Kara Sears
Pakistan's legal system is a common law system, based on the common law of England and Wales. When Pakistan was formed in 1947, it inherited two types of laws: British common law for the 'settled areas' of Sindh, Punjab, and other regions, and the Frontier Crimes Regulation (FCR) for the 'unsettled' or 'tribal areas'. The Pakistani legal system has evolved since then, with the influence of Islamic Sharia law and local customs, but it remains a common law system with adversarial court procedures and the recognition of judicial precedent. Common law refers to a system of law based on past judicial decisions rather than statutes passed by legislatures, and it plays a significant role in Pakistan's legal framework.
| Characteristics | Values |
|---|---|
| Basis of Common Law | Past judicial decisions, not statutes passed by legislatures |
| Influence | Influenced by the common law of England and Wales |
| Court Procedure | Adversarial |
| Practices | Judicial precedent, stare decisis |
| Criminal Law | Codified |
| Civil Law | Codified |
| Jury Trials | Phased out |
| Legal System | Inherited from British India |
| Sharia Law | Incorporated into Pakistani law |
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What You'll Learn
- Common law in Pakistan is based on the common law of England and Wales
- The Pakistani legal system inherited British common law and local laws
- Common law is based on past judicial decisions and not statutes passed by legislatures
- Common law is also known as case law
- Common law has equal footing with statutes and regulations
Common law in Pakistan is based on the common law of England and Wales
The law of Pakistan is the legal system in place in the Islamic Republic of Pakistan. Pakistani law is based on the legal system of British India, which itself is based on the common law of England and Wales.
The Pakistani legal system is a common-law system, with an adversarial court procedure. It follows other common-law practices, such as the recognition of judicial precedent and the concept of stare decisis. The term "common law" refers to the fact that this system was common to all of the king's courts across England. The foundation of English common law is "legal precedent" – referred to as stare decisis, meaning "to stand by things decided". In a common-law system, court judges are bound in their decisions primarily by the rules and other doctrines developed and supplemented over time by the judges of earlier English courts.
The Pakistani common law is based on the common law of England and Wales due to the influence of individuals such as Muhammad Ali Jinnah, the founder of Pakistan. While studying law in London, Jinnah became an admirer of British liberalism, which led to the adoption of the English and Welsh common law in Pakistan. Following the establishment of the Dominion of Pakistan in 1947, the laws of the erstwhile British Raj remained in force. There was never an intention to begin the statute book afresh.
However, it is important to note that Pakistan differs from classic common law in several ways. For example, both criminal and civil laws in Pakistan are almost entirely codified, a legacy from the British Raj when English laws were extended to India by statute. Additionally, jury trials have been phased out in Pakistan since independence due to judicial and public dissatisfaction with their operation.
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The Pakistani legal system inherited British common law and local laws
Pakistan is an Islamic republic with Islam as its state religion. The Pakistani legal system is based on the legal system of British India, which itself was based on the common law of England and Wales. This means that Pakistani common law is ultimately derived from English common law.
Following the establishment of the Dominion of Pakistan in 1947, the laws from the British Raj remained in force. The founder of Pakistan, Muhammad Ali Jinnah, envisioned a legal system in accordance with Islamic teachings, which was eventually fulfilled when Pakistan gained its first constitution in 1956. During the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into Pakistani law, leading to the creation of a Federal Shariat Court (FSC).
The Pakistani legal system is a common law system, with an adversarial court procedure and the recognition of judicial precedent and stare decisis. However, Pakistan differs from classic common law systems in several ways. For instance, both criminal and civil laws are almost entirely codified, a legacy of the British Raj when English laws were extended to India through statutes. Jury trials have been phased out in Pakistan due to dissatisfaction with their operation, and the country's constitutional law has been significantly influenced by the United States legal system.
The interplay between the inherited common law system and Islamic law, based on the Quran, has created tensions, especially in outlying provinces and regions. The Pakistani legal system has also faced challenges due to decades of military rule and a weak justice system, contributing to rising violence and extremism. The Federal Shariat Court and the Shariat bench of the Supreme Court serve as appellate courts for certain criminal convictions, and judges and attorneys in these courts must be Muslim.
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Common law is based on past judicial decisions and not statutes passed by legislatures
Pakistan's legal system is based on the common law of England and Wales, which was inherited from the country's time as part of British India. The founder of Pakistan, Muhammad Ali Jinnah, admired British liberalism and wanted to implement a legal system in accordance with Islamic teachings. While this vision was never fully realized, it did influence later Pakistani lawmakers, and during the rule of General Muhammad Zia-ul-Haq, elements of Islamic Sharia law were incorporated into the country's legal code.
