"For my part, I do not think that the time has yet arrived when it is possible to state the law in a way which will deal with all the practical problems which may arise in this difficult field, consistently with everything said in the cases." - Discuss
"For my part, I do not think that the time has yet arrived when it is possible to state the law in a way which will deal with all the practical problems which may arise in this difficult field, consistently with everything said in the cases." Mustill L.J. in Grant v. Edwards [1986] I Ch 683 @ 651 D-E. Consider whether this statement is still true today. The statement made by Mustill L.J in Grant v Edward (1986),1 raises difficult, but absorbing issues. The courts have frequently expressed the view that it desirable, for the transfer of the property to contain express declaration of trust concerning the beneficial interest. Nevertheless, in reality, this is not always the case. It is frequently encountered, as is always seen in this area of law, that couples do not formulate their intentions at the time of the conveyance and purchase of the property, but consider the matter only when their relationship has dissolved. Thus, the law in this area is widely regarded as unsatisfactory. The Existing Law It has been suggested that Lloyd's Bank v. Rosset2 removed all doubt and conflict produced by earlier authorities as to when and how one could acquire a beneficial interest in the matrimonial home.3 However, the case is leveled with criticism. Lord Bridge distinguishes between two completely different types of cases: First Category - the establishment of a constructive trust
"Criminal Law and morality are inherently connected. It would not be possible to separate the two even if this were thought to be a good idea in principle."
"Criminal Law and morality are inherently connected. It would not be possible to separate the two even if this were thought to be a good idea in principle." Before approaching the argument as to whether or not criminal law and morality are inherently connected, I believe that it is essential for us to understand the two terms clearly. Criminal law is by definition a set of rules, which embody community values of what is wrong and harmful. Ideally it seeks to protect society and individual's rights although it must me said that in a situation wherein there is a clash between the two the former is often given more preference than the latter. Morality is basically a set of principles concerning the distinction between right and wrong or good and bad behavior. If we assume that a crime is an immoral act one can easily conclude that criminal rules and moral rules are one and the same. But the crucial question that we are posed with is this: Are all crimes immoral? I for one believe that there are some immoral acts, which are not crimes and vice versa. I will discuss this aspect as I proceed with the remainder of my essay. A brief look at the origin of the law or the application of the law in ancient times will makes its inherent connection with morality very evident. In ancient times, morality and religion were synonymous. Both the lawmakers and the laws they dictated were
"In developing the doctrine of supremacy of European law, the European Court of Justice acted in a manner that was not only justified, but moreover indispensable to reach the fundamental objectives the Member States had agreed upon in the Treaty of Rome"
"In developing the doctrine of supremacy of European law, the European Court of Justice acted in a manner that was not only justified, but moreover indispensable to reach the fundamental objectives the Member States had agreed upon in the Treaty of Rome" Do you agree? The European Court of Justice has asserted that "the essential characteristic of Community [law is] its primacy over the law of the Member States"1, and has justified this statement in terms of its obligation to give effect to the intention of the Member States and the objectives of the Treaty2. This paper will use technical and theoretical analysis to determine whether or not the Court was justified in proclaiming its jurisprudence supreme. It will then examine the models of consent-based legitimacy which make the doctrine of supremacy allegedly 'essential' to the objectives of the Treaty, drawing a theoretical analogy to suggest where the doctrine of supremacy will lead us. I Intention, Consent and Reasoning: Was the Court Justified in Creating the Doctrine of Supremacy? Laws created by institutions of the European Community have primacy over the national laws of its member states. This is the doctrine of supremacy. This fundamental doctrine is not written in any of the founding treaties: it was invented by the European Court of Justice in the van Gend en Loos3 case, and has been expanded ever since by
"It is becoming increasingly difficult to predict whether in any particular case the courts will or will not adhere to the principle of separate corporate personality as confirmed in SALOMON v SALOMON & CO LTD (1897)."
