The rules and methods of statutory interpretation allow judges to decide cases as they wish. Discuss the accuracy of this statement.
Statutory interpretation Judges have discretion to interpret laws. There are several rules which judges can use. Firstly, the literal rule is whereby the plain ordinary and natural meaning of words in a statute is taken. It is said to be the best way to uphold Parliament’s intention. Judges are given limited discretion to decide on laws as they have to follow the meaning of the words. However, it may lead to absurdity. In the case of Whiteley v Chappell, it was an offence to impersonate any person entitled to vote to prevent electoral malpractice. However, the defendant impersonated a dead person who under the literal rule was not entitled to vote. He was acquitted. However, this shows that literal rule can result in repugnant situations as he was clearly guilty for impersonation. Also in the case of Fisher v Bell, the defendant had displayed flick knives in his shop window. Under the Offensive Weapons Act, it was an offence to sell or offer for sale any flick knife. However, the literal rule was used and the defendant was acquitted as displaying was merely an invitation to treat and not an offer for sale. Under the literal rule, judges have no discretion as they have to abide by the words of the statute. However, the literal rule may be useless when the solutions cannot be found in the statute or is ambiguous. An experienced draftsman cannot foresee all
Equity serves to fill in the gaps of Common Law. Discuss
Equity Zhiling. Equity serves to fill in the gaps of common law. The word equity itself means fairness. In the 12th century, litigants could bring a case to court based on the cause of action and the grounds of the claim. New writs were created to fit new circumstances. However in the 13th century, common law began to be rigid and litigants had to fit the circumstances into the existing writs. This is did not uphold morality as it meant that people were unable to bring an action to court (cannot seek justice) if it did not fit into any of the existing writs. Common law had to follow precedent and offered only damages which were inadequate. Dissatisfied parties petitioned the king who passed the cases to Lord Chancellor. Slowly the people started to petition the Lord Chancellor himself and he started to judge cases based on his own moral view (idea of fairness), thus created the Court of Chancery. The court allowed admittance of the oral evidence that promotes flexibility, justice and fairness. This is more flexible than common courts which only allowed the admittance of oral evidence in the 16th century. Equity soon began to develop case laws and precedent had to be followed which made equity no less rigid than common law. The Judicature Act of 1873-1875 established that both common law and equity could be administered in the same courts. Hence equity became rigid and may
Discuss the Difference Between Law and Morality.
LAW AND MORALS WHAT ARE LAWS AND MORALS Morality is linked to the beliefs, values and principles we hold about how we should behaviour in society. The word ‘morality’ itself is comes from the Latin word ‘moralitas’ and it covers areas such as sex before marriage, abortion, contraception and differences in sexual preferences. Morals often involve issues of ‘right’ and ‘wrong’, however, sometimes, one person’s wrong is another’s right. A philosopher, John Mackie, argues that ‘there are no objective values’, suggesting that morals are subjective in nature as they are created by human beings. Meanwhile, Laws are rules that are enforced by the Government, the Parliament, and other public bodies. They are aimed to control and direct human behaviour and they deal with many issues such as anti-social behaviours. THE BASIC NATURE OF MORALS Morals are change over time and differ from culture to culture, and from individual to individual, although nearly all the cultures are against extreme behaviours such as murder and rape. Morality often finds its roots in religion. For example, the bible provides a moral code for Christian communities and it teaches Christians what is acceptable and what is not. Meanwhile, the Koran offers a different moral code for Muslim communities and it also teaches Muslims what is and what is not acceptable. Laws will often try
The Nature of Law in Society
The nature of Law in Society Law is the binding rules of conduct meant to enforce justice and prescribe duty or obligation, and derived largely from custom or formal enactment by a ruler or legislature.These rules were put in place as a means of achieving social order in a wide variety of different spheres. These laws carry with them the power and authority of the en-actor, and associated penalties for failure or refusal to obey. Many people would argue that it pervades a lot of area's of human activity. Law derives its legitimacy ultimately from universally accepted principles such as the essential justness of the rules, or the sovereign power of a parliament to enact them. It's basic purpose would be to provide a frame work of rules within which citizens co-exist in order to keep peace amongst themselves. Law was described by Sir John Salmond as �the body of principles recognised and applied by the state in the administration of justice�. In this day and age the whole fabric of society relies on a reliable system of law, where people who suffer injustice in various forms can obtain remedies. There are some countries that do not have the benefit of a reliable system of law, this in effect has a number of consequences: people are not willing to invest in that economy; crime in various forms proliferates and the country will then suffer an
Liberal reform 1906-1914
Liberal reform 1906-1914 The huge scale of the Liberal party's victory in the 1906 general election guaranteed many new faces among the ranks of Liberal MPs, in favour of change in the field of social welfare. Between the years 1906 and 1914, the Liberals took steps to improve the health standards and the living and working conditions of the lower class. The main areas of people new legislation was targeted on was the working class under risk of poverty due to sickness or unemployment, their children and old age pensioners. The effectiveness of Liberal rule on these matters is not clear, as much of the legislation introduced to solve poverty problems, can be argued to be unsuccessful at what it was intended to achieve. The first task undertaken by the new Liberal government was the welfare of children. The issue of malnourished children had increasingly surfaced since the extension of rate aid to all schools and creation of Local Education Authorities in 1902, so the issue of children too hungry or generally debilitated was well documented by 1906. A report from the Committee on Physical Deterioration noted inadequate feeding-"It is the height of cruelty to subject half starved children to the process of education". To solve this problem the government introduced the Education Act of 1906. Local education authorities were enable to provide school meals for destitute children
