COMPERATIVE PUBLIC LAW

UNIT -2
Part-A

What Is a Constitution?
The vast majority of contemporary constitutions describe the basic principles of the state, the
structures and processes of government and the fundamental rights of citizens in a higher law
that cannot be unilaterally changed by an ordinary legislative act. This higher law is usually
referred to as a constitution.

The content and nature of a particular constitution, as well as how it relates to the rest of the
legal and political order, varies considerably between countries, and there is no universal and
uncontested definition of a constitution. Nevertheless, any broadly accepted working definition
of a constitution would likely include the following characteristics:

A constitution is a set of fundamental legal-political rules that:

(1) are binding on everyone in the state, including ordinary lawmaking institutions;

(2) concern the structure and operation of the institutions of government, political principles
and the rights of citizens;

(3) are based on widepread public legitimacy;

(4) are harder to change than ordinary laws (e.g. a two-thirds majority vote or or a referendum
is needed);

(5) as a minimum, meet the internationally recognized criteria for a democratic system in terms
of representation and human rights.

The Functions of a Constitution:

1)2Constitutions can declare and define the boundaries of the political community. These
boundaries can be territorial (the geographical borders of a state, as well as its claims to any
other territory or extra-territorial rights) and personal (the definition of citizenship). Thus, a
country’s constitution often distinguishes between those who are inside and those who are
outside the polity.

)Constitutions can declare and define the nature and authority of the political community. They
often declare the state’s fundamental principles and assumptions, as well as where its
sovereignty lies. For example, the French Constitution declares that ‘France is an indivisible,
secular, democratic and social Republic’ and that ‘National sovereignty belongs to the people,
who exercise it through their representatives and by means of referendums’ (Constitution of
the Fifth French Republic). The Constitution of Ghana (1992) states that, ‘The Sovereignty of
Ghana resides in the people of Ghana in whose name and for whose welfare the powers of
government are to be exercised’.

3)Constitutions can express the identity and values of a national community. As nation building
instruments, Constitutions may define the national flag, anthem and other symbols, and may
make proclamations about the values, history and identity of the nation.

4)Constitutions can declare and define the rights and duties of citizens. Most constitutions
include a declaration of fundamental rights applicable to citizens. At a minimum, these will
include the basic civil liberties that are necessary for an open and democratic society (e.g. the
freedoms of thought, speech, association and assembly; due process of law and freedom from
arbitrary arrest or unlawful punishment). Many constitutions go beyond this minimum to
include social, economic and cultural rights or the specific collective rights of minority
communities. And some rights may apply to both citizens and noncitizens, such as the right to
be free from torture or physical abuse.

5)Constitutions can establish and regulate the political institutions of the community—
defining the various institutions of government; prescribing their composition, powers and
functions; and regulating the relations between them. It is almost universal for constitutions to
establish legislative, executive and judicial branches of government. In addition, there may be
a symbolic head of state, institutions to ensure the integrity of the political process (such as an
electoral commission), and institutions to ensure the accountability and transparency of those
in power (such as auditors, a court of accounts, a human rights commission or an ombudsman).
The institutional provisions typically provide mechanisms for the democratic allocation and
peaceful transfer of power (e.g. elections) and mechanisms for the restraint and removal of
those who abuse power or who have lost the confidence of the people (e.g. impeachment
procedures, motions of censure).
6)Constitutions can divide or share power between different layers of government or sub-state
communities. Many constitutions establish federal, quasi-federal or decentralized processes for
the sharing of power between provinces, regions or other sub-state communities. These may
be geographically defined (as in most federations, such as Argentina, Canada or India), or they
may be defined by cultural or linguistic communities (e.g. the 1994 Constitution of Belgium,
which establishes autonomous linguistic communities in addition to geographical regions).

7) Constitutions can declare the official religious identity of the state and demarcate
relationships between sacred and secular authorities. This is particularly important in societies
where religious and national identities are interrelated, or where religious law has traditionally
determined matters of personal status or the arbitration of disputes between citizens.

8) Constitutions can commit states to particular social, economic or developmental goals. This
may take the form of judicially enforceable socio-economic rights, directive principles that are
politically binding on the government, or other expressions of commitment or intent.

What Does a Constitution Typically Contain?

Most constitutions are divided and sub-divided into parts that may variously be known as titles,
chapters, articles, sections, paragraphs or clauses. Constitutions vary in the arrangement of their
provisions, although it is now usual for principles and rights provisions to be placed in a
separate section near the beginning of the text, for the main institutional provisions to be
grouped in the middle of the text, and for independent .The layout of a typical constitution
might resemble the following:

(1) Preamble: a statement of the overarching motives and goals of the constitution-making
exercise, sometimes referring to important historical events, national identity or values.

(2) Preliminaries: a declaration of sovereignty or of basic principles of government; the name

and territory of the state; citizenship and franchise; state ideology, values or objectives.

(3) Fundamental rights: a list of rights, including their applicability, enforcement, limitations,
suspension or restriction during a state of emergency.

(4) Social and economic rights or policy directives.

(5) Parliament or legislature: its structure, composition, terms of office, privileges, procedures,
etc.
(6) Head of state: the method of selection, powers, terms of office.

(7) Government (in a parliamentary or semi-presidential system): government formation

rules, responsibility, powers.

(8) Judiciary: Court system, judicial appointments, judicial independence, public prosecutors.
(9) Sub-national government: federal or devolved powers, local government.

(10) Provisions for referendums.

(11) Institutions of the so-called integrity branch (electoral commission, ombudsman, audit
institution, etc).

(12) Security sector: commander-in-chief, any restrictions on military power.

(13) Other miscellaneous provisions: special provisions for particular groups, language laws,
particular institution, etc.

(14) Amendment procedures, implementation timetable and transitionary provisions.

The Constitution and the Constitutional Order :

Despite the proliferation of nominally democratic constitutions, only a minority of states have
so far succeeded in maintaining a lasting democratic constitutional order. There is little benefit
in having a constitution that can be ignored with impunity or changed unilaterally by those in
power, or one that is so framed that the democratic nature of the constitution can be undermined
by ordinary laws or by exclusionary political practices. Likewise, if the rule of law is weak,
such that the constitution is selectively applied, this will undermine the achievement of a
constitutional order. A constitutional order, in this sense, represents ‘a fundamental
commitment to the norms and procedures of the constitution’, manifest in ‘behaviour, practice,
and internalisation of norms’ (Ghai 2010). The constitutional order is much broader than just
the constitutional text. It can include customs, conventions, norms, traditions, administrative
structures, party systems and judicial decisions that are integral to the practical workings of the
constitution. This deep cultural internalization of a constitutional order is very hard to achieve
(Ghai 2010). It is embodied, ultimately, in the political culture and in the ‘free and civic way
of life’ of a people (Viroli 2001). It is important to recognize at the outset that building a
democratic constitutional order is a longterm process. Drafting the constitutional text is only a
small part of the challenge; it is also necessary to establish institutions, procedures and rules
for constitution-making (preparatory stage); to give legal effect to the constitution (ratification
and adoption) and, crucially, to ensure that the spirit and the letter of the constitution are
faithfully implemented. Each stage of this process depends for its success on the agreements
reached at the preceding stage: a poorly conceived drafting process is unlikely to yield a
successful text or to serve as the basis for a viable, stable and legitimate constitutional order.

Why Have a Constitution?

