Wednesday, June 6, 2012


The "Law" is an intangible intellectual concept. We cannot touch it. We cannot taste it. However its presence is pervasive in nature. I, concern that the sources of such law is classified into Statue law and Common law.
The terminology " Common law" is very popular among Common Man, without much knowledge on "What it  actually supposes"? 

The life of the law has not been logic: it has been experience:
Common law drives with the fuel which is much of experience rather than logic. Modern lawyers, legal teachers and law students - practice, profess and presume - it is the legal system of England or English Law. However this the not the meaning of the Common law.

I can further divide the Laws of England  into two  kinds, viz. Lex Scripta, the written Law: and Lex non Scripta, the unwritten Law. Common law are judicial pronouncements or the case-laws which falls under the generis class of unwritten law. So it is clear from this Common law does not include the Scriptum or Statute laws.

We also bear such memorial system of law in India: Smriti which are written while Vedas were unwritten. Now let I dictate the terms of Common law.Common law are  usually stitched by the Judges. Albeit such stitches bear a purple patch called Stare decisis. Stare decisis means One judgement shall bind all the subsequent judgement. This is much based on the " Doctrine of First Impression".

Impacts made by such Common law is mammoth. Due to the influential British colonization such Common law stood as the base for the formation of Statute law for many countries. Today around 2.5 billion population in the world comes under the belt of Common law.

These Unwritten laws have greater impact than written laws. These Cases changed our lives forever.The case laws can shake the foundation of Constitution. Who could forget the "Kesvananda Bharthi vs. State of 
Kerala" which is a real classic example of precedent law rather than president law. In English, such cases are flooded. If I could remark few for the readers (note:I might command you people to read these cases):
1.     Donogue vs. Stevenson
2.     Cundy vs. Lindsay
3.     Bonham's case
4.     Balfour vs. Balfour and so on.........
The extensive extension of the Common law extends to 25-30 countries in the world. As of now, Common law is the second widely follow law in the world next to Civil law ,which traces its origin to the Rome.Common law was popularized only on account of British Raj all over the world.

In India, these laws have played greater role. All the kinds of law have complete and comprehensive impact of Common law except for Family law. Prior to the colonization, the Indian law were controlled by the Hindu and Islam law. Today, its a lead of Common law over any other law in India.

William BlackStone is considered as the Father of Common law after his remarkable material on the Common law.

In the past Common law was bearing the effort of binding duty. Today such binding responsibility is repealed. After the era of Lord Denning in the benches - Common law is no more Common. In India- in the famous Constitutional case- Nani Palkhivala advocated for the prospective overruling in the judgement( which was propounded by the Benjamin Coradazo) which deviated from the core competent ideology of Stare decisis of Common law.

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