Communis Opinio

Author: Siddharth Shankar Singh

Rajiv Gandhi National University of Law

MEANING

Translated as “Common Opinion” or the “Opinion of the Majority”, it could be seen as another term for a famous legal maxim – “Communis Error Facit Jus”. It is used as the generally held view of the masses. It says that if there’s a belief or generally held view of the law, that belief or view could be construed as ‘The law’. It can be said that this maxim is in congruence with the common sense of the public with regard to any matter that has not been thoroughly dealt with by the prevailing law.

If an act, that, at a certain point of time was illegal, and that has now gained significance due to continued and unrestrained usage for a long time comes to court, the court might treat it not as an error but as a law, which is converse to the maxim: “Communis Error Facit Jus” which says that “A common error cannot make law”. It is the same expression as using common opinion for an unregulated work ie; “Communis Opinio”.

The same expression can also be construed as ‘The opinion of the expert’ or ‘the opinion of the scholar’.

ORIGIN

The term has its origin in the laws of Ancient Rome, where, due to lack of specified legal rules against most of the crimes, the generally held view of the public prevailed in awarding punishments for a long time, until the English Common Law was fully developed and spread.

CASES

In the case of “R.K Randhoni Devi v. State of Manipur & Ors.[i]”, the counsel was seen justifying the previously disputed outcome of the case as ‘Public Good”. He used the principle to state that- ‘The court, in most cases, favours the interest of the public, and for the said purpose, can in-fact give way for an error to be passed on as law.’

Similarly, in the case of “Raja Singh & Anr. v. Mahendra Singh & Ors[ii].”, it was held that- Because Wilkinson’s Rules were followed even after decades of the passing of Act-1, that the current law would in-fact not be applicable in the situation, and the common belief would be construed as ‘The law’.

CONCLUSION

Although it seems quite obvious to use the above maxim in an attempt to provide justice in accordance with society’s views, we should not forget that law as a subject has evolved multifold and that what may have been reasonable at a certain time, may not be the same centuries afterward. The prehistoric origins of the maxim definitely confirm this notion. The Romans might have used the commonly held view because society, in general, was less corrupt at that time and people had a very high sense of integrity in them, which is missing right now. So, it seems obvious for us to abide by Lord Ellenborough’s words and “apply this maxim with very great caution”.[iii]

[i] R.K. Randhoni Devi v. State of Manipur & Ors. on 5 January, 2000                    https://indiankanoon.org/doc/961203/

[ii] Raja Singh & Anr. v. Mahendra Singh & Ors. On 25 January, 1963 https://indiankanoon.org/doc/227379/?type=print

[iii] Broom, A Selection of Legal Maxims, Karnataka Judiciary https://karnatakajudiciary.kar.nic.in/hcklibrary/PDF/1874_broom_a_selection_of_legal_maxims.pdf