Even the best constitution cannot pave a road or build a sewer; it cannot manage a clinic or
administer a vaccine; it cannot educate a child or take care of an elderly person. Despite these
obvious limitations, constitutionalism is one of the crowning achievements of human
civilization. Countries that have succeeded in establishing and maintaining constitutional
government have usually been at the forefront of scientific and technological progress,
economic power, cultural development and human well-being. In contrast, those states that
have consistently failed to maintain constitutional government have often fallen short of their
development potential.

This is because constitutional government ensures ‘the fair and impartial exercise of power’; it
‘enables an orderly and peaceful society, protects the rights of individuals and communities,
and promotes the proper management of resources and the development of the economy’ (Ghai
2010: 3).

In other words, constitutionalism empowers legitimate authorities to act for the public good in
the management of common concerns while protecting people against the arbitrary power of
rulers whose powers would otherwise be used for their own benefit and not for the public good.

In providing fundamental rules about the source, transfer, accountability and use of political
power in a society, a constitution introduces a separation between the permanent, enduring
institutions of the state, on the one hand, and the incumbent government, on the other. The
constitution ensures that the government does not own the state: it simply manages the state,
under the authority of higher laws, on behalf of citizens.

In this sense, constitutionalism is the opposite of despotism. Despotism is a system of

government in which the governing authorities are a law unto themselves. Many states around
the world have historically been despotic. They are not bound by any higher law that restricts
how they rule, for example, by protecting the fundamental rights of the citizens or by ensuring
their accountability to the people. As a result, despots govern only for their own good, or for
that of a privileged minority who support the ruling class, and not for the common good of all
citizens.

Not all despotic governments are intolerably oppressive. In practice, despotism may be self
restraining, and outright oppression may be restricted to those who visibly oppose or threaten
the rulers or their interests. Nevertheless, the defining characteristic of despotism is that it is
arbitrary. Despotic rulers—whether an all-powerful monarch, a sovereign parliament, a
military junta or an authoritarian president—can make laws, and can determine right and
wrong, through their own unilateral decisions, without requiring broader consent or public
approval, without being restrained by balancing institutions and without being held to account
by the people.

In choosing to adopt constitutional government, people are choosing to say no to despotism

and to the precariousness of living under rulers who can act arbitrarily. They are choosing to
acknowledge that certain rights, principles, values, institutions and processes are too important
to depend on the arbitrary will of those in power: they should be entrenched in a way that makes
them binding on the government itself. In such a system, the people live under a government
of universal rules that are based on broad public consent, and they have freedom from the
arbitrary acts of the rulers.
 THE COMMON LAW AND CIVIL LAW

CIVIL LAW-

What we call “Civil Law System” is indeed a family of different legal systems tracing their
historical roots to the Roman law. As such, this family of legal systems is differentiated, today,
especially in regard to the other two major legal families existing in contemporary world legal
landscape: the common Law legal family and the Sharia of the Islamic legal model. As well
as the civil law, the “common law” is a set of highly differentiated systems of law sharing the
same origin to be found in the history and development of the English common law. Differently
the Muslim Sharia is supposed to be a unique system od principles and rules, based on the
Divine revelation contained in the Koran, even if its interpretation may vary very greatly in
different jurisdictions, cohabiting, also, with European like codes and modern constitutions,
and today is, on the average, applied only to the status personae, the personal condition of the
subject,

as marriage, divorce, inheritance and other related matters.

Historical Background of the Civil Law Origins.

The term “civil Law” is an English term used to translate the jus civile, or the proper Roman
law as it evolved from classical times to the end of the Empire when it became codified by
Justinian, from 529 to 534 AD, in his codes, constituting an ordered collection of a mass of
writing known as the Corpus Juris Civilis, or The Body of Civil Law. The work was planned
to be devided into three parts: the Code as a compilation of imperial enactments; the Digest or
Pandects composed of advices given by older Roman jurists on different points of the law, and
deemed to have authority for their learned character; finally the Institutes conceived as a for
law students at the newly established Law School of the Empire in Beyrouth.

Tribonian has been the editor in chief of this massive work, thought to represent the whole of
the jurisprudential tradition evolved from early Roman times up to the date of the compilation.

It is important to note two main facts.

First, it is the fact that the Roman Empire at that time was split into two parts and that this
compilation was enacted, having force of law, only in the Eastern part of the empire speaking
Greek. In this way the Justinian compilation, quite exotically, has been written in latin for an
empire speaking Greek, and was never enacted as such in the West, but influenced its legal
progress in the strongest possible way. Something which defeats any of our actual
understandings of the working of law.

Secondly, this enterprise has marked a total revolution of Roman Law, changing completely
its style and its structure. Roughly speaking, classical Roman law was an oral law, without
codes, but only with pieces of legislation passed by the various political assemblies. There was
not a formal system of legal education, each one having to learn the law from a practicing
lawyer, and especially there were not regular courts of law.

The Roman magistrate directing the trial, the Praetor, was a politician, appointed for one year,
and controlling only the form of actions pleaded before him by the parties. Then, to afford the
trial, he had to nominate a judex, a “judge” , a layman to be agreed by the parties. In this way
he was more an arbitrator than a judge. Just for this reason the learned opinion of jurists of
great reputation played such an important role: they had to advice the praetor and the judex, as
laymen, upon difficult and disputed points of the law. Moreover classical Roman law was
ruling only Roman citizens, namely only male adults, whose father was already dead, and
belonging to Roman families; a very small proportion of the inhabitants of the Empire. Roman
law has never been the clue of the Empire: Egypt was ruled by Egyptian law, Greek cities by
their own laws and so on. Only in 212 AD emperor Caracalla extended, for fiscal reasons, the
citizenship to all the inhabitants of the empire.

This “classical model” evolved, then, slightly overtime into the opposite one, which was finally
moulded by Justinian, having a central court of justice at the imperial chancellery, a formal
legal education at the law school in Beyrouth, and a fixed system of written sources collected
into the Corpus Juris and universally applicable to the whole of the empire. By this fact we
can say that the finale shape of Roman law, left in inheritance to the middle ages, was exactly
the opposite of its beginnings: from an oral law, administered by laymen, valid only for the
very few, to a written law, administered by professionals, universally valid. It is anyway to
remember that all this happened in the East, and not in the western part of the empire which
remained a patchwork of different laws: old Roman law, canon law, and the various laws of
the “German” nations, Goths, Franks and others, which occupied the West.

This eastern legacy became, anyway, extremely important in the West for theological political

easons linked to the birth and development of a renewed Western Sacred Empire from Charle
Magne, 800 AD, to the establishment of the first modern university in Bologna (1174 AD) and
on.The “great space” of continental Europe became to be shaped in “catholic” terms: the Sacred
Empire was to be thought as a single “body”, because eating the same holy communion all

his inhabitants shared the same flesh. The compilation made by Justinian became to be regarded
as a real “Revelation” of the Law for all mundane affairs not strictly confined to the

Church or to be left to morality. Indeed this compilation was the only extant remain of the law,
because it was written in bounded volumes of parchments, made to last, whereas all the
previous scripts were on papyrus paper, necessitating to be regularly copied to be preserved,
and so went quite completely lost in the barbarian west. Besides it was much more
comprehensive and well ordered that any existing barbarian compilation of laws. In this way
nobody really enacted the Justinian compilation as positive law in the West, but it was thought
to be the ratio scripta, the codified reason, of the law of a sacred unitary political body
ontologically grounded on the holy communion of all its inhabitants.

