By other means, it is the doctrine of precedent. It is the rule that determines when a particular Court will be bounded to follow the decision of an earlier Court and when it is at liberty to ignore or overrule it. It is necessary to have the doctrine of precedent because it provides consistencies and legal certainties which promotes the fairness and equity. Furthermore, it also provides protection against variations in decision making by the judges. (b) i. Distinguishing a case Distinguishing a case means that we are arguing that the material facts of the present case differ from what has been presented in the earlier case and respectively should not be dealt with on the same principle of the earlier case.
However, Denning was ‘against is its too rigid application - a rigidity which insists that a bad precedent must necessarily be followed’. It is the doctrine’s rigidity that can prevent developments to meet the changing needs of society. However, this was recognised in the House of Lords 1996 Practice Statement. In addition, judges in the lower courts are adept at avoiding the doctrine’s rigidity. 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.
The Criminal Law now states that a consequence is intended when it is the purpose of the accused. A court or jury may also infer that a consequence is intended, though it is not desired, when the consequence is a virtually certain result of the act and when the accused knows that it is a virtually certain consequence. This area of law has proved to be confusing to both juries and judges due to the uncertainty of precedent. As the law stands today it appears to have reached a decision of virtually certain but as before is not certain to remain.
Injunction An injunction is a command of the court directing the defendant to refrain from doing something in breach of the contract. This is a preventive relief. Moreover, it can be filed as a separate request directly with the court. Injunctions are often awarded in cases involving a breach of contract which may be issued instead of a monetary damages award. On the other hand, the value of an item will not be determined as well as knowing when monetary damages will not be suited in a remedy for the non-breaching party’s losses.
In The Concept of Law, H. L. A Hart criticizes John Austin’s command theory of law and argues for a new framework that interprets laws as rules. As a legal positivist, Hart is motivated to separate the descriptive question of what is from the prescriptive question of what law should be. Despite this, he believes we must also consider the normative aspect to law, which is reflected in the obligation we feel to follow it. With the notion of obligation in consideration, Hart proposes a framework that is a more sophisticated and consistent view of how legal systems work. In this paper, I will argue that - despite the overall usefulness of his framework – he fails to properly address how judicial decisions play a role in the changing and challenging
He also argues in this chapter that society has the right to punish individuals who harm other members in society. On Liberty, chapter four by J.S. Mill argues that there has to be a division between an individuals rights and the society’s ability to punish, Mill also argues that his “harm principle” would hold the individuals accountable for their actions, which would prevent harm to society, however there were also flaws in Mill’s argument and exceptions need to be added to his theory.
In this essay I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this is essay is the distinction between formal and substantive theories of the rule of law. In order to reach my conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals
Though in reality, that offense may be morally wrong but it is yet to be discovered and entered as a legal principle thus, representing the prediction of the future consequences. Holmes further says that the interpretation of the law in a universal notion as morally obligated... ... middle of paper ... ..., Holmes says legal language should be based on amendment or changes to suit current situations and not be measured from old or fixed legal principles. Indeed, Holmes’ theory that “the nature of legal language can obscure the social interests and hide the social advantage to some that a law promotes” is a very important philosophical thought. The fact is that legal language denies some people the right to social advantage or equal justice. For this reason, we should look at laws as they ought to be based on current situations at hand.
There are two types of law in the U.S. judicial system: criminal law and civil law. Civil law is considered as a law that is designed to address private wrongs. “A private citizen who believes that he or she has been injured in some way by another may sue that party for damages” (Hemmens, Brody, & Spohn, 2013). Civil law as stated before is the settling of disputes between private citizens since many disagreements can arise concerning anything from property, contracts, and even personal injuries. Therefore, civil laws can provide citizens remedies for the individuals who are considered harmed by another.
Monetary compensation was not enough, so the court of chancellor developed new remedies. Unlike the common law rigid rules, equity law was flexible and would seek to provide the remedy of specific performance, the remedy of injunction, the remedy of rectification and remedy of rescission. However, there were conditions to a person seeking what is known as equitable relief, seeking to achieve a remedy under Maxims of equity. The plaintiff must prove that they would not be able to obtain justice in the common law court and they also need to prove the person claiming is himself / herself is without the blame. In addition, equity has developed the law of trust, succession, law of mortgage, breach of confidence and fiduciary obligations.