Jodie and Mary were conjoined twins. On appeal, the Court of Appeal was asked to determine whetherit would be lawful for surgeons to operate on the pair to separate them.
Jodie and Mary were conjoined twins. On appeal, the Court of Appeal was asked to determine whether it would be lawful for surgeons to operate on the pair to separate them. The implications of separation were that M would certainly die within minutes and that J would most probably live. On the other hand, if the twins were not separated ultimately both would die within a matter of months. M's own heart and lungs were inadequate to sustain M's life. While joined to J, M survived only by relying on J's heart to pump the blood oxygenated by J through both twins' bodies. Sustaining both lives was imposing an excessive strain on J's heart. It was common ground that J's heart would fail within approximately 3-6 months. M's death would inevitably follow J's. On these facts, the Court of Appeal held that it would be lawful (though not required) for surgeons to carry out the operation. To the extent that any general proposition can be extracted from the decision, its gist seems to be that a defence of necessity can extend to lethal acts undertaken in order to negate a threat to life even where that threat is an innocent one. Hence, on the best view of the law after Re A, the story told of the petrified passenger during the sinking of the Herald of Free Enterprise, who had to be pushed off a ladder (and who apparently then drowned) in order that others may survive, may
What implications, if any, should a theory of justice have for the institution of the family?
What implications, if any, should a theory of justice have for the institution of the family? There is much debate between contemporary political theorists as to the significance of the family within the political sphere. Historically, the family has developed under a patriarchal model with the husband and father at the head of the household. Typically the man would be the main breadwinner whilst the wife would be confined to the domestic sphere. However, contemporary feminists, most significantly Susan Moller Okin, are now beginning to challenge traditional conceptions of familial structure and the relationships within it. Susan Moller Okin is a Rawlsian feminist. Both her main work on this topic, Justice, Gender and the Family, and several journal articles she has written, draw comparisons between her theories and those of Rawls. She describes Rawls as having "...very great potential..."1 and attempts to build upon his works to further her ideas as to the place of justice within the family. Rawls was one of the first political theorists of his era to admit the importance of the family by claiming in Political Liberalism that the nature of the family should automatically belong to the basic structure of society, along with "...the political constitution, the legally recognised forms of property and the organisation of the economy."2 However, Okin disagrees with Rawls on a
Examine the Controversy that Surrounds the Question of What Judges are Doing When They are Deciding Cases
Examine the Controversy that Surrounds the Question of what Judges are doing when they are deciding Cases. If we accept the hypothesis, that judges do indeed make law through their decisions, we need to look closely at the judges themselves to decide whether they are capable of performing that function. Judges are not, in this country, elected, as are the other law-makers (the legislators). If judges had no law-making role, then the uncertainty over judicial decision making would not arise; it would not matter whether the judiciary was representative of the society within which it operates, or whether it was capable of acting impartially. Lord Denning stated that: "Every judge on his appointment discards all politics and all prejudices. You need have no fear. The Judges of England have always in the past - and always will - be vigilant in guarding our freedoms. Someone must be trusted. Let it be the Judges."1 However, if judges were simply applying the law when making decisions, then it would not matter who was fulfilling that role, because, everybody would reach the same decision in every case, unless a judge happened to misapply the law, in which case another court could put him right. But judges reach very different decisions upon the same facts; there is no common agreement as to what the law is, and Hart argues that in many cases the judges are not only applying the
How do judges interpret statutes?
How do judges interpret statutes? To achieve consistency, judges and legal authorities have attempted to establish guiding principles of interpretation. Statute law, unlike case law, provides rules in the form of a single verbal formula. The words of a statute have a unique authority which words in judgments virtually never have. Statutory interpretation means assessing legislative intention based on the binding rules, on principles and on presumptions as to what Parliament had in mind and on linguistic construction. No argument must be overlooked when searching for all the relevant interpretative factors. Judicial interpretation is unregulated by Parliament, however Parliament drafts Acts in such a way as to minimise the amount of interpretation that is necessary. The reason for this is that to have a high degree of judicial interpretation would compromise certainty and result in redrafting of laws by judges. This would in turn result in more complex legislation drafted to avoid judicial rewriting. As a result judges determine the intention of Parliament by "filling in the gaps". It is the judges' role to interpret the law and there are main rules for interpretation, the general principles and they are as follows. The Literal Rule The oldest and most important approach is literal interpretation. The interpretation of Acts purely according to their literal meaning, i.e.
Trial by jury should be abolished in cases of fraud and extended in civil cases. Do you agree?
Trial by jury should be abolished in cases of fraud and extended in civil cases. Do you agree? The English jury system is regarded by many as one of the most essential and central features of the legal process: 'the bulwark of individual liberties.' However, trial by jury is a controversial institution. Can a jury really understand and follow the issues in a criminal fraud trial? Would trial by professional judges be cheaper and quicker? Should trial by jury be extended in civil cases? Both the jury selection process and the value of decision-making by juries are frequently criticized. In civil trials it is necessary to know the extent to which juries are used and the functions performed by them, particularly the extent to which jurors must decide issues other than liability, for example, compensation. On this matter it is important to understand the dilemma concerning 'excessive' awards, particularly in defamation cases (John v MGN Ltd [1996] 2 All ER 35). In addition, recent concerns over the length and cost of jury trials for serious fraud cases have added to the debate as to whether juries should be retained in such cases, particularly if jurors are unable to follow the evidence. Proposals for reform in this area stem from the Roskill Report (1986), and it is important to be able to weigh the advantages and disadvantages of alternatives, such as trial by jury
Company Law 5. The judiciary should be prepared to "lift the corporate veil" in the interests of justice. Discuss.