This sacred, and universal, as well as rational character of the compilation explains why it
became the basis of the university teaching of the law at Bologna, the first university
established in the West, from which sprang Padoua, Paris, Oxford and Cambridge, where
indeed Roman and not English law was taught. But the English Kingdom always refused to
become a terra imperialis, and so always refused to give any practical application to Roman
Justinian law. On the continent this common teaching shaped similarly, all over the places, the
legal mind of professionals and it was deemed applicable, as a law of reason and last resort, in
all cases not patently covered by local legislation.

This legal landscape formed the era of jus commune in continental Europe to be broken only
by the advent of modern codifications at the end of XVIII century. This also explains, in
comparison with the English legal system, the highly intellectual character of civil law: it was
a university scholarly law. Besides on the continent the use of writing never went completely
abandoned as it almost happened in England. English jury trial, as an oral pleading, was quite
a necessity given the incapacity of the jurors to read documents; whereas the continent could
adopt a more sophisticated system of trial, based on documents and administered by clerks.

Civil Law and Modern Codifications: the French Model -

As we have seen in the previous paragraph, continental law evolved as a jus commune of a
common empire, based on a theory of the Justinian compilation both as sacred and as rational.
Of course, the destiny of this political theological complex was to come to an endwith the
growing antagonism of France, Spain and Germany, and especially with the 30 years war
(1618-1648) of religion following the protestant reform.

It is out from this war that emerged on the continent the idea of the modern sovereign state.
The inter-christian war was not terminable but in pure political terms: a sovereign absolute on
his territories deciding also the faith of his subjects. This rising of the local princes to the status
of absolute independent rulers fractured the catholic space of the empire into different
territories with different jurisdictions giving rise, with the peace treaty of Westphalia (1648),
to the modern system of inter-state relationships known as International Law. Each new
sovereign became like a local, territorial bound, piece of the fractured mirror of the global
universal authority of the empire, which was reflecting God’s government of the world. It is
quite natural, then, that from a concept of the Sovereign, as an absolute concentration of local
political power, emerged the idea that it was in the hand of this sovereign to ordain and establish
the laws of his realm; and since the imagery linked to Justinian was still that of him as the
template of the lawgiver, the various monarchies tried to follow his model in projecting codes
of a comprehensive, universal and rational character for their own domains. The first project
was that of Frederick I of Prussia, then performed by Frederick II, leading to a Project eines
Corporis Juris Fridericiani (1749–51), drafted by Samuel von Cocceji. The same name of the
project is displaying the Justinian ambitions of these modern sovereigns. This project led to the
so called Allgemeines Landrecht, or The general laws for the Prussian states finally codified in
1794 under the supervision of Svarez and Klein, who were under the orders of Frederick the
Great. This project is of extreme importance since it represents the idea that the sovereign state
can shape society at it wishes, that he has not only the political power of war and peace, but
also that of ordering society by legislation. In this way Justinian law which was really a
universal legislation served as a template for local legislations of the modern states, breaking
the previously prevailing universal conception of space. Following this German example,
Maria Theresa, Empress of Austria decided, about 1770, to charge a committee with the task
of preparing a Code of all her lands. After 40 years of preparatory works directed by Karl Anton
Freiher von Martini and Franz von Zeiller, this project was enacted in 1811 as the Allgemeines
bürgerliches Gesetzbuch (ABGB) the Civil Code of the Austrian-Hungarian Empire.

What happened in between was one of the real major breaks in all European political history:
the French Revolution. From a legal point of view, the revolution captured the sovereign within
the State, making him no longer the possessor of the state, but one if his constitutional organs
and finally sentenced the King to death for High Treason, conferring an all-mighty power to
the popularly elected legislative assembly. The revolutionary government went on performing
a complete subversion of the existing law, hooting almost the 75% of judges, dissolving the
Bar, and closing all the law schools.

The new faculties of law were founded, the legal profession was completely reorganised, and
a new judiciary was established inventing the modern pyramid of courts we can find in every
civil law jurisdiction. It is made of many Tribunals, in quite every district ,to judge on cases of
first instance; then of fewer Appellate courts to review their judgments, and finally of one Cour
de Cassation established to grant a uniform application of the law.

Meanwhile many measures were adopted to grant a legislative unity of the State, and at the end
of the revolution, when Napoléon I became emperor, on 21 march 1804 he installed a The
whole apparatus to reach this goal was once again derived from Roman templates. After all the
revolution was conceived to re-establish a kind of “Roman Republic”, giving back to the people
all the powers and prerogatives usurped by the kings and the church; and the first title assumed
by Napoléon himself was that of First Consul of this polity. He participated to the most of the
discussions in the committee and imposed a literary style to “his” Code inspired by the
principles of brevity and clarity, as it was thought to be a code for the commons and not for the
specialists. This same code became to be surrounded by a constellation of other codes: the
Penal code, the Code of civil procedure, the Code of commerce and the Code of criminal
instruction. The civil code was divided into three parts :

Persons, Property and “the different ways of acquiring and transferring property”, a section
mainly devoted to contracts, torts, and unjust enrichment. The code is very liberal considering
marriage as a contract, defending property as an absolute right, shaping contract as an
agreement based on the free choices of the parties, and considering negligence as the basis of
any liability.

In this way France became the real model of any modern codified system, and her codes had
an immense impact on the other countries from Italy, Poland, Spain, Greece, to Latin American
legal systems, then to Egypt, Syria and many other systems in Africa and in Asia. So to speak
France is what we have in mind today when we speak of a civil law jurisdiction. Its main feature
are codes covering the whole of the legal field, and a judiciary diffused all over the country and
organised on the three levels of tribunals, courts of appeal and a central court of cassation.
commission to draft a code and, on the same year, he enacted the French Code civil, or Code
Napoléon, officially the Code civil des Français, as a real liberal constitution of the civil society.
It is important, here, to underline the pivotal role assumed by legislation confiding to it the
power to order society in all its details, because of its revolutionary political role. The center
of gravity of the revolution has been the legislative assembly, and the revolution was mainly a
revolution of laws, collapsing all the structures of the Ancien Régime, something which never
happened in England, where this ideology of legislation was rejected also by liberals like
Edmund Burke, in favour of a “sublime” conception of an oral law and an unwritten
constitution as instantiated in judicial decisions. Remembering, anyway, the extremely elite
nature of the English judiciary having only one High Court in London, with an appellate
division, submitted to the nine justices of the House of Lords (now called the Supreme Court
of United Kingdom). The French arrangement of the judiciary is extremely more diffused: the
English Law Lords are nine deciding approximately 60 cases per year; at the Court of Cassation
we find more than 150 judges deciding quite 7,000 cases a year.

The most important point is anyway that legislation, and the rational constructivist idea of the
possibility for it to design society, lies at the basis of the French legal system moulding also
the French legal style. Courts are rendering very brief decisions adopting the same style of the
code: almost one page long only, whereas an English or American decision can be also 40 or
50 pages long, reporting not only the impersonal view of the court, as a unanimous organ, but
all the opinions of minority and majority justices.

There is finally another factor to be remembered and which is normally underscored. Parallel
to the general jurisdiction the French system adopted a special Administrative Jurisdiction,
confined to cases involving the Public Administration, having its apex in a peculiar French
institution: the Conseil d’état. The very existence of this institution was singled out by authors
like Dicey as the major difference between the English and the French system. In this way the
common law idea of judicial review of administrative acts is not followed in France. Normal
judges have no jurisdiction over state acts: these can be questioned only behind the
Administrative Jurisdiction and the Conseil d’état, an organ whic is not only working as a court
but also as a counsellor of the administration in producing by-rules and acts. Under this respect
no two other systems could be more different.

