Synopsis
Comparative examinations of the institutional requirements for economic growth conducted recently across different countries have shown that common law systems outperform civil law systems. It is assumed that the structure and laws of all common law systems are comparable, which fosters an atmosphere that encourages investment and the enforcement of contracts. However, because common law is an evolutionary system, it is neither universally applicable, nor is the common law’s historical development the same across nations. In order to compare the legal systems and histories of Kenya and India, this study looks at the political evolution of common law in both countries.Rather of developing naturally, common law was transplanted into each of these nations during the period of colonial dominance. The study comes to the conclusion that despite having common law, the two nations’ colonial histories of legal evolution were substantially different. Furthermore, political factors influenced the establishment of institutions and the administration of justice in Kenya and India after their respective countries gained their independence.
Recognitions
I acknowledge financial support from the Wheaton College Alumni Association and the Amelia Earhart Foundation. Jonathan Miner and Kim Gilsdorf gave invaluable research support. I am appreciative of the insightful feedback provided by CCP’s anonymous referees as well as Steve Bretson, P.J. Hill, Seth Norton, and Bruce Yandle. For help with the fieldwork, I also appreciate Paul Robinson, Christine Bodewes, and Gary and Jo Sensenig. The paper’s shortcomings are still mine.
Remarks
1. However, there is ongoing debate in political science over the relationship between democratic and capitalist development (see Jeffries, Citation 1993). The role of law in society is also the subject of theoretical discussion. Nicos Poulantzas (1973) and Antonio Gramsci (1971) contend that law is fundamentally political and that the state exercises hegemonic control over society, sometimes by persuasion (Gramsci) and other times through dominance in the formulation of laws that benefit the ruling classes and restrict the role of the state. Justice, according to John Rawls Citation (1971), is always more than only the uniform and unbiased application of the law.
2. Van Caenegem Citation(1988) provides a thorough and historical account of the common law’s evolution in England.
3. Although common law predated 1215, its application as a check on the monarchy began with the signing of the Magna Carta.
4. Excessive litigation and the use of the courts to hone tort law to the point where it results in a net welfare loss to society have been specifically pointed out as criticisms of the American common law practice (see Posner, Citation1996; Tullock, Citation 1997). This is not the same as the common law application in the English setting, where there is a lower likelihood of court decisions being overturned. Consequently, there are variations in common law application even in sophisticated nations.
5. Looking at the system from the outside, some civil law practitioners have called the adaptation process “quite crude and disorganized” (Merrymann, Citation 1985: 3). The Uniform Commercial Code in the United States is an example of how codes are used to a lesser extent in most common law systems. It is a codification of common law rulings pertaining to the sale of personal property.
6. In common law systems, oral arguments make for entertaining television. Civilian systems, where most of the activity is done in writing, cannot make the same claim. The inquiry and fact-finding process that come before the trial can take a long time in both systems. In a common law case, Posner (Citation1996: 75) contends that 20 minutes of oral argument on each side should be adequate to address any issues raised.
7. It is evident that there is conflict here, and certain common law systems have done a better job of handling it than others. Because courts in England take the concept of stare decisis very seriously and do not presume to overturn prior decisions as frequently as judges in the United States, Posner (Citation1996: 69–114) observes that English law is both clearer and less likely to be overturned than American law.
8. Kenya did not publish a law report on civil cases between 1981 and 2002. The common law cannot develop based on stare decisis if there is no attempt to document judicial decisions.
9. However, in many instances, like in South Africa, there may have been an impression that the absence of indigenous tribes was a result of population dispersal or movement.
10. This was occasionally British case law that was further developed in India throughout the Indian colonial era with regard to the African colonies. Whether or not to refer to this body of legislation as Indian or British law is a matter of debate.
11. In India, property rights were governed by British common law and protected even Indians, albeit with less vigor and regularity. Customary law was applied to personal concerns.
12. See Joireman Citation (2001) for additional details on various colonial law administration patterns.
13. The Mutiny was noteworthy for the tipping point that caused the violence as well as the political conditions that preceded it, which were previously mentioned. Rumors that the Enfield rifle cartridges used by the Sepoys were filled with animal fat caused unrest to turn violent. Hindus, who do not eat beef products, and Muslims, who do not eat pig products, found it repugnant that the cartridges were packed in animal fat because it was required to bite off the end of the cartridge before loading it into the rifle.
