What is judicial precedent?
What is judicial precedent? What are the main principles that are applied in judicial precedent? Are the different court structure being bound by the decision of others higher courts? To what extend binding precedent ensures the existence of both certainty and flexibility in common law? What are the other advantages and disadvantages that contribute to the doctrine of binding precedent? The doctrine of binding precedent or stare decisis, refers to the fact that, the decision of a higher court will be binding on a court lower than its hierachy. Judicial precedent can be applied on cases and to be treated similiarly when the material facts of the cases are identical. There are two main principles that are involved in judicial precedent, there are ratio decidendi and the obiter dictum. Ratio decidendi is a principle of law on which the court reaches its decision. 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. Obiter dicta a statements do not form part of the binding precedent, but
In relation to the offence of murder discuss the suggestion that the law is in urgent need of reform
In relation to the offence of murder discuss the suggestion that the law is in urgent need of reform The definition of murder is derived from the explanation by Sir Edward Coke who expressed "Murder is when a (person)...unlawfully killeth..any reasonable creature in rerum natura under the Queen's peace, with malice aforethought.." - this is essentially; the unlawful killing of a human being. However, the conundrum this provides is the actus reus of murder; in that there is no distinction of the severity or gravity of the crime. This definition raises several points that require further consideration, as there are many anomalies and thought concepts that are now out dated. Coke's definition of murder used to provide that the death of the victim had to occur within a year and a day of the actus reus; so when this definition was originated the "year and a day rule" was sufficient, however with modern technology life may be maintained for longer, so already this anomaly has been reformed under the Law Reform Act (Year and a Day Rule) 1996 as the time frame was no longer relevant. There is also no distinction for mercy killing especially of those in a vegetative state. The definition of a "person" is open to interpretation, as a foetus is not considered a "person", so if death is caused before the child has an existence independent of its mother, there can be no murder. However
Judicial precedent.
Judicial precedent. . Give another name for judicial precedent. Case law is another name for judicial precedent. 2. What is judicial precedent? Preceding cases/trials setting new legal principals for cases to follow and developing them along the way. 3. Name two major developments which assisted development of judicial precedent. The judicature acts 1873-75 (laid down modern hierarchy of courts) and the development of an efficient system of law reporting (creation of the council of law reporting - 1865). 4. What is Res Judicate? The judge's decision. 5. What is the ratio decidendi? The reason for the judges decision 6. What is obiter dicta? Matters spoken by the way. 7. When a legal principal is established, what is it known as? It is known as precedent. 8. What is binding precedent? Precedent that binds courts below it. I.e. the House of Lords binds the Court of Appeal, the Court of Appeal binds the Divisional Court etc. 9. What is persuasive precedent? Decisions not binding on the lower courts but may strongly influence their decisions and use them as support. 0. Explain how the system of binding precedent works in relation to the following courts; (The House of Lords; its decisions are binding on all lower courts, in the 20th century it had regarded itself as bound by its own decisions until the 1966 practice statement which allows them to depart from their
Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases.
Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases. FIRST YEAR BA (HONS) ACCOUNTING AND FINANCE PATHWAYS LAW - ASSIGNMENT ONE Distinguish Criminal law from Civil law in the English Legal System. Outline the jurisdiction and composition of the courts of trial dealing with these two different types of cases. To what extent is it possible to appeal against decisions of the courts of trial? One of the main differences between criminal cases and civil cases is that they are held in different courts, this is because there is a significant distinction between a civil wrong and a criminal wrong. Crimes are considered to be a type of wrongdoing, however civil wrongs tend to have only and impact on the parties involved in the case. For example: a breach of contract. Where as criminal wrongs tend to have an impact on society itself. For example: a murder, theft or rape. Criminal law is dealt with in the Magistrates court and if very serious in the Crown court. It is said to be more difficult to win a case in the Magistrates court and Crown court than in a civil court as in a magistrates and crown court the evidence has to be proved beyond doubt and in a civil court evidence can be proved on a balance of probabilities. Criminal and civil cases are dealt
Explain the theory of natural law
TOM MORGAN 12RK AO1 Explain the theory of natural law Natural law is a theory that stretches across all cultures and ways of life. It is a universal theory that says there are definite rights and wrongs. For instance; taking human life is definitely wrong. In this respect, Natural Law is the parallel of Moral Relativism, as if you live by a Moral Relativism approach to ethics, then no actions are always right or always wrong. That is to be decided by the outcome of an action. This quote from Cicero may help explain Natural law: "True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting" This means that 'true law' or Natural Law is in harmony with nature. E.g., do not have sexual intercourse with those of the same sex or from the same family, as both these things go against nature. The most famous advocate of the Natural Law ethic was the Christian theologian St Thomas Aquinas. Aquinas developed Aristotle's ideas and argued that the natural purpose of the world is found in God. Humans are free and are capable of choosing to follow the 'natural law' of God, which is understood through reason. He believed the human purpose was, 'to reproduce, to learn, to live harmoniously in society and to worship God'. In this way, Natural law describes not only how things are but also how things ought to be. When things are fulfilling
There are many influences operating on parliament before and during the legislative process. Explain and evaluate any three of these influences, giving examples of how parliament has been persuaded to introduce legislation.