Civil Law and Modern Codifications : the Rise of the German Model :

As we have seen Prussia had a code before France, but then the Napoleonic Empire extended
French domination all over Europe, transplanting French patterns and methods all across the
continent, up to when the French Army was defeated in Russia in 1812. The Germans lived the
time between 1812 to the final defeat of Napoéon at Waterloo as an era of national wars of
liberation against the French. After the Vienna Congress of 1815 Germany was restored but as
a constellation of 39 different sovereign states: Prussia, Schleswig-Holstein, Bavaria, and so
on. Anyway its “space” (Reich) was deemed unitary from the standpoint of sharing a common
culture, a common language, and a common university teaching. So attempts were made for
having also a common legislation overpassing the differences between the various states
notwithstanding the lack of a political unity.

Thibaut was an author who sponsorized the theory of adopting a German version of the French
code. His idea was rejected by the most prominent German law scholar of all times Frederick
von Savigny. In an outstanding article (Von der Beruf unserer Zeit nach die Gesetzgebung und
die Rechtwissenschaft) he traced a parallel between law and language (likely to be derived
from the Scottish Enlightment) in order to block the adoption of a foreign legislation. As the
language is a complex spontaneous order, so it is the law. Law and language are evolving orders
that no single group of human minds have consciously

designed nor can control. They are decentrated orders, like markets (Hayek). So it is impossible
and hazardous for legislation, as a consciously designed order, to try to mould the whole of
society. Society is different from the state, which is one of the many purposive organisations
pursuing their goals within society. It follows that the overall order of society cannot be
designed, but can only evolve piecemeal.

This theory is rather understandable if we remind that there wasn’t a unitary state in Germany,
so that effectively there was no possibility for a central authority to mould the law, nor there
was any unitary judiciary to promote it. What was unitary in the various German States was
the university system. A student could also spend a term in Munich and the next term in Berlin;
and what Savigny proposed, after the feelings raised by the very conception of the wars of
liberation to build up a newer Germany, was to entrust the development of the law to the legal
science (Rechtwissenschaft) as practiced by the German Professoriat. If law is like language,
and language is a depository of culture, it makes no sense to adopt a foreign law and destroy
our culture while engaging in liberation and the making of renewed Germany. Law and
language lie in the Spirit of the people (Volksgeist). Only a scholar can have a good insight
over it, because of his learning, and so to be able to produce a well conceived framework of
concepts to give it voice, creating a kind of scholarly made law (Juristenrecht) different from
both judicial made law and from legislation. And, after all, Germany was to be considered as
the real heir of the “space” of the Empire (Reich), and as such went on, and was going on,
elaborating the jus commune, the actualised version of the Roman law. This law was not a
piece of ancient history in Germany but an actual system of living law. In this way Roman law
was no more an alien system, but it really became, in many centuries, part of the national spirit.
Indeed Savigny’s major work was entitled Der System des Heutiges Roemishen Rechts, “The
System of the Actual Roman Law”.

Second draft. After significant revisions, the BGB (BuergerlichesGesetzBuch, Civil Code) was
passed by the Reichstag in 1896. Political authorities gave 4 years to the legal profession to
study and learn the new legislation, which was put into effect on January 1, 1900 and has been
the central codification of Germany's civil law ever since.

The BGB served as a template for several other civil law jurisdictions, including Portugal,
Estonia, Latvia, Japan, Brazil and Greece. It never had, anyway, the same world impact as the
French code. What had a tremendous impact all over the cili law countries was German
scholarship and the German method strongly influencing Italy, Spain, Latin America, and quite
all the jurisdictions that maintained a French like legislation. So, after all, also Germany
became a codified system, and quite all civil law jurisdictions can be deemed to be a “hybrid”
of French legislation and German scholarship. What is peculiar is that the two codes, French
and German, are really very different. The German code, especially, possesses a General Part
(Allgemainer Teil), which does not exist in the French code. In this General part we can find
all the general concepts to be adopted to grasp the specific parts devoted to contracts, torts, and
property. This different approach is obviously indebted to the fact that this code has been
elaborated by professors, and that they have been able to act as a unitary factor to reach a
national goal. Anyway the Gemans structured the judiciary in quite the same French way, and
maintained a sperate Administrative Jurisdiction as in France.

All this, the mixing of the French and German patterns, is giving to civil law, considered as a
general tradition, her intellectualistic flavour as well as her pro-legislation biased aspect. When
we speak of civil law jurisdictions, we mean systems that : 1) have codes; 2) have a similar and
diffused judiciary handling many more cases than a common law jurisdiction; 3) possess a
separate - seemingly pro-state biased - administrative jurisdiction, and 4) know a much stronger
and active role in legal development of scholars and universities. Notwithstanding this general
image of the civil law, there are some myths to deconstruct about the comparison of civil and
common law systems. First of all one is the myth that civil law is legislation, and common law
is a judge made law.

Today, the most of legal matters in common law countries are covered by statutory law.
Corporate governance, for instance, is always legislative also in these countries, as it is sale of
goods or secured transactions. On the other side it is true that the legislation of the continental
codes is very broadly conceived, so that the role of judges in developing the sense of the codes
cannot be underestimated. Case law is as important to understand a provision of a civil code as
it is to know what the common law is on a certain point.

Secondly, it is not true that legislation is a permanent and overwhelming factor in civil law
countries. They lived for centuries without codification, and we may find, as in the case of
Savigny, theories of the essence of the civil law which are directly antagonistic to the role of
legislation.

Thirdly, it is true that the civil law appears more “conceptualised”, for the role always played
by universities in her elaboration, but we cannot overpass the role of theory in the United States.
It would be hard to consider American law without considering that each case is based upon a
doctrine, and that it is much more American scholarship, than state case law, to give a picture
and a frame of what this law is, and to influence the rest of the world, as well as we cannot
bypass the role of great law schools in the practical organisation of the elite of the legal
profession, their ways of thinking, of elaborating solutions and so on. From a civilian
perspective an American piece of legal scholarship is much more based on theory than it is,
today, an average civil law writing displaying more erudition and knowledge than intellectual
claims. It is rather to be accepted that both families are a different compound of different factors
always acting, sometimes in competitive ways, in the legal history: legislation, judicial
decisions, and scholarly writings. The different mixtures of these elements is marking the
difference between France and England, but it is marking the difference between England and
the United States, also, as it marks a difference between France and Germany.

What is really different in common and civil law is the figure of the judge and the fact of having
a separate administrative jurisdiction. Judges in common law are fewer and decide a much
lesser number of cases. This is something in search for an explanation. There are approximately
6,000 judges in France and 600 judges in England. Besides a common law judge is an old
member of the Bar (UK) or she is directly appointed by the political power at state or federal
level (US). A civil law judge is the winner of a public competition for recruitment. It means
that you become judge when you are young, just maybe practicing the law for few years, and
then you make a judicial career from the last of tribunals to the chair of president of the Court
of Cassation, ehereas there is scarcely something as a judicial career in the United States, so
few being the case of persons appointed as State or Federal circuit judges then becoming
appointed at he Supreme Court. Under this respect the two systems cannot be more divergent.
This factor depends heavily on the costs of justice. Civil law is cheaper, and that’s also why it
is normally longer; but no serious attempt has been made to understand precisely why, and
certainly does not depend on Roman origins.

