COMMON LAW OR CIVIL LAW IN PAKISTAN. LAW APPLICABLE!!
There is a fine distinction between Civil Law and Common Law, however the same are used interchangeably in Pakistan and most countries of the World. Pakistan was a colony of the British Empire pre partition therefore, Common law systems were inherited by Pakistan which places greater weight on court decisions, as opposed to civil law where judicial precedent is given less weight (which means that a judge deciding a given case has more freedom to interpret the text of a statute independently, and less predictably), and scholarly literature is given more. 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. 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.
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.
COMMON LAW CASES (CIVIL DISPUTES) BROUGHT INTO PAKISTANI COURTS?
Common Law seeks to resolve non-criminal disputes such as disagreements over the meaning of contracts, property ownership, divorce, child custody, and damages for personal and property damage. A civil court is a place where people can solve their problems with people peacefully. The function of civil law is to provide a legal remedy to solve problems. Sometimes civil law/common law is based on a state or federal statute; at other times civil law is based on a ruling by the court.
Civil law covers a wide spectrum of topics. Some of these topics are:
- CONSUMER LAW
- INTERNATIONAL LAW
- AGRICULTURAL LAW
- EMPLOYMENT LAW
- ANIMAL LAW
- ENTERTAINMENT LAW
- BUSINESS LAW
- FAMILY LAW
- SPORTS LAW
- TAX LAW
- INTENTIONAL TORTS SUCH AS LIBEL, SLANDER, DEFAMATION OF CHARACTER, BATTERY AND ASSAULT.
CAN MASOOD & MASOOD EXPRESS OPINION PROR TO A COURSE OF ACTION AND HELP PREDICT COMMON LAW OUTCOMES
Yes, the reliance on judicial opinion is strength of common law systems, and is a significant contributor to the robust commercial systems in Pakistan. Because there is common law to give reasonably precise guidance on almost every issue, parties (especially commercial parties) can predict whether a proposed course of action is likely to be lawful or unlawful. This ability to predict gives more freedom to come close to the boundaries of the law. For example, many commercial contracts are more economically efficient, and create greater wealth, because the parties know ahead of time that the proposed arrangement, though perhaps close to the line, is almost certainly legal.
In case you would like our assistance in a legal dispute entailing common law practice or just want us to opine on the balance of probabilities, do let Masood and Masood know at your earliest convenience.