Common Law [lex communis, Lat.]. 'The phrase 'common law' is used in two very different senses. It is cometimes contrasted with equity; it then denotes the law which, prior to the Judicature Act, was administered in the three ' superior ' Courts of law at Westminster, as distinct from that administered by the Court of Chancery at Lincoln's Inn. At other times it is used in contradistinction to the statute law, and then denotes the unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the will of the Legislature. This unwritten law has the same force and effect as the statute law. It depends for its authority upon the recognition given by our Law Courts to principles, customs, and rules of conduct previously existing among the people. This recognition was formerly enshrined in the memory of legal practitioners and suitors in the Courts; it is now recorded in the voluminous series of our law reports which embody the decisions of our judges together with the reasons which they assigned for their decisions.'--Odgers on the Common Law, p. 59.
The distinction between written and unwritten law is adopted from the Romans, who borrowed it from the Greeks (Inst. 1. 1, t. 2, ss. 3, 9, 10). In this distinguishing our own laws into the script' or statute, and non script' or common, we use the latter in a peculiar and restrained sense; signifying by it nothing more than the original institution and authority of the law are not set down in writing, as is the case with Acts of Parliament; but that it receives its binding powers, as a law, from long and immemorial usage, and universal reception throughout the realm. The authenticity of these customs, rules, and maxims rests entirely upon reception and usage, as declared by our judges, who are the sworn depositaries and interpreters of our law. This Common Law is properly distinguished into three kinds: (1) General customs, or those applicable to and governing the whole kingdom, comprehending the law of nations and the law merchant. (2) Particular customs, i.e., affecting the inhabitants of particular districts. (3) The Civil and Canon Laws, properly denominated the ecclesiastical, military, maritime, and academical laws, See Hale's Hist. Of the Com. Law, c. iii.; Mackintosh's England, 274; 1 Kent's Com. 447, 468.
Common law, is a judge-made system of law, originating in ancient customs, which were clarified, expanded and universalized by the judges, Maya Rani Ghosh v. State of Tripura, AIR 2007 Gau 76.
By the (English) Judicature Act,1873, s. 24, replaced by the (English) Judicature Act, 1925, s. 36, all branches of the Supreme Court of Judicature are to administer law and equity concurrently; and by s. 25, and Jud. Act, 1875, s. 10, see now Judicature Act, 1925, s. 36, the rules of law on certain points are altered.
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