CONCLUSION
The effects of the formula in India have been to smooth out discrepancies between systems of law, and to introduce conceptions which strongly resemble the general character of English law.
Actual rules of English law are regularly relied upon in some fields.3 In so far as this has established lines of authority the importation of Americanor other foreign laws is unlikely, if not impossible, as long as the residual sources remain unaffected by legislation. Yet we have seen that there are fields and chapters where English law by no means claims prominence or predominance. The influence exerted by India’s long connexion with England, nowhere more subtle or pervasive than in her legal system, seems, none the less, to ensure frequent consultation of English decisions wherever India lacks an authority. The same should apply to relevant parts of Africa.
But in both parts of the globe a proviso exists, which goes back to the origins of the formula. If English law had been meant to be indicated it would indeed have been indicated in so many words. The formula was a device to escape from English law, not to call it in. Because precedent does not govern what the judge may in his discretion regard as consistent with justice, equity and good conscience to anything like the same degree as in other fields it is open to any judge to review other systems of law offered by counsel for his information. It is clear that this source does not mean uncontrolled speculation or personal preference. Reference to another system of law there must be, and provided it is a developed system of law it cannot be said to be against justice, etc., unless it is plainly inconsistent with the needs of the case or markedly incongruent with the rest of the system. So long as the system of customary law applied is one which can provide a valid analogy, the scope for introducing foreign laws does not exist.
It is only where positive law, custom, and equitable analogies based upon proved custom cannot be traced that our formula comes into its own. In such cases if the Bar and the Bench are sufficiently learned they may review the whole field of law: customs of neighbouring and similar tribes; written laws of generally similar peoples; the opinions of textbook writers and anthropologists; considerations of peace and public policy; the laws of developed countries starting, naturally, with English law, and reviewing the position in the other colonies or ex-colonies, the Dominions, the United States, and finally the Civil Law world. There is, it is submitted, a case for the employment of a trained comparative lawyer as a legal adviser, from whose opinions, perhaps as amicus curiae, it will be possible to determine what would be the best law for the circumstances. A rule cannot be consistent with justice, etc., if it relies upon a rule in a particular foreign law, however familiar, when the reverse is normally used amongst a great part of mankind—so long as that latter rule would not be incompatible with the whole chapter of law under consideration.Finally it is perhaps necessary to point out that some other formulae may or may not amount to the same thing as our formula. We have seen that the ’justice and right* of the Original Sides of the Presidency High Courts and their successors has been held to amount to the same thing as ‘justice, equity and good conscience’, though there are still doubts whether after all the English common law is not the residual source of law there. The repugnancy provisions of various African statutes admitting native law and custom are beyond our concern, for we have seen that ‘natural justice, equity and good conscience’ was really a mistake, and the question whether ‘natural justice’ is or is not the same as ‘morality’, ‘humanity’, and the like is beyond the scope of this essay.