Civil law and Common Law are terms used interchangeably in Pakistan, however, both legal concepts are diverse and relate to different methods of legal interpretation. Civil Law is referred to as a system of interpretation where judicial precedents are given lesser weight as opposed to a judge’s interpretation of the statute in light of scholarly literature which is afforded greater preference. Common law is a system of laws where judges in light of earlier precedents or cases decide the matter at hand. They apply to analogy or principle derived from earlier decided cases with similar legal or factual scenarios. This affords much greater certainty to legal decisions. For instance, a litigant can to some extent predict outcome of his case particularly when a court higher in the hierarchy has decided a similar case. The lower courts are often bound by decisions of the higher courts. This is referred to as the concept of binding precedents.
As a general rule of thumb, common law systems trace their history to England, while civil law systems trace their history to Roman law and the Napoleonic Code.
Common law is law developed by judges through decisions of courts and similar tribunals (also called case law), rather than through legislative statutes or executive branch action. Common law of England evolved from the rules and practices of the community, which are gradually formalized by decisions made by judges. The term ‘common law’ distinguished it from local laws, the canon laws of the Roman Catholic Church (which until the Reformation in the sixteenth century, was the established church in England), and the ‘law merchant’ practiced in mercantile courts.
In the Anglo Saxon period (roughly the fifth to the eleventh century) the principles applied in the courts were based on the customs of the local community as declared by the freemen of those communities, who acted as judges. After the Norman Conquest of 1066, the Kings judges gradually established a body of general principles based on the many local customs. These principles were applied uniformly during the judges’ periodic circuits through the country and later at the royal courts in London – the courts of Common Pleas, King’s Bench and Exchequer.
In order to achieve consistency, the judges placed great reliance on previous judgments given in similar cases. This practice has given rise to the doctrine of judicial precedent on which all law, other than legislation passed by Parliament, is based. Judges are bound to follow the decision of the courts above the in the hierarchy, and the appellate courts are generally bound follow previous decisions at their own level.
Since Pakistan was a British Colony, it inherits a legal system that was present in Britain. English courts had evolved the law case by case, and English lawyers derived their law from the reports of the judges’ decisions rather than from jurists’ writings.
Due to this fine distinction, it is far more important to assign your case to a lawyer well conversant with the case laws and statutes, since these precedents form the main basis of decision in Pakistani Courts. Most of the case law is and was developed through interpretation of statutes it is also a imperative for a lawyer to have keen eye on Statutes and change proposed in them for resolving of civil dispute.
ADJUDICATING COMMON LAW CASES (CIVIL LAW DISPUTES)
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.