The fact of having a separate administrative jurisdiction is also of extreme relevance. This fact,
again, cannot be traced back to the Roman origins of the civil law systems; rather it is a
byproduct of political modernity: the rise of an absolute state on the continent, and the absence
of a political upheaval similar to French revolution in the common law world. It is strange to
note the following paradox : in common law ordinary jurisdiction is much more politicized in
the sense that the judge can be appointed directly by the political power, but the civil law is
granting more room for state action by creating an administrative compartment separated from
ordinary jurisdiction. But is the separation of ordinary and administrative jurisdictions
connaturate to a civil law

tradition ? One could really wonder. For centuries, again, there was not such a separation, and
it is much more likely do be due to the form assumed by political power on the continent of
Europe than to deep legal structures linked with distant origins. Finally what is certainly
absolutely distant, even today, is the style of these two families of laws. There is scarcely any
similitude between a French and an American judicial decision, as there is not a common way
to handle precedents, and also the modes of interpreting statutes is rather distant. In a sentence
we could say that the apparently politically flat world of globalisation in still striped , fractured
and discontinued by the legal styles. To what extent, if any, these legal styles have an economic
impact is a question open to investigation. What it certainly represents is a legal duality of the
West, and especially of Europe, displaying two different appearances of what we call Justice,
rendering any work for harmonisation harder than expected.
COMMON LAW-

Common Law’ means law which is commonly applied. But that is not the meaning of the term
‘Common Law’. ‘Common Law’ is the name of a family of different legal systems of the world
which follow common features and traits albeit with small deviations. Those common features
which are shared by a member of the family of Common Law are:

(a) authority of the judgments delivered by higher courts and tribunals;

(b) composition of judicial institutions;

(c) adversarial system of court proceedings, and the role of judge, and

(d) the importance of Acts, Statutes, and other legislations passed by competent authorities.

Common Law System has influenced the development of many legal systems of the world,
such as India, England, U.S.A., Canada, and Australia. Actually, the origin of Common Law
is believed to have been in England and so wherever the British Empire spread its sovereignty,
the Common Law System was imposed. We will discuss and understand the four common
features of this legal system briefly in the following paragraphs.

(a) Authority of the judgments delivered by Higher Courts and Tribunals: In

‘Common Law System’, you would observe that the judgments rendered by the High
Courts and Supreme Court (or the Superior Courts) enjoy authority and powerful
position. Those judgments have to be obeyed by the lower Courts and Tribunals in a
similar case as the decisions of higher courts enjoy authoritative power in law. If the
lower courts would not abide by the decisions of the higher courts, the judgments of the
lower court can be challenged and it may become a nullity. Do not think that this feature
is present in other legal systems. Other legal systems do not place such reliance on the
authority of the judgments of the higher Courts. So the judgments of High Courts or
Courts of higher/appellate jurisdiction may not be authoritative or binding on lower
Courts in a legal system which is not a member of Common Law family. The authority
of judgments of the higher Courts is given the technical name ‘judicial precedent’.
Thus, we can say that the judgments of higher courts are judicial precedents and they
must be followed by the lower Courts in similar cases. For example in India, the
judgments of Bombay High Court are ‘judicial precedents’ for all the lower Courts
coming under the jurisdiction of that High Court and they are bound by it. India is thus
a member of Common Law family of legal systems.
(b) Composition of Judicial Institutions: Second common feature of the Common Law
family is that the judges of the Courts are highly skilled persons who have specially
studied the discipline of law and possess practical experience in legal administration
either as advocates or judges. A judge, in other words, cannot be a lay person or even a
scientist. He must be a person of legal background, either as an advocate or a judge or
at least with a degree in law. This feature of Common Law makes the judicial
institutions a separate set of professional persons. This might be one of the reasons why
the judgments rendered by them are technical and based upon the finer details of the
bare provisions of law. This leads to a better quality of judgment due to which these
judgments carry authority when they are rendered by experienced judges or advocates.
As an example, you can say that in India the judges at the trial Court or District Court
are selected on the basis of an entrance examination where the minimum eligibility is a
degree in law and the judges of High Courts and Supreme Court are selected from
among those with at least 10 years of practice as advocates or judges. Persons outside
the legal background cannot become judges of the State or Central government. So, the
social background of judges in Common Law system is not diverse, but very limited.
(c) Adversarial System of Court Proceedings and the role of Judge:Another feature of
Common Law system is that the Court Proceedings are focused on the adversarial
nature, where the disputing parties have engaged advocates who act like adversaries in
the court of law and each advocate fights tooth and nail against the other in order to win
the case. The judge in the court acts like a neutral observer listens patiently to the
advocates of each party. You might have seen in the films that the judges say ‘Order,
order’, when there is commotion in the court or the advocates start leveling comments.
That is not exactly the power of the judge in the ‘Common Law System’, but the judge
does not play an active role in going beyond the evidence presented by both the
adversary advocates. They depend upon the skills of the advocates who present their
best possible case before the neutral judge. It does not matter to the judge whether the
truth of the matter has been revealed by the advocates in the case or not. He/she has to
be satisfied on the evidence presented by the advocates only. He/she does not take any
interest in establishing the truth underlying the claims of the disputing parties.
(d) Acts, Statutes passed by Competent Authorities:A very important feature of Common
Law system is that though the legislations passed by competent authorities such as the
Parliament and Legislatures are given an authoritative place which is binding on the
judges, whenever the judges find any gaps in the Acts or Statutes passed by the
 Parliament, they can make suitable interpretations to fill the gap in these Acts. In other
words, the judges and advocates of the Common Law system would think that the Acts
are very abstract and the rules contained in those Acts are very general in nature. These
general and abstract rules are incapable in themseves to be applied in all facts and
circumstances. Facts of every case would be so peculiar that it would be very difficult
to apply the general and abstract form of rule which may need suitable additions and
interpretations. That addition and interpretation is as important as the bare provision of
general and abstract law. For example, the punishment prescribed by the Act passed by
Indian Parliament for the commission of murder ranges from life imprisonment to death
penalty. However, it has not been prescribed in what situations punishment would be
life imprisonment or death. The judges have filled this gap and made their own addition
into the law by holding that the ‘rarest of rare cases’ would be suitable for the death
penalty whereas the others would only get life imprisonment.

