Non-Consensual Property Rights Some form of classification is necessary to aid attempts to bring order to a confusing and confused area of law. If the events from which non-consensual property rights arise can be classified, then the law’s response is more likely to be consistent and coherent. Yet there are problems. The very nature of the facts that are brought before courts in the sorts of cases that comprise this area of law demand fairness, and legal policy considerations lurk behind every rationalisation. This makes it more difficult to achieve coherence, but our task is less demanding than achieving coherence in the law: we only need to look at the sets of facts that give rise to property rights by ‘operation of law’ (which are given effect by a declaration that the property is held on constructive trust for the plaintiff) and assess whether the classifications that have been suggested are correct, if they can be improved or whether it is a lost cause and the best cause of action is to give up and in doing so suggest that some form of ‘pure’ discretion is the only way forward.
There may be two kinds of authoritative precedents: a) Absolute: It means a precedent which is binding by the court to which it is cited, irrespective of whether in the opinion of that court it is right or not. In this case, the judges cannot exercise their discretion. b) Conditional: A conditional authoritative precedent is one which is normally followed by the courts but which can be disregarded in certain circumstances i.e. it may be overruled or dissented. Such a reversal of an earlier decided law becomes essential when established contrary to law and has serious
Gewirth and Nagel One difference between Alan Gewirth’s defense of absolutism and that offered by Thomas Nagel is that Nagel concedes that it can be wrong to fail to violate absolute prohibitions (or absolute rights) in order to prevent catastrophic consequences whereas Gewirth does not. Explain what you regard as the most important advantages and disadvantages of each author’s position. Which one has the more compelling defense of absolutism? Rights delineate a space around individuals that must be respected. The study of rights is a struggle to understand how rights may be prioritized, and in what cases the interests of someone may overcome the rights of another.
Once it is successfully established that there has been an assurance by a person, intending that the other relies on it, and other does so to his detriment and it was unconscionable for the assurance to be withdrawn, then the courts must decide an essential remedy for the claimant. The courts look at the circumstances in each case while deciding a suitable form of relief in a way the equity can be satisfied. This process is delicate for the courts to adopt and they usually tend to rely on the words of Scarman Lord Justice that 'the minimum equity to do justice to the plaintiff'. Scarman gave this statement in the case of Crabb v Arun (1976). There are multiple of ways in which court may satisfy the equity which can be seen in numerous cases.
Principles he argued acted not merely as a guide but also as a restraint upon judges; he argued this was crucial to ensure both legal certainty and to reduce the prospect of judges acting outwith their powers for justification. Judges therefore would be expected to weigh in legal principles, as well as legal rules when reaching their judgment. This is a somewhat accurate analysis, particularly when the concept of stare decisis is considered, which is the doctrine where courts of equal or lower standing are bound previous court decisions on similar principles. In practice this binds the judiciary to past legal principles in most cases; Dworkin however failed to account for when judges ought to depart from established principles. In particular where judges feel it would be detrimental to continue to follow past precedent.
A judge may distinguish the awkward precedent on its facts - arguing that the facts of the case under consideration are different in some important way from those of the previous case and therefore the rule does not apply. A precedent may be distinguished on a point of law; by arguing that the legal question answered by the precedent is not the same as that asked in the instant case. Courts may distinguish a precedent by stating that the precedent has been superseded by more recent decisions, and is therefore outdated. Courts may give the precedent a very narrow ratio decidendi or argue that the precedent has no clear ratio decidendi, for example because the ratio of one judge in a case is different from others in the same case. Courts may cla... ... middle of paper ... ...t of the Human Rights Act 1998 is as yet uncertain.
These are other things the judge said, such as the reasoning and explanation of why he made the decision. It may also contain a hypothetical situation, what his decision would have been if the facts of the case had been different, and the legal reasoning may be considered in future case... ... middle of paper ... ...reach of contract, there was enough different facts to distinguish them. Overruling is where a court in a later case states that the legal rule decided in an earlier case is wrong. It is used to prevent an injustice if the judges feel the first decision was wrong. This is illustrated in Pepper v Hart (1993) when the House of Lords ruled that Hansard could be consulted in statutory interpretation.
Legality of the object: The object for which agreement has been established have to be legal in order to make it valid contract. An agreement based on a illegal object obviously is not enforceable by law. Certainty: An important element to build a legal contract is certainty. In general rules, court will not enforce if the agreement is vague or incomplete. It must be possible to ascertain the meaning of the agreement.
Judicial Review Proceedings Introduction ============ Judicial review proceedings exist to ensure that lower courts and administrative bodies do not act beyond or at variance with their inherent powers. If they do act in such a way, the reviewing court will take action to rectify. Where discretionary powers given to administrative bodies are abused, the court will usually grant an order of certiorari quashing the decision. Generally, this will only be done if some aspect of the decision making process is corrupt and not because the court merely disagrees with the conclusion arrived at. If the decision is set aside, then the facts of that particular case have cumulated in the eyes of the court to reach the threshold of intervention in that case.
The ratio decidendi of a case may be understood as the statement of the law applied in deciding the legal problem raised by the concrete facts of the case. The ratio of a case is binding on lower courts but may not be cited as persuasive authority in later cases. The second principle is the obiter dictum. It is a statement made by the judge that is not an essential part of the ratio decidendi. It is most referred that something said by the way.