University of London Common Law Reasoning Institutions Essay Title: “There can be no real argument about it: judges make law. The declaratory theory is more or less nonsense.” Student Number: 120448995 Candidate Number: 150573 Historically there are lots of arguments by the philosophers and the critics that judges make law or not. Actually judges are meant only to interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful
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** The pages are listed (for those who are using the Business Law textbook). =) CHAPTER 1 Under Public Law. The essential elements of a crime are (pg. 11): Actus reus: A wrongful act. Mens rea: A guilty mind. Under Private Law (pg. 12): Cestui que trust: In trust law‚ a beneficiary or cestui que use‚ a.k.a. cestui que trust‚ is the person or persons who are entitled to the benefit of any trust arrangement. CHAPTER 2 Two of the more important maxims (guides or aids) commonly used by the
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their own past decisions. The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided. donoghue v Stevenson followed in grant v Australian knitting mills. The Ratio Decidendi (reasons for deciding) is the only binding part of a judge’s decision but how judges interpret this can vary thus
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Do judges make law or merely play a role in interpreting law? Discuss Judges do both. Judges interpret the statue law and they make the common law. There are two types of law one would be the primary law‚ which is also known as the statue law and the secondary law‚ which is also known as the common law. For the primary law it is created by the legislature‚ which is the parliament as the parliament has the power to make the statue because the people elected them. So the judges interpret the primary
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Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity. The doctrine of judicial precedent involves an application of the principle of stare decisis ie‚ to stand by the decided. In practice‚ this means that inferior courts are bound to apply the legal principles set down by superior courts in earlier cases. This provides consistency and predictability in the law.
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Part 1. Judicial Precedent “Stare decesis et non quieta movere” – roughly translated means “Stand by what has been decided and do not unsettle the established” - This is the main legal principle‚ which judges are obliged to follow the already set-up precedents‚ established by prior decisions. This means that a decision made in one case can be binding on all following cases under similar circumstances. The principle of stare decisis consists of two components. The first is the rule that a decision
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Stare decisis The doctrine of judicial precedent is based on stare decisis. That is the standing by of previous decisions. Once a point of law has been decided in a particular case‚ that law must be applied in all future cases containing the same material facts. For example in the case of Donoghue v Stevenson[1932] AC 562‚ (Case summary). The House of Lords held that a manufacturer owed a duty of care to the ultimate consumer of the product. This set a binding precedent which was followed
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to previous decisions to help them decide similar cases where the law and facts are alike. A fundamental principle upon which the doctrine of judicial precedent rests‚ is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis‚ meaning to stand by what has been decided‚ forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which‚ it is argued‚ leads to fairness. The effect
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Law‚ Oxford: Clarendon Press Steiner‚ J (1990) Textbook on EEC law‚ 2nd ed.‚ London: Blackstone Press. Websites Goodhart‚ A. (1931) Essays in Jurisprudence and the Common Law Cambridge: Cambridge University Press Schmidhauser‚ John R. 1962. Stare Decisis‚ Dissent‚ and the Background of the Justices of the Supreme Court Law Review 14:194-212 Landes‚ William M.‚ and Richard A. Posner. 1976. Legal Precedent: A Theoretical and Empirical Analysis Gennaioli‚ Nicola‚ and Andrei Shleifer. 2007. The Evolution
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follow previously decided cases to aid in their decision providing that the facts are sufficiently similar. The doctrine of judicial precedent seeks to provide consistency and predictability in law by virtue of the application of the principle of stare decisis which means to stand by the decided. Through the application of this maxim‚ judicial precedent ensures inferior courts are bound to apply the legal principles which were set down in the decisions made by superior courts. The decision of a judge
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