The origin of the common law-

The common law was a historically deemed term that meant a law common to the
people of England, controlled by the Royal courts.However, this essay also considers
the development, through history, of the common law to another understanding as the
body of law created by judges, and in that sense the law not created by equity or statute.
Without a power platform for upholding and legitimising the law making decisions of
the judges there would have been little chance for the common law to be created or
maintained. Development of a hierarchical and centralized system of the courts,
originally empowered by the kings and later the parliament, was the fundamental basis
from which the judge made common law was enabled and maintained. Today this
hierarchical platform is still in place and understanding how it continues to legitimise
legal decisions is important.
From this centralised court system developed a procedural method of deciding legal
outcomes in a consistent but continually restated way through the courts and their
decisions. This was based on a culture and method of adversarial argumentation
between the parties in disagreement, originating through the writ system and
developing into the current system that is known as precedent.
This detailed procedural system requirement had the need for legal professionals that
were skilled in understanding, arguing and applying the law on behalf of clients in the
various court settings. Their association and internal scholastic approach would ensure
legal procedural consistency and development of record keeping, which are critical to
the common law courts and its procedures.
Legal Platform
The commonly accepted historical understanding is that the basis for the foundation of
the common law dates back to the Battle of Hastings in 1066, and the beginning of the
Norman rule of England by William I. Before this time there was a system of
uncentralised Anglo-Saxon law in the entity known as England, where as well as the
Court of the King, witenagamot, each county would separately rule in disputes, in their
own courts, according to their local customary law, through the Shire and Hundred
Courts.This community centric law was seen as well accepted by the communities that
it served and importantly provided the basis for control of the people.
William I required control of the whole of the kingdom of England to retain his power
and income, and as such allowed the inherited system of local customary laws to
remain. However, he ensured that his representatives, the sheriff’s, policed Shires.The
Normans were no strangers to administration of lands as they were already an
established system of control over the realm of the Franks, and William I would impose
a modification to the traditionally developed system of feudalism to take administrative
control adding the locally functioning feudal Baronial and Manorial courts. Feudalism
was by its nature a hierarchical system of power and social control based on land tenure,
and mutual benefit through income and military support passed upwards, and the Kings
protection downwards. The English feudal system had the King at the top of the tree
with control over the entire Kingdom of England, nobles who sat next in line as tenant-
and-chief were wealth land-owners by decree and plead of allegiance to the King, and
below this were various tenants of the land.This hierarchical system has endured and
ensured power and central control of the common law.
William I set up the Curia Regis, or King’s Court, to stand side by side with the feudal
courts, ecclesiastic and custom law courts, and would travel with the king within the
realm, to hear petitions of his subjects, before he would rule. During the twelfth and
thirteenth centuries, greater numbers of individuals would seek the kings justice due to
dissatisfaction with the local laws, which they saw as unfair and unjust.The king began
to leave decisions that could be dealt with under existing laws to the autonomy of the
curia regis, and to enable his obligations to be met the king began to appoint ‘justiciars’,
or judges, whom were official representatives of the King, knowledgeable about the
law.
Over time a split of the curia regis occurred, one part became a permanent body of
justices of the Curia Regis, formed to hear the ‘common pleas’, and became known as
the Bench of Common Pleas. This Court would no longer travel with the King and
would sit in a central location at Westminster, as ratified by the Magna Carta.The other
part was the ‘Justices in Eyre’, effectively as a sub-branch of the curia regis. These
itinerant judges would travel to various regions of the country, known as ‘circuits’, to
resolve disputes on behalf of the king and would apply law consistently. The idea of
this was to replace the local courts with authoritative courts of the king that were
accessible by the people, and it is notable that the decisions, not reasoning, of these
courts were recorded. As such the body of law created by these judges formed much of
the basis of the common law.
Two other courts, formed from the curia regis, that were important for the basis of the
common law being developed were the Court of Exchequer, which was primarily set
up of advisors to hear disputes of a financial nature, and secondly the coram rege, or
Kings Bench who were kings direct advisors, responsible for business affecting the
king.
Thus the three common law courts had developed, all empowered by the king, and all
operated by professional judges who were knowledgeable in law and able to dispense
with the same (common) law across the realm. This centralisation of the courts enabled
a small group of legal individuals to flourish, developing a legal procedure that was
repeatable and controllable, empowered initially by the king. It is true that there were
numerous other courts that were developed for other areas of law, such as equity,
admiralty and ecclesiastical, and that these other courts had to find a functional balance
with the common law and vice versa, and also integrate statutes from the king and later
parliament, but the three common law courts, and revisions of like over the next four
centuries, ensured the platform for the development of the common law.
Roll forward to the late seventeenth century as the next major development in the
platform for the common law is seen when parliament took over from the monarchs as
being the legitimate power source of law and installing the crown by consent, following
the Glorious Revolution which overthrew Charles II and installed William of Orange
to the throne.This is to state that the Parliament, through the power installed in it by the
people, could now enact laws, normally in the form of statutes or acts, which were by
royal decree so as to maintain the common law platform.The Parliament was first called
in 1265 by Simon de Montfort as an advisory body to the king, where the House of
Lords was made up of the noble hereditary land holders, and popular representatives
from the counties and boroughs in the House of Commons. Even though the actual
make up and selection criteria of the representatives may have changed, especially in
the House of Lords, this is still the same basic two-chamber model of government that
can be seen in Britain and Australia today.
From the eighteenth century the parliament modified the structure of the courts to
remove some of the excessive divisions that had occurred since the thirteenth century.
In England the Court of Common Pleas, Exchequer, King’s Bench, Chancery and
Admiralty were removed under the Judicature Act 1873, and were replaced by two
courts, The High Court and the Court of Appeal.These new courts were divided into
five divisions representing the old courts that had been replaced, notably returning the
courts to a clearly hierarchical system where the common law jurisdictions could be
centrally administered, with the House of Lords maintaining its importance as the
highest court of appeal in the land.
Australia inherited the English law in 1787 through Governor Phillip’s commission,
and set up a court system based on the English system in New South Wales and what
became Tasmania.The other states followed a similar path in their formation, as they
inherited the structure and body of English law at the time of colonisation.Over the
decades that followed versions of the Judicature Acts in England were also enacted in
Australia giving each state a similar structure to that in England invested in a Supreme
Court. In Australia it would be remiss not to mention the additional level of hierarchy
added through the Australia Constitution and the judicial power being vested in the
federal High Court and federal courts,with final appellate review vested in the High
Court. The last relevant point here is that until the Privy Council (Appeals from the
High Court) Act 1975 the relevance of the right to appeal to the English Privy Council
meant that Australian law was inextricably linked to English law.
Thus the hierarchical structure and platform for the centralized legitimization,
development and maintenance of the common law, with its parliament, courts, decree
by crown and professional judiciary that is still relevant today had been set in place.
Legal procedure
Churchill is believed to have said to the Queen ‘always remember the further back you
can look, the further forward you can see’, and the relevance of historical decisions in
the English common law system can not be denied when examples of the 1352 Statute
of Treasons is still relevant in cases tried in the twentieth century.Through the
procedure that began in the thirteenth century the body of the legal decisions that are
the common law was built, and it is those procedures that still govern the methods by
which the system functions and grows.
The writ system from the twelfth century was not a new system developed by the
Normans or the common law courts, but it was a system that complimented the method
of formalizing the delivery of justice in the hierarchical centrally controlled system.
The person seeking a legal decision to be reached over a dispute, called the plaintiff,
would apply to the kings representative in the Chancery and purchase a writ. From this
the requirement to bring the person whom the legal decision was to be made against,
called the defendant, would be organized by the kings representative in the Shire, the
sheriff.
The writs were very specific in regards to the action that was to be brought, including
details such as time limit, modes of proof, enforcement etc., as such many new writs
were being constantly issued.The writs greatly expanded the ability for a plaintiff to
bring a case against a defendant, and began to build sequentially as new courses of
action were sought, as it was believed that ‘if some wrong were perpetrated, then a new
writ might be invented to meet it’. One of the most common writs was that of trespass,
of which there were numerous categories, and were applied very mechanically and
required a show of directness. For example if a woman had lost her hand after being
treated carelessly by direct contact from a doctor then her cause of action of trespass
might be upheld,however, for example, the doctor may not be guilty of trespass if she
had lost her arm where a friend had administered the treatment upon the doctors advice,
as the action by the doctor would not have been direct.
Relevant to the hierarchy of the courts, was the right of appeal that was formed initially
through writ procedures. This was not necessarily as it is understood today as the courts
of the time were still highly centralized, however, a person had the right of appeal if
they believed the court had been mistaken in its judgment through the writ of error.
Additionally, appealing to a higher court, such as the Kings Bench, was available
through the writ of certiorari.
Perhaps the most important point borne from the early instances of the kings courts and
the writ system in the common law was the birth of stare decisis, or that each case
should be treated alike, and the birth of the doctrine precedent. Precedent is contained
in judicial decisions on an ever-increasing volume of individual, but sequentially
decided, legal cases. Precedent also relies on the hierarchical nature of the courts where
a reason for a decision in a court higher in the hierarchy is binding, otherwise known
as the ratio decidendi.Other parts of the case that are not specifically relevant to the
decision and the ruling can help guide future cases are said to be obiter dicta. It is said
that the ratio decidendi of a past case may not be apparent until the decision in a future
case, so deciding between the ratio decidendi and obiter dicta can be difficult. The
procedure followed by the judges in interpreting and creating the precedent, and the
barristers in the typical adversarial arguing method, is for the barristers to propose
alternative arguments on the current facts of the case in past precedent, and the judge
to use analogical and deductive reasoning to discover the relevance of past precedents
to any current case. This procedure of discovering the rule of law in a case has created
the main body of the common law, and has led to the development of many legal
principles.
As the legal procedural system moved past the medieval period and into the eighteenth
century this procedural development became a more significant. However, it is still in
the procedure of the writs that one starts to see the ability for the common law to adapt
to the requirements of society, and also for society to adapt to the common law. In 1258
the nobles, concerned about the proliferation of the writs, pressured the king to stop the