Statutory Interpretation
Statutory Interpretation The process by whereby judges attribute meanings to words in a statute in order to apply the relevant statute to a case to reach a decision. There are two approaches: Literal and Purposive. The literal approach is where the words are given their plain, ordinary and grammatical meanings. The purposive approach is when the judge looks at the intentions of parliament. Aids available: There are two types of aids available for statutory interpretation, they are Internal aids, which are included within the act, or External aids that are not included within the act. INTERNAL AIDS These are most likely to be used when the literal or golden rules are being applied, but might also be useful in finding the purpose of the act. These parts of the act can be used so long as they do not conflict with the clear enacting words of a statute: * Preamble (often found in old statutes, setting out what acts must do; private acts must have them) * Long Title (sets out the aim of the Act) * Short Title * Definitions section (helps with the literal approach, as words are given their meaning) Punctuation is disregarded, as it was not originally used. EXTERNAL AIDS These are mostly used by judges trying to find the purpose of the act. The following have been traditionally used: * Historical setting * Other statutes * Textbooks * Previous practice in
Statutory interpretation
Statutory Interpretation Assignment III (a) Extrinsic aids are tools which a judge can use to help aid themselves when interpreting a decision, they are situated outside of the relevant statute a judge would be referring to when making a decision. Extrinsic aids that a judge may use include dictionaries (from the year the act was passed), other acts, other cases (precedents) and Hansard, to name a few. Sometimes it can be very difficult for a judge to identify the exact meaning of an act, for example when a broad term is used or when changes in the use of language have occurred. This is when extrinsic aids can prove most useful, as they can help a judge to clarify the exact meaning of an act. One example of a judge using an extrinsic aid is found in the case (Cheeseman v DPP, 1990). In this case a judge used a dictionary to identify the meaning of the word "passenger", a word which had changed in meaning since the Town Police Clauses Act, 1847 had been passed. The judge needed to identify what the word "passenger" meant at the time the act was passed, as the defendant should only be convicted if the 1847 meaning of "passenger" applied to him. To do this the judge used the Oxford English dictionary from 1847, the year the act was passed. This allowed the judge to identify what the word "passenger" meant when the act was passed and then interpret whether the defendant was a
Parliamentary Sovereignty
Parliamentary Sovereignty Parliament has sovereignty in the UK, which is a principle of the UK constitution that makes Parliament the supreme legal authority in the UK. Through this constitution Parliament has the right to create, amend and remove any law, including common law made by judges, however they cannot create any laws that a future Parliament cannot change. Any Acts made by Parliament is supreme over all other laws for example in court if a case comes before a judge that is relevant to an out of date piece of primary legislation the legislation will prevail unless Parliament expressly or impliedly repeal it. Parliament sovereignty is a subject to the Doctrine of Implied Repeal, which states that if an Act made by the current Parliament conflicts with an old act of Parliament the new act take precedent over the conflicting parts of the old one. The Doctrine is the reason why Parliament cannot create a law that will conflict with one that may restrict future law making, therefore allowing more freedom with law making and ensuring that no Parliament will be superior to another one. As Parliament is supreme no judge can challenge or amend Parliament law. There is one major limitation on Parliamentary supremacy, which is the European Court of Justice. On January 1st 1973 the UK joined the European Community as effected by the European Communities Act 1972. By doing
Assess the likelihood of Sid and Kenny avoiding personal liability for the debts of the company
Student I.D. 11207984 Question 3 Assess the likelihood of Sid and Kenny avoiding personal liability for the debts of the company. [20 Marks] Answer This question deals with directors avoiding personal liability for debts of a company, especially within the category of fraud, which is applicable to this scenario. This question also deals with lifting the corporate veil as if the directors are found to be liable the veil will need to be lifted, so as to expose the members whom are found to be liable. When a company is incorporated it is treated as a separate legal entity distinct from its promoters, directors, members, and employees and hence the concept of the corporate veil, separating those parties from the corporate body has arisen. The company as a separate entity was firmly established in the landmark decision in Salomon v. Salomon &Co Ltd1. In this case Salomon, a sole trader, sold his manufacturing business to Salomon & Co Ltd. (a company which he incorporated) in consideration for all but six shares in the company, and received debentures worth £10,000. The other subscribers to the memorandum were his wife and five children who each took up one share. The business subsequently collapsed, and Salomon made a claim, on the basis of the debentures held as a secured creditor. The liquidator argued that Salomon could not rank ahead of other creditors due to Mr. Salomon
AS LAW - Judicial Precedent
Judicial Precedent Judicial Precedent Read Elliot and Quinn page 5 to 23. ) Doctrine of Stare Decisis The English system of precedent is based on the Latin maxim: "Stare Decisis et Non Queita Movere", stand by what has been decided and do not unsettle the established. The idea is that by following precedents, which are the previous decisions of judges, fairness and certainty will be provided. Precedents can only operate if the legal reasons for past decisions are known. Therefore, at the end of a case (civil) there will be a judgement in which the judge will give not only the decision but also the legal reasoning which lies behind it. 2) Ratio Decidendi This is the legal reason or principal which lays behind the decision and it is this ratio which will provide the precedent for judges to follow in future cases. The remainder of the judgement is known as the: 3) Obiter Dicta "Other things said by the way." These comments do not form part of the ration (reasoning) and are therefore not part of the precedent. For instance, sometimes a judge will speculate on what his decision would have been if the material facts had been different. Sometimes, part of the Obiter Dicta may be put forward in future cases and although it will not form a binding precedent it may help to 'persuade' a later judge towards a particular view in the law. N.B. It is sometimes difficult to