Common law, also known as judicial precedent, judge-made law, or case law, is a system of law that is based on past judicial decisions rather than on statutes passed by legislatures. It is a flexible system that can respond to changes in society, as it does not require lawmakers to pass changes in statutes or codes. In a common law jurisdiction, several stages of research and analysis are required to determine "what the law is" in a given situation. This involves ascertaining the facts, locating relevant statutes and cases, extracting principles, analogies, and statements by various courts, and then integrating all the information to determine "what the law is" and applying it to the facts at hand.
The principle of stare decisis, a Latin phrase meaning "to stand by things decided," is central to common law systems. This means that courts and judges need to follow earlier decisions and rulings, known as case law or precedent, when dealing with similar cases later. The decisions of higher courts are typically binding on lower courts in the same jurisdiction, and more recent decisions carry more weight than earlier cases. In a “case of first impression" with no precedent or clear legislative guidance, judges are empowered to resolve the issue and establish new precedent.
While common law is primarily based on past judicial decisions, it can also incorporate certain statutes. In some cases, legislatures may subsequently codify common law rules, either to give them permanence, to modify them, or to replace the outcome entirely. This interplay between common law and statutes can add complexity to common law systems.
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Common law is also known as case law
The Pakistani legal system is based on common law, which is also known as case law. This means that it is based on past judicial decisions or precedents, rather than statutes passed by legislatures. Common law draws from the opinions and interpretations of judicial authorities and public juries. It is a system of law that is constantly evolving, especially in the absence of an underlying statute or regulation.
The Pakistani common law system is based on the common law of England and Wales, which was inherited from British India. Pakistan's founder, Muhammad Ali Jinnah, had a vision for a legal system in accordance with Islamic teachings, which was later partially fulfilled when elements of Islamic Sharia law were incorporated into Pakistani law.
Common law, or case law, is based on the principle of stare decisis, which means "let the decision stand". This principle dictates that cases should be decided according to consistent rules, so that similar cases will yield similar results. This means that common law courts look to past decisions of relevant courts when the parties disagree on what the law is. The court is usually bound to follow the reasoning used in a prior decision if a similar dispute has been resolved in the past. However, if the current dispute is fundamentally distinct from all previous cases, or if legislative statutes are silent or ambiguous on the question, judges have the authority and duty to resolve the issue.
In some jurisdictions, case law can be applied to ongoing adjudication, such as in criminal proceedings or family law. It is also used to determine the applicability and limits of a law, rather than the creation of law.
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Common law has equal footing with statutes and regulations
Pakistan's legal system is based on the common law of England and Wales, inherited from the country's time as part of British India. The country's founder, Muhammad Ali Jinnah, had a vision for a legal system in accordance with Islamic teachings, which was eventually realised when Pakistan gained its first constitution in 1956, and later when elements of Islamic Sharia law were incorporated into Pakistani law.
Common law is a system of law that is based on past judicial decisions rather than on statutes passed by legislatures. Common law courts look to past precedential decisions of relevant courts when the parties disagree on what the law is. The court is usually bound to follow the reasoning used in the prior decision if a similar dispute has been resolved in the past (a principle known as stare decisis). However, if the court finds that the current dispute is fundamentally distinct from all previous cases, or if legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue.
Common law is sometimes referred to as case law or interstitial common law, and includes judicial interpretation of the Constitution, of legislative statutes, and of agency regulations, and the application of law to specific facts. Common law is more malleable than statutory law and is based on institutionalized opinions and interpretations from judicial authorities and public juries.
Statutory law can be further divided into two subcategories. The law is constantly evolving, especially in the absence of an underlying statute or regulation. For example, criminal and procedural laws have been redefined over the last century, and contract law and the law of torts are still being refined.
In this way, common law has equal footing with statutes and regulations. Common law is based on past judicial decisions and legal precedents, which are also used to interpret and apply the statutes and regulations in question.
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Frequently asked questions
Common law is a system of law that is based on past judicial decisions rather than on statutes passed by legislatures.
Yes, common law is applicable in Pakistan. Pakistan's legal system is based on the common law of England and Wales, inherited from the British Empire.
When Pakistan was created in 1947, it inherited two kinds of laws. British common law was applied to the 'settled areas' of Sindh, Punjab, a few districts of the NWFP, and Quetta. The rest of the country was administered under the Frontier Crimes Regulation (FCR).
The basis of common law in Pakistan is judicial precedent. Courts look to past precedential decisions of relevant courts when parties disagree on what the law is. Judges are bound to follow the reasoning used in prior decisions for similar disputes (a principle known as stare decisis).
Both criminal and civil laws in Pakistan are almost entirely codified, differing from classic common law. Jury trials have also been phased out in Pakistan.
