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What is Common Law?
The Common Law is a body of law derived from judicial decisions known as case laws, rather than from statutes. The Common Law derived its authority from the universal consent and practice of the people from time immemorial. This system of jurisprudence initially originated in England.
Common Law is unintelligible until expressed in a judgment. It includes those rules of law which derive their authority from the statement of principles found in the decisions of courts. This system of law includes tradition, custom and usage, fundamental principles and modes of reasoning. It is the embodiment of broad and comprehensive unwritten principles, which were derived out of natural reasoning and innate sense of justice.
A Common Law system requires several stages of research and analysis to determine the appropriate law in a given situation. The facts are ascertained properly, relevant cases and statutes are to be identified, and the principle, ideas by various courts need to be understood and applied in order to determine how they would help in understanding the point of law in question within that case.
Common Law vs Civil Law
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offense. Judicial authorities use the conditions in the applicable civil code to evaluate the facts of each case and make legislative decisions. While civil law is regularly updated, the goal of standardized codes is to create order and reduce biased systems in which laws are applied differently from case to case. Law is unintelligible until expressed in a judgment. It includes those rules of law which derive their authority from the statement of principles found in the decisions of courts. This system of law includes tradition, custom and usage, fundamental principles and modes of reasoning. It is the embodiment of broad and comprehensive unwritten principles, which were derived out of natural reasoning and innate sense of justice.
Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Similar to civil law, the goal of common law is to establish consistent outcomes by applying the same standards of interpretation. In some instances, precedent depends on the case-by-case traditions of individual jurisdictions. As a result, elements of common law may differ between districts.
Does Common Law lead to Judicial Overreach and Judicial Activism?
If the Judiciary gets into the creation of laws or steps into the role of the Executive without a strong reason, it leads to the situation of Judicial Overreach. In other words, it occurs when the Court acts beyond its jurisdiction and interferes in making of the laws. Common law system leads to judicial overreach because common laws are judge-made laws.
Judges continuously apply the existing laws to new situations and thus creating new laws. Judges perform the judicial function and go through the historical, social and legal text. It is considered as activism and becomes law themselves. Judicial activism has created the scope for judge-made laws or the common law system and that is an abuse of the constitutional power given to them. Judge’s decision is affected by several social and political factors that lead to judicial activism and judicial overreach
