The formula which provides the title of this essay deserves investigation particularly because its meaning is obscure and its function is open to debate.
In India, Pakistan and Burma (with the exception of the Original Sides of the former Presidency High Courts of Bombay, Calcutta, and Madras and corresponding jurisdictions of High Courts which have evolved, as it were, from them) the court must decide the case in the absence of a rule from statute, the written sources of the personal laws, custom, or case-law, according to ‘justice, equity and good conscience’.1 This provision can, and occasionally does, produce contradictory results.2 For example, a claimby, or through, an illegitimate child, in circumstances where the relevant system of law is silent, could be upheld on the ground that natural justice favours claims by natural relations, as opposed, for example, to the claim of the State by escheat3; or it could equally be rejected on the ground that to encourage heritable claims that deny the need for legitimacy and valid marriages between parents would be against public policy.4 In Africa numerous Ordinances provide that a native custom shall be applied provided that it is not repugnant to natural justice, equity and good conscience.
It may well be debated whether a particular custom is to be applied, and what criteria must be satisfied if this test is to work. Similarly it is provided that in the absence of distinct provision in the customary law the court must apply ‘justice, equity and good conscience’. The Northern Nigeria Shari‘a Court of Appeal Law, i960 (M. 16 of i960), s. 15, directs the court to apply ‘natural justice, equity and good* Government of India Act, 1915, s. 112. F. B. Tyabji, Muhammadan Law, 3rd edn., Bombay, 1940, 28-9.
2 Bijay K. Acharyya, Codification in British India, Calcutta, 1914, 319-20.
2 Jagamath Gir v Sher (1934) 57 All. 85,100-1.
* Meenakshi v Muniandi A.I.R. 1915 Mad. 63, 67 col.
i.JUSTICE, EQUITY AND GOOD CONSCIENCE conscience’ as a residual category of law. It is therefore a residual source of law, but apparently enacted in embarrassingly vague terms. There is even an instance where, when the method of ascertainment of a personal law is to be determined, the court is directed in case of doubt to ascertain it, or to determine, according to justice, equity and good conscience.1 Here it serves a more limited purpose, but not necessarily without important effects. In particular both South Asia and Africa are put in a dilemma whether or not to import English or other foreign laws under the cover of this formula. In some quarters there is doubt whether a provision apparently authorizing reference to foreign laws will have the same meaning when judges of foreign nationality eventually leave. And if justice, equity and good conscience may mean something very different after a number of years, why should it bear its present meaning now? In short is there any, and if any what, authority for supposing that a foreign system of law, or foreign systems of law generally, is or are incorporated into the legal system of a country which possesses this obligation (or facility) of reference to that source.
It may be argued at the outset that ‘justice, equity and good conscience’ is a nice, comfortable formula meaning as much or as little as the judges for the time being care to make it mean. One might confine one’s activity to considering how judges have in fact construed the direction to consult it. The results would not be of permanent value, since just as the concept of public policy varies with the years and the venue, so precedents may be of little help where this phrase is called into play. Let us agree at once that study of the judicial applications of the ‘residual’ or ‘repugnancy’ references has limitations. Very few cases show a real curiosity as to what the phrase means, many expressions fall per incuriam, and consequently are of no authority.
But a survey of some representative applications of the formula, and a review of its extraordinary history, may help to place the matter in perspective, showing that it still has a lively part to play in the development of the legal systems of developing countries.This essay will deal first with the concept as present in the minds of jurists of England in the sixteenth century. For this purpose it will be necessary to enter upon a preface explaining it against the background of Romano-canonical juridical thought of the time. We shall then pass to the problem of sources of law for the administration of justice in Bombay Island, the movement to apply Roman Law there, * Laws of Kenya 1948, p. 1927, cap. 149, s. 11.
and authoritative recognition of the applicability of ‘justice, equity and good conscience’ in the Island (and shortly afterwards in Madras). The next link in the chain is the re-birth of the principle from the confused antipathies of English legal methods personified in the procedure of the Supreme Court of Calcutta, on the one hand, and the oriental happy-go-lucky judicial administration personified by the courts of the East India Company in Bengal, Bihar and Orissa, on the other. The further story of our formula in South Asia naturally follows. The adoption of the formula in Africa, and its subsequent history in West Africa, in the Sudan, and (to a minute extent) in East Africa forms the last chapter of the story. The part which the Civil Law has played in bringing the formula to India, and the roles it played in the laws of India and Pakistan, deserve treatment at length, and they are sketched somewhat lightly in this article.