flow of new writs, and in the Provisions of Oxford new writs were prevented from
issuing.An interesting legacy developed from this as the judges began to allow legal
fictions, or untrue facts, to enable new types of cases to be brought before alternative
courts, either of common law or otherwise. It is argued that these legal fictions allowed
a large body of law to be created outside the common law courts that were subsequently
appropriated by the common law courts.
Moreover, a form of legal fiction has been important and forms part of the culture of
legal argumentation relevant in order to curtail strict precedent that might be out of step
with developing societal norms. It is primarily where a story is proposed as socially and
legally acceptable, although alternative, ‘fiction’, to the story told by precedent in order
to create a new precedent that is in agreement with existing precedent, but always
seemingly based on the facts of the current case.
The development of product liability over the centuries is perhaps a good example of
how the legal procedure in the common law courts develops new posited law, with the
use of legal reasoning, including fictions. A famously relevant case is often used to
show how the common law developed the basis of product liability. In 1932 in
Donoghue v Stevenson the plaintiff brought a case against the manufacturer (defendant)
of a ginger beer, which had been purchased by a friend for the plaintiff from a local
shop. Upon consuming the drink the plaintiff noticed remnants of a snail in the bottle
and subsequently became quite ill. The Court found that the manufacturer was liable in
negligence even though there was no direct contract between the manufacturer and
plaintiff, or even the shop and the plaintiff. This case was decided through the legal
procedures such as using past precedent, barrister argumentation, and judges through
their legal reasoning. In this case Lord Aitken famously developed the ‘neighbor
principle,’suggesting that who in life is my neighbor should also be precisely who in
law is my neighbor, and as such any acts or omissions that injure my neighbor are my
responsibility. Thereby creating a believable fiction to enable the court to reach a rule
that modified and agreed with prior precedent. The ratio decidendi reached in the case
being that a manufacturer is liable to a duty of care to the ultimate consumer, where
that consumer has no prior chance of product inspection.
This was not as simple as deciding the product liability rule only on the facts of the
Donoghue case, as there had been developments since 1837 in prior precedent that
gradually removed the directness of contract and liability between the plaintiff and
defendant as being the only course of legal action, and opening up indirect actions in
negligence, where each case built upon sequential use of the prior precedents. In 1837
in Langridge v Levy the Court decided there was a duty of care on the plaintiff because
of the “consequences of fraud” rather than a direct liability to the plaintiff. In 1842 and
Winterbottom v Wright the plaintiff relied on the Langridge case, however the judge
denied this finding no directness of contract between the parties, and noted concerns
that allowing the alternative action might open the legal floodgates. In 1869 and George
v Skirvington the judge finds no liability in contract, but creates a linkage between
‘fraud’ and ‘negligence’ seeing the two as similar in the context. Lastly in 1883 and
Heaven v Pender the judge found for the plaintiff in negligence, noting that there is a
duty from one party to another even where there is no direct contract, and that a duty
of care must be given by a supplier to ensure goods that are used avoid creating danger
to another.
Today the process of the judicial decision making with its legal reasoning, barristers
with their adversarial legal arguments, and the hierarchy of courts driving commonality
of legal precedent is key in the development and maintenance of the common law.
Legal professionalism and the protection of the common law
The essay discovered earlier that professional judges developed out of the requirements
of the centralisation of the court systems. It should be noted that this professionalism
of judges was the requirement of the kings common law courts and not those of the
remaining lower courts such as the Local, Shire, Baronial, Manorial that were governed
by local or untrained authorities, or the developing County Courts that would replace
them with its justices of the peace to sit in judgment. The trained judges were loyal to
the king and were well-educated scholars generally from a religious background.
With the highly technical procedure, required initially by the writ system, and
additionally because of the centralization of the Court of the Common Pleas to
Westminster, began the development of, and the requirement for, the barrister. The
barrister, grew to become a specialist legal professional from a generalist type attorney,
skilled in the law and its procedures including the argumentation in the courts, and were
located in London. This group of professionals also started to appear in the twelfth
century, as a direct financial consequence to clients wanting to have their cases heard
in the Court of the Common Pleas, but not wanting to personally travel to London or
wait for the inconsistent visits of the itinerate justices to travel with the Kings Bench to
a local circuit.In this way the barrister became the clients legal representative in court
and would argue the merits of the case, in front of a judge.
Around this group of legal professionals grew a voluntary association that would
develop the group of legal professionals, from students to barristers, where the best
barristers would be selected to join the judges on the bench. These associations were
known as the Inns of Court of which there were four related to the common law courts;
Lincoln’s Inn, Inner Temple, Middle Temple and Gray’s Inn. A prospective student
was from an exclusive background, generally a son of a ‘gentry’ or ‘bourgeoisie’ and
is said to have been able to choose between any of the Inns. The Inns provided the
training ground for the specialist legal professionals who grew through the mutually
exclusive requirement of the centralized court and procedural system of the common
law, and up until the nineteenth century it was still rare that a student would pass
through a formal university education. A student of the Inns would follow a set path of
study and legal assistance to a barrister, before being ready to be accepted to the bar
himself, and possibly eventually becoming a judge. Today the English Inns of Court
still exist and these Inns retain jurisdiction over the behavior of its legal professionals.
Another important legal professional that developed during fifteenth century was that
of the solicitor. This grew out of the requirements for more generalist advice to be
locally available to legal clients, and these solicitors would, as they do today, offer
advice prior to the requirement for a barrister and assist barristers when required.
One of the important aspects of the common law was that for many years the record
keeping of the ratio decidendi were not routinely recorded. Even so it was said by
Glanville that even though the laws were not recorded they were still laws. As the ratio
decidendi was omitted by the courts, and stare decisis being required, it became
necessary for the legal professionals to maintain private records, or log books, which
retained the information of the judges decisions. A number of these private records are
still seen as so instructive that they have been used as reference in cases. For example
those of Glanville and Bracton advising on writ procedure in the twelfth and thirteenth
century, and those of Sir Edward Coke, and Sir William Blackstone who’s
commentaries on the laws of England are very detailed. From 1865, following from a
supposedly self-interest of the bar, the system of the courts reporting the reasons for
their decisions became the standard. The reporting process was through officially
appointed reporters who would complete the reports subject to the approval and edit of
the residing judge. This enabled the legal profession to access significant data from
which to build arguments from precedent and to and rule in future cases.
This system of legal professionalism, produced from the historical development of the
common law, is still operational in Australia today, where barristers are accepted to the
bar and reside in ‘professional chambers’. The barrister offers his or her specialist
services to clients, normally through referral from the client’s solicitor. The barristers
continue to argue matters in front of judges on the behalf of their clients and are assisted
by their readers and solicitors, whether the client appears at the court or otherwise.
Through history this group of legal professionals is said, perhaps through its
conservatism, to have protected the common law system from being replaced by other
systems of law such as a civil code, statutes or revolutions. Others have suggested that
it is more a case that these groups and the crown have protected the institutions so dearly
as a requirement for financial prosperity.Either way there can be no argument that the
common law has sustained longer than any other western system of law, and that this
group of professionals has been, and remain, imperative to its function.
 CONSTITUTIONALISM
The concept:
According to George Will, “The essence of constitutionalism in a democracy is not
merely to shape and condition the nature of majorities, but also to stipulate that certain
things are impermissible, no matter how large and fervent a majority might want them.”
Constitutionalism is a legal philosophy that describes the nation's people's lives, values,
beliefs, and ideas. The liberal concept of constitutionalism rests on two main pillars,
i.e., limited Government and guarantee of individual rights. It is a liberal idea in
Western countries that states that government should be governed according to the law.
Other ideas based on this concept include government accountability, constitutional
democracy, separation of powers, rule of law, and judicial independence, to name a few
. In short words, Constitutionalism is a complex concept with a long history that binds
politicians exercising their authority to the constraints of a higher law Classification of
constitutionalism: Constitutionalism, or the restriction of government power, can be
accomplished in two ways. Political constitutionalism and legal constitutionalism, to
be specific. Legal constitutionalism: The concept of constitutional rights is central to
legal constitutionalism. The power of the governing system is limited by legal
constitutionalism. Governments can abuse their power in accordance with their
discretionary powers, and they can also interfere with people's rights and liberties,
namely mistreating opposing political parties or their supporters. To prevent such
mistreatment, legal constitutionalism is in effect.Political constitutionalism: In this
concept, political power of government is limited through political mechanism. This
concept established some institutions by which the power will be limited. It includes,
decision making process, the electoral system can be chosen, Presidentialism or
Parliamentary democracy options, can choose between a unitary or a federal
government, mechanism of separation of power and check and balance, mechanism for
ensuring accountability of executive branch and legislative branch pf government of
government through judicial review.Constitutionalism have the principles of rule of law
to limited the power of government and to protect the individual’s freedom and as well
as right.
 Constitution vs. Constitutionalism:
The terms constitution and constitutionalism are synonymous, but the latter
encompasses much more than merely adherence to and execution of the national
constitution. The creation of a constitution is the result of years of progress and
evolution, but, in some cases like in Japan the constitution can be imposed by invading
or opposing forces, and may not embody the key values and principles that characterize
a society. Building on the differences outlined in the previous section, we can identify
few other aspects that differentiate constitution and constitutionalism. The key
distinction between constitution and constitutionalism is that a constitution is a set of
fundamental principles by which a nation or state is governed, whereas
constitutionalism refers to adherence to a constitutional governance system.
Constitution mainly refers to legal document which set forth rules to maintain the rights
and obligations for its government and its people, Constitutionalism rendered to
ideology to establish institutions and beliefs to save the people from arbitrary use of
power.The basic purpose of a constitution is to successfully apply the rules, and
constitutionalism serves as a checking for the attainment of that goal. Constitution
refers to a specific noun, whereas constitutionalism refers to a wide concept. The
concept of constitutionalism has arisen around the principle that the government's
authority is drawn from and limited by a system of rules and regulations, which has
altered greatly since the earliest examples seen in ancient Greece.the constitution and
constitutionalism as a document established the orders for establishing a democratic
way to choose a lawful government, while constitutionalism limited the discretionary
power of government and established judicial review functions to check on the use of
governmental organs' power.

