bound by the decisions of any court. The judges have greater freedom of action. They are only required to da justice and not to follow the precedents of any superior courts. Even the inferior courts can-interpret a rule against an established decision of its highest court, the Court of Cassation.

(5)    The Indian and English judges in common law countries are not accustomed to adopt Ideological interpretation. They are logical in their approach and only in exceptional cases they consider social, economic and other factors in their works of interpretation. They are more guided by the doctrine and principles, which the courts in England have established during the course of time. The mischief rule in Hsyden’s case ejusdem generis etc. are examples of such principles, ihe position in continental countries is different There the judges usually are accustomed to interpret law by reference to its history, its effect on society, and its morals and economic activities. Teleological interpretation has always been used in France and Germany and neither the dvil courts have laid down any doctrine in this regard nor are they bound to follow any rule as has been established in English law of interpretation. The continental theory treats statutes as the basis of law, but these are to be drafted in a general and abstract way. The task, left to the courts is to fill in the details of the statutory provisions by reference to a presumed legislative intention.

(6)    Common law is for the most part free from the influence of the theories as to the nature of imperative functions, are prevalent in civil law countries. The common law method is not based on any theoretical deduction in regard to the interpretation of statutes. The theories, which the jurists and writers have propounded in this field are not applicable in England. In continental countries interpretation work absorbs great influence of various theories, like Geny’s theory of free scientific research, or Laski’s theory of social purpose, etc.

Conclusion:

 In almost all the countries of the world the law laid down in codes and statutes are regarded as the primary source of law, having superior authority over other sources of law. They are to be followed in all circumstances, however they are harmful and bad to the society. Only in the absence of a provision in the codes and statutes the judiciary or customary law prevails. In all the countries of the world the legislatures has wide powers to frame the rules of law.

Reference

  • Comparative law………………….   H.C. Gutteridge
  • Comparative law………………….   H. P  Gupta
  • Comparative law………………….   S. L Khanna
  • Newspaper…………………………. The Daily Star
  • www.yahoo.com
  • www.google.com

Common Law

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