Prof. G V Ajjapa
“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories institution of public policy, avowed or unconscious, even the prejudice which the judges share with their fellow-men, have had a god deal more than the syllogism in determining the rules by which men should be governed.” O.W. Holmes in THE COMMON LAW (P.1).
“You will not mistake my meaning or suppose that I deprecate one of the great humane studies if say that we cannot learn law by learning law. If it is to be anything more than more than just a technique it is to be so much more than itself: a part of history, a part of economics a sociology, a part of ethics and philosophy of life.” Lord Radcliff in LAW AND ITS COMPASS (1962). Quoted in Lloyd’s INTRODUCTION TO JURISPRUDENCE (7th ed.) (P.1).
The purpose of giving the above two extracts is to show that the study of law in Indian law schools and colleges require a critical outlook towards the doctrine and decisions. Statements in some of the text-books are likely to be taken for granted and decisions are quoted as if those decisions are true and authoritative. A study of the history and development of the doctrine of common employment shows the forces at work in the origin of the doctrine and development of the law. Often the books used by many teachers and students of law contain statements which may not be very accurate. Most of the Indian text books on law of torts state that the doctrine of common employment has been abolished by the Employers’ Liability Act, 1938 as amended by the amendment Act of 1951. One of the books published in 1964 states that the doctrine….is still applicable though with caution. Another book on Law of Negligence published is 1968 states that the “the doctrine was never considered as part of the law in India…” There are other books used by the law students which state that the doctrine has been abolished. Ratanlal and Dhirajlal in 24th edition of their Law of Torts states that “after the… statutory amendments, it can safely asserted that the doctrine of common employment cannot be applied in India.”[i]