Common law
Also called: English common law · Topic: Judiciary: Independence, Structure, Judicial Review and Activism · NCERT: Beyond NCERT
Meaning
Common law is law made by judges through their decisions in real cases, not law passed by a legislature. It began in England. Each judgment becomes a precedent, meaning an earlier decision that later courts must follow in similar cases. Britain carried this system to its colonies, so India's legal system is built on it. Under Art. 372, laws in force before the Constitution continue unless they are changed or clash with the Constitution. In India today, Art. 141 makes law declared by the Supreme Court binding on all courts. The ratio (the reasoning needed for the decision) binds, while obiter (side remarks) only persuades.
Example
In M.C. Mehta (1987), the Supreme Court created the rule of absolute liability. Under it, a firm doing hazardous work is fully liable for any harm it causes, with none of the exceptions allowed under the older English common-law rule of strict liability. No Act laid down this rule. The judges made it, which is how common law grows.
Don't confuse with
- Statute law: law passed by Parliament or a state legislature. When a statute and a common-law rule conflict, the statute wins.
- Civil law system: used in countries like France, where the law is mainly written in codes and judges apply the code. Their past decisions carry far less binding weight than precedent does under common law.