14. Pitt’s India Act of 1784 and the Regulating Act of 1773, which established the first Governor-General, placed political policy under the jurisdiction of the British government via a regulatory board answerable to Parliament.
15. Indian advocates, or pleaders, were formed in Indian common law courts by 1793 to confer with British legal experts on matters pertaining to religious law (British Colonial Administration, Citation 1834).
16. In 1916, a “leading Indian barrister” represented the accused in a terrorist trial that Sir Alan Henderson, Kt. Indian Colonial Service (ICS), 1886-1963, remembers attending (Henderson, c. Citation1960: 65).
17. Despite the fact that Gandhi just briefly practiced law in India, he left the nation to represent Indians residing in South Africa. Gandhi initially honed his satyagraha, or civil disobedience, tactics in South Africa.
18. At that time, the state of emergency that Nehru’s daughter, Indira Gandhi, had proclaimed was lifted after she lost an election. For eighteen months, the democratic institutions of India were essentially suspended due to the state of emergency.
19. This was undoubtedly caused by the political unrest at the time, which resulted in the division of the Indian colony’s territory into the two independent states of Pakistan and India on the basis of religious differences. India was considered a secular state with a majority of Hindus at independence, while Pakistan was considered an Islamic state with no sharia law until 1993.
20. When the concept of a jury of peers deliberating on a legal matter was originally presented, it appeared strange to Indian society. While Indians were at ease with the panchayat system of peer arbitration, which allowed each side to select its own representatives, George Campbell observed in 1852 that it was nearly impossible to persuade people to serve on juries voluntarily and that once they were, they would attempt to submit to the judge’s decisions (Bannerjee, Citation1984: 71).
21. Kawas Nanavati was pardoned after serving three years in prison. After that, he departed for Canada with his wife and kids and never came back to India.
22. It’s interesting that some academics have pointed out how crucial jury trials were in the past for separating the common law and civil law systems (Glaeser & Shleifer, Citation 2002). One wonders if one could make the same argument in the modern era given that both Kenya and India rejected the usage of jury trials inside their common law systems.
23. In fact, given the abundance of laws in India—some of which are so antiquated as to be rendered obsolete—some would contend that the legal system was nearly overly sophisticated. Merely 40% of India’s legal code is reportedly in regular use (Redundant Laws, Citation 2004).
24. Advocates here are the equivalent of attorneys in the US or, in the British system, they combine the roles of solicitor and barrister.
25. From an exchange of letters between Mr. Hedley Marshall and Sir Kenneth Roberts-Wray, as published in Marshall (c. Citation 1955).
26. For a description of how customary law was constructed during colonial control, see Chanock Citation (1991).
27. While there don’t seem to be as many issues with the criminal code overall, some Kenyan attorneys have expressed dissatisfaction with certain provisions of the legislation, such as the required death penalty that comes with a charge of violent robbery.
28. According to Glaeser and Shleifer, authoritarian governments can easily take advantage of civil law systems. A disclaimer to their reasoning is provided by the Kenyan case, which shows how hard it was for recently independent common law states to oppose the state when neither the legal system nor the judiciary were well-established (Glaeser & Shleifer, Citation 2002).
29. An attempt is presently underway in Kenya to make up for the injustices caused by the land distribution plan of the Moi era (see BBC News, Citation 2005).
30. Under President Mwai Kibaki, the Kenyan government removed half of the country’s most senior judges from the judiciary and suspended them while investigations into allegations of corruption were conducted.
31. Based on data from Freedom House Citation (2004), Kenya was classified as partially free between 1972 and 1986, not free between 1987 and 1991, partially free in 1992, and not free between 1993 and 2001. As of right now, it is classified as somewhat free.
32. India’s Freedom House civil liberties scores throughout time are noticeably higher than Kenya’s.
33. Saying that Kenya was not democratic is not totally accurate; rather, it was a limited democracy that permitted electoral competition but restricted the civil liberties that its people may enjoy.