Law Reform - Influences upon Parliament There are many influences operating on parliament before and during the legislative process. Explain and evaluate any three of these influences, giving examples of how parliament has been persuaded to introduce legislation. Law reform means making a change to the law by improving what had existed before. Law reform can be achieved by updating the law, codification of the law and consolidation of statutes. There are many different influences upon parliament for law reform. Three of these influences are Law commissions, Royal commissions and pressure groups. The law commission is the independent body established by the Law Commission Act 1965 to keep the law of England and Wales under review and recommend reforms when they are needed. The law commission is important because it is the only full-time publicly funded body established for the purpose of law reform. The law commission consists of five commissioners plus support staff. The chairman is a high court judge who is appointed for a term of three years. The other four commissioners are solicitors, barristers or teachers of law. Each of them is appointed by the Lord Chancellor for a term of five years and may serve two terms. The law commission is an advisory body which makes proposals for law reform but they also work on consolidation of statutes and statute law revision. The law
Stages of a Bill to become an Act of Parliament
Stages of a Bill to become an Act of Parliament Green Paper This is a consulation document for Law reform. Whenever the government wishes to introduce a bill, it publishes a Green Paper. Then the Labour Government introduced it in 1967. The interested parties send comments to the relevant government department, so necessary changes can be made to the government's proposals. White Paper Following Green Paper, the government will publish a White Paper which is a draft Act of Parliament, with its firm proposals for new law. First Reading This is a formal procedure when the name and main aims of the Bill are read out. The in the House of Commons MPs can vote for this is two different ways - Verbally by shouting 'Aye' or 'No' or formally by each member of the House walking through a special chamber. Second Reading This is the most significant process on the entire Bill in which MPs discuss the main principles behind the Bill. The speaker of the House control the debate to ensure all MPs who wish to speak can do so. At the end of the debate the MP will vote the same way as for the First Reading. They walk through the 'division lobby' where commons officials called 'tellers' will physically count them. Committee Stage At this stage a standing committee which will range from sixteen to fifty MPs, the members will usually be those with the special interest in or
"What are the advantages and disadvantages of electing for a Summary trial as opposed to trail by jury?"
"What are the advantages and disadvantages of electing for a Summary trial as opposed to trail by jury?" There are many advantages to electing for a summary trial as opposed to trail by jury. One advantage of electing for a summary trial is that magistrates know more about their local area as they are members of the local community appointed by the Lord Chancellor. This means that their views could be more conclusive and would most likely consider the needs of the community and the major problems it faces. On the other hand, magistrates' courts deal with smaller incidents and magistrates may have a more 'conviction-minded' attitude as they wish to look out for their local community. As the magistrates court represents the local community then if the defendant has been accused of committing a crime in his or her local area then the trial would be held in the local magistrate's court and this could lead to embarrassment for the defendant and the defendant being segregated form the local community. Where as if the trial was held at the crown court it would be further from home and the defendant would be less likely that the defendant would be in the public eye. Magistrates Courts are faster in finishing cases as opposed to Crown Courts, which may take up to several months and this is an advantage electing for a summary trail as it often avoids long periods on bail or in
In order to decide whether or not trial by jury should or should not be abolished, we need to know what it is that we are dealing with and what viable alternative or alternatives there are to it.
In order to decide whether or not trial by jury should or should not be abolished, we need to know what it is that we are dealing with and what viable alternative or alternatives there are to it. I will take a brief look at the history of the jury trial. I will examine the function of the jury; look at what is good and bad about the jury system. Finally I will examine the proposed alternatives to trial by jury that are currently in fashion. The jury system first arrived in Britain after the Norman Conquest. The earliest jury was a body of neighbours summoned by a public officer to give oath as answer to some question1. The sworn inquest was used to enable the recognition on oath of a number of upstanding members of the community to testify to facts which they had personal knowledge. Those called were not judges of fact, but witnesses. By the end of the twelfth century, a person accused of a crime could, on payment obtain the right to obtain a trial by jury. (I will return to this point later when I look at the government's proposals to remove the right to elect jury trial in either way offences) When Pope Innocent III abolished trial by ordeal in 1215 and compurgation (the accused sought to clear himself by his own oath backed up by the oaths of friends and neighbours, who testified to his character rather than to the facts) fell from favour a need arose to find a new
The three main rules of statutory interpretation are the literal rule, the golden rule and the mischief rule.
Question 2 This essay outlines the rules of statutory interpretation. The essay will starts by explaining what the rules are, and how they are used. This will follow by the three main rules: the literal rule, the golden rule and the mischief rule. The essay will also outline the difficulties that courts face in applying the rules. The rules are not in fact rules, but guidelines. Law is a system of rules. The rules are a vital part of our social environment. We are subject to the rules at all times: at work, at home, in the shops. Statutory interpretation uses rules to help interpret what Parliament has enacted. The interpretation of statute has become a hugely personal affair with judges attempting to have their final say and using whatever means to justify their decisions in a particular case. Some judges have their own favorite rule and the different outcomes may result from the use of different rules. One judge may use a particular rule of interpretation and another judge may use another rule, even for the same case. The three main rules of statutory interpretation are the literal rule, the golden rule and the mischief rule. The literal rule means the courts will give words their plain, ordinary or literal meaning even if the result is not very sensible and does not appear to be the on which parliament intended when making the law. This is the oldest of the rules and it
