Historically it has been rejected for three core reasons; that the self-interest fundamental to a commercial contract is diametrically opposed to the idea of good faith, that good faith is too much of a subjective concept to be enforceable and lastly that it is not the way of the courts to develop the law with comprehensive principles, it is preferential for them to do so incrementally. In practice the lack of acceptance of a principle of good faith can be seen in the case of Walford v Miles, where Lord Ackner dismissed it as ?unworkable in practice as it is inherently inconsistent with the position of a negotiating party.
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"In conclusion a Judges role in theory is to simply be a mouthpiece of the law. But in reality this is not practical. Over time as civil law systems have evolved so have the roles of their judiciary. To constrict the role of the judiciary is simply not practical since it would be to the detriment of the development of the law. Often within civil codes there is not enough precision to allow a simple interpretation of the law in all cases, and when there is a lack of clarity, the judiciary need to show the correct method of interpretation, and as is the case in Germany, need to modify the Law. Over time it is likely that the role of the Judiciary will expand and elevate them from being simply a mouthpiece to being equivalent to their common law counterparts."
"In conclusion, it can be forcefully argued that the rights of indigenous peoples have only recently been safeguarded and that previously the only recognised protection offered was under Article 27 of the ICCPR. Indigenous peoples, when numerically inferior, are entitled to rights under minority instruments but, as already addressed, under many circumstances the needs of a minority community are different to an indigenous community. Whether the 2007 Declaration will actually prove to be adequate will only be seen in years to come, but it may be said to be a step in the right direction. However, it is important to remember that the 2007 Declaration on the Rights of Indigenous Peoples is only a manifestation of soft law and as such will not bind any member State from disregarding its obligations under it and as such only time will tell if it will serve its purpose.
2,492 words including discursive footnotes."
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