Essential Features of Constitutionalism:

While the specifics of constitutionalism can vary from country to country, there are several key
features that are generally consistent:

o A Written Constitution: A codified, written constitution is often a key feature of a

constitutional state. This document outlines the principles and rules that the government
must follow.
o Separation of Powers: As previously mentioned, the principle of separating powers
between different branches of government is central to constitutionalism.

o Rule of Law: Constitutionalism upholds the idea that every citizen, including
government officials, is subject to the law.

o Protection of Rights: The constitution often includes a bill or charter of rights that
outlines the fundamental rights and freedoms of citizens.

o Judicial Review (Independence of judiciary): This is the process by which courts can
review the actions of the government to ensure they are constitutional.

o Regular Elections: Regular elections are a fundamental feature, ensuring that the
government remains representative and accountable to the people.

WRITTEN CONSTITUTION-

A written constitution is a codified document that systematically records the principles,

rules, and framework governing a nation or state. Unlike an unwritten constitution,
which is derived from statutes, conventions, and judicial decisions, a written
constitution is consolidated in a single formal document or a series of documents.
Written constitutions establish the legal foundation of a state, defining the roles and
powers of government bodies and enshrining citizens' rights. Prominent examples
include the United States Constitution (1787), French Constitution (1958), and Indian
Constitution (1950).

Features of a Written Constitution

1. Codification: Exists in a single document or set of documents, codified to promote

accessibility and clarity.

2. Supremacy: Recognized as the highest law; all other laws must align with it, and any
law contrary to it can be invalidated by judicial review.

3. Rigid vs. Flexible Amendments: Written constitutions are usually harder to amend,
requiring special processes to make changes. However, some countries include flexible
provisions that can be amended more easily.

4. Rights and Duties: They typically enshrine civil liberties, rights, and duties of citizens,
setting limits on governmental power.
 5. Interpretative Authority: The judiciary often holds the power to interpret the
constitution, ensuring laws align with constitutional principles.

Examples of Written Constitutions

• The United States Constitution (1787): The first written constitution, emphasizing a
rigid amendment process, federalism, separation of powers, and the Bill of Rights.

• The Indian Constitution (1950): The world’s longest written constitution, combining
elements from various other constitutions, including parliamentary sovereignty and
judicial review.

• French Constitution (1958): Establishes a semi-presidential system and promotes

checks and balances between the President and Parliament.

• South African Constitution (1996): Highly progressive, especially in its Bill of

Rights, recognizing a wide range of civil, political, economic, and social rights.

Advantages of a Written Constitution-

1. Clarity and Accessibility: Codification makes the constitution readily accessible,

reducing ambiguity and providing a clear reference for laws and governance.

2. Predictability and Stability: By establishing fundamental laws and processes, it

prevents arbitrary government changes, creating a stable legal framework.

3. Rights Protection: Enshrines fundamental rights, giving citizens a clear basis for
protection against government encroachment.

4. Judicial Review: Courts can interpret and ensure that laws comply with the constitution,
providing a check on legislative and executive actions.

5. Checks and Balances: Helps establish a system of checks and balances to prevent abuse
of power and promote balanced governance.

Source:

1) https://constitutionnet.org/sites/default/files/what_is_a_constitution_0.pdf
2) https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf
3) https://archive.blogs.harvard.edu/mparrington73/2016/03/16/a-short-history-of-the-common-law/
4) https://digital.nios.ac.in/content/338hi/338_Introduction_To_Law_Eng_L2.pdf