[22032] Company Law 5. The judiciary should be prepared to "lift the corporate veil" in the interests of justice. Discuss. Following the judgement of that found in Salomon1, it has become a fundamental principle in company law that the corporate veil ( or veil of incorporation), often enables members of a company a sense of limited liability, protected by the principle that constitutes the "separate personality" of the company. In the following discussion, we shall establish to what degree this ruling and subsequent ones are adhered to in regard to both a corporate sense, but also in a judicial capacity by the courts. Supported by Salomon, upon incorporation, a firm becomes a separate legal entity distinct and separate from the individuals contained within it, such as shareholders and its directors2. As a company is a corporation, it is therefore seen as a person before the eyes of the law, quite distinct from the individuals that are its members. In this way, as a distinct person, the company can own property, have rights and therein be subject to certain liabilities3. Furthermore, the company does not hold any property for example merely as an agent or trustee for its members4, they cannot sue individually or collectively to enforce rights which the company has against third persons otherwise than in exceptional circumstances5, nor can they be sued in respect of its
Two of the keystones of our right to a fair trial, the right to silence and the presumption of innocence, have been compromised in recent years; this compromise has however been necessary in the interests of justice.(TM) Discuss.
'Two of the keystones of our right to a fair trial, the right to silence and the presumption of innocence, have been compromised in recent years; this compromise has however been necessary in the interests of justice.' Discuss. Every person has the right to a fair trial both in civil and in criminal cases, and the effective protection of all human rights very much depends on the practical availability at all times of access to competent, independent and impartial courts of law which can, and will, administer justice fairly. Under Art.6 (2) of the European Convention on Human Rights, it states that 'everyone charged with a criminal offence shall be presumed innocent until proven guilty', therefore the burden is on the prosecution to prove the case. This means that it must prove both the required actus reus and the required mens rea. The prosecution may also have to disprove a defence, which the defendant raises as was confirmed in the case of Woolington1 where the judge at the trail told the jury that the prosecution had to prove beyond reasonable doubt that the defendant killed his wife. However, for certain defences, the reverse onus places the burden of proof on the defendant2. The second keystone of our right to a fair trial is the right to remain silent. Murphy (2005) notes that the right of silence has two aspects, the right not to be compelled to give evidence, and the
The Concept of Impossibility In Inchoate Offences.
THE CONCEPT OF IMPOSSIBILITY IN INCHOATE OFFENCES . The concept of impossibility occurs in all three inchoate offences; incitement, conspiracy and attempts. This concept entails the fact that in some circumstances the planned act which, if carried would result in an unlawful offence, sometimes becomes impossible, and no offence can be committed or is committed. This is well illustrated in Haughton v Smith (1975) AC 476, where the defendant was charged and convicted of attempting to handle stolen goods. Prior to this however, the police had already recovered the stolen goods but proceeded to catch the rest of the people involved, which resulted in the arrest of the defendant. The court held that at the time of the alleged offence the goods, being in the lawful custody of the police, ceased to be stolen goods as stated by section 24(3) of the Theft Act 1968.1 Inchoate offences are used where the full substantive offence does not occur. Of all the three inchoate offences, incitement has no statutory basis; it is governed by the common law. The actus reus of incitement requires proof that the accused by means of encouragement, persuasion, threats or pressure sought to influence another to commit an offence.2 Generally, incitement occurs between two people, however an incitement can be unilateral as seen in R v Most (1881) 7 QBD 244. Here the defendant had published an
Migration and Europe.
Migration and Europe - Revision How have migrants been treated, both historically and in more recent times? Have they always been welcomed? Consider: Immigration Acts, race riots, Race relations Act, violence etc. * Emigration - leaving one's country for another * Immigrant - a person who leaves her or his home country and settles in a host country * Migrant - a settler in a host country It is quite safe to say that migrants have not always been welcomed with open arms by the host countries. Natives often see them as 'stealing jobs' and 'scroungers'. More often than not migrants have had to face racism on the grounds of their skin colour or because of their culture, be it a different religion or customs. Since 1992 European governments have introduced a range of measures to reduce the flow of immigrants into Western Europe. Both national governments and the EU have made it clear that they intend to strengthen 'Fortress Europe' against the further waves of immigrants from Eastern Europe and the less developed countries expected during the second half of the 1990s. In February 1992 the Polish government introduced new measures affecting migrants from Romania, Bulgaria, the former Yugoslavia and the former Soviet Union who travel through Poland on their way to Germany. Under the new measures migrants travelling through Poland would have to prove a Polish citizen
Contract Assignment.
Contract Assignment Elizabeth Pearce This problem question contains various issues that need to be explored. However, it is apparent that the primary concern is one of liability. The major question that needs to be answered is whether Smart Co can claim damages for the defective computer and whether Bright Co are liable for this. Thus it needs to be ascertained whether the terms implied by sections 13-15 of the Sale of Goods Act have been breached, and if so, whether the standard terms which contained the clause in question were incorporated into the contract. The issue of the extent of contractual liability for a breach often raises a question as to the effectiveness of an exemption clause. In this question we are specifically dealing with a limitation clause. An exemption clause is a term in a contract purporting to exclude or restrict the liability of one of the parties in specified circumstances; usually breach of contract, or other liability arising through tort, bailment or by statute. 'Exclusion' clauses are restricted to those clauses which remove, or purport to remove, liability. As mentioned, in this problem we are dealing with a limitation clause. A limitation clause is used solely for those clauses which do not remove, or purport to remove, liability entirely but, for
