Impact of Common Law and Civil Law on the Personal Law of India

English and French Approaches to Personal Laws in South India, 1700-1850 by Anselmo Francisco Trinidad Reyes, PhD Law Thesis, University of Cambridge, 1986

 

Introduction

The purpose of this thesis is to examine the extent to which different legal traditions, common and civil, influence the articulation of personal laws.

It contributes towards the study of development of personal or minority law institutions by common or civil law courts today.

This thesis finds that difference in legal traditions did not play any major role in the articulation of personal laws. They developed roughly in identical fashion aside from a few discrepancies. For instance, both the English and the French applied the prohibition of usury in India, but under different motives. The English because of sensibilities of the Hindu, and the French because of their inspiration by the canon law prohibition of usury.

Theoretical Framework: Autonomy v Functionality of law

In The Evolution of Law, Professor Watson argued that economic, social and political conditions have no direct effect on the direction of legal change. Lawyers in civil and common law tradition are by nature conservative. Hence, this is the logic of legal tradition which ultimately determines the nature and extent of legal change.

Dr Washbrook’s model of Anglo-Hindu law, articulated in his famous article, ‘Law, State and Agrarian Society in Colonial India’, is diametrically opposed to this view. He argues that the needs of the East India Company had direct bearing on the way the law was interpreted and developed in India.

Conclusion

English and French laws reached to the same conclusion, though through different methods. Factors external to legal traditions played a part in reducing discrepancies between the two legal systems. The French relied upon English legal literature because of their meagre financial resources. The English, on the other hand, relied upon Roman law.

Selected Excerpts

‘The plurality of legal sources implies a degree of uncertainty within the legal system. That uncertainty gives the judges room to manoeuvre in the articulation of legal principle.’ pp384-5

‘Textbook writers are less constrained than judges in that they pick and choose themselves, from varied laws available, the principles they wish to articulate. Judges must react to what is offered them in argument by the parties to a dispute…’ p386

‘Finally, one cannot discount the influence of similar economic, political and social pre-occupations in adjacent settlements, leading to similar perceptions and solutions.’ p392