"It is becoming increasingly difficult to predict whether in any particular case the courts will or will not adhere to the principle of separate corporate personality as confirmed in SALOMON v SALOMON & CO LTD (1897)." The principle of separate corporate personality has been firmly established in the common law since the decision in the case of Salomon v Salomon & Co Ltd1, whereby a corporation has a separate legal personality, rights and obligations totally distinct from those of its shareholders. Legislation and courts nevertheless sometimes "pierce the corporate veil" so as to hold the shareholders personally liable for the liabilities of the corporation. Courts may also "lift the corporate veil", in the conflict of laws in order to determine who actually controls the corporation, and thus to ascertain the corporation's true contacts, and closest and most real connection. Throughout the course of this assignment I will begin by explaining the concept of legal personality and describe the veil of incorporation. I will give examples of when the veil of incorporation can be lifted by the courts and statuary provisions such as s.24 CA 1985 and incorporate the varying views of judges as to when the veil can be lifted. Finally I will state whether or not I agree with the given statement. When a company receives a certificate of incorporation it has a 'separate legal
"It would be regrettable if a court had come to the conclusion that in a situation where the need for intervention of the court had been established that intervention was prevented by rules as to standing." (Woolf LJ in R v A-G ex p ICI 1985)
* "It would be regrettable if a court had come to the conclusion that in a situation where the need for intervention of the court had been established that intervention was prevented by rules as to standing." (Woolf LJ in R v A-G ex p ICI 1985) Are the courts so prevented? Should they be? An inherent difficulty appears in the law's attempts to provide a division between those who deserve to have standing for judicial review of an administrative decision and those who act merely as "busy bodies." Justification is necessary as to why some individuals and groups' applications are deemed acceptable whilst others are not. These decisions are naturally driven by the limitations on the resources of the judiciary, the available time and money should be used as efficiently as possible. Yet, as society broadens its outlook and becomes more cosmopolitan and pluralist, those who wish to question a judgment may become more diverse as may their reasons for the challenge. The UK today comprises more discernable groups of the population than could be recognisable in the past, which suggests that there are also numerous different views on certain contentious topics and that a number of different interests may be affected by a decision taken on a particular issue. As the number of applications for judicial review grows the requirement of standing becomes evermore important to constrain
"Judicial Precedent must be followed even if a judge thinks that the decision is wrong", discuss.
QUESTION : "JUDICIAL PRECEDENT MUST BE FOLLOWED EVEN IF A JUDGE THINKS THAT THE DECISION IS WRONG". DISCUSS. A precedent is a previous case that serve as an example to be followed. In Mirehouse v Rennel (1833), it was clearly stated in the opinion of Baron Parke given to the House of Lords that precedent must be regarded in subsequent cases and it was not for the courts "to reject and abandon all analogy of them". The doctrine of binding precedent became firmly established only after the second half of the nineteen century. It was encouraged by the declaratory theory of the common law. The principle behind this doctrine is that a decision made by a court in the superior court in the system, is binding on other courts in the subsequent cases where the facts are similar. It is firmly for the requirement of certainty, uniformity, consistency and flexibility of the law. There are two requirements that must be followed if a precedent is to be binding. First of all, there must be a ratio decidendi statement. It is a statement of law raised by the facts found upon which a judicial decision is based. This is in contrast to other statements of legal principle put forward in a judgment which are not directly relevant to the matters in issue. Such statements are called obiter dicta. Secondly, the court must have a superior or if not, an equal status to the court considering
"Looking at the rules alone is inadequate - It assumes that judges actually do adjudicate in the way in which the rules say they should" - Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation.
"Looking at the rules alone is inadequate. It assumes that judges actually do adjudicate in the way in which the rules say they should". Discuss with reference to the 'rules' and examples of the operation of precedent and statutory interpretation. The statement seems at first glance to offer a much generalised and often contested view of the separation of powers embodied in constitutional theory. That is to say that Parliament makes laws and the judiciary as slaves to the rules, should simply apply them to a particular case. This perhaps is what 'ought' to happen, according to the fundamental nature of rules and the impression that word 'rule' renders; i.e. that following a particular pattern cannot lead you astray. However the broader implications of this narrow position is that judge's decisions are straightforward and mechanistic in appearance, which as we shall see in the operation of precedent and of statutory interpretation, could not be further from the truth. The obvious starting point for this piece of writing is to state that the rules governing statutory interpretation and precedent 'should' be foolproof. After all, anything contrary to this would call into question Parliamentary Sovereignty and it's competence in performing its legislative functions. But to submit to the assumption that judges adjudicate only according to the rules leaves us open to much
"Assess the effectiveness of each type of law making process"
"Assess the effectiveness of each type of law making process" Theoretically, the two main types of law in society should work together to achieve justice and keep the community functioning smoothly. Generally this is successful as statute and common law balance out one another to suit the needs of the whole population. However, imagine a nation that operates entirely on only one type of law making process. Until each procedure is assessed, this does not sound such a radical notion, yet the truth reveals that not one class of law is entirely effective. Statute laws are passed by either the State of Federal Parliament, whereas common laws are made by judges according to precedent. When a decision is required in a courtroom, a judge cannot avoid a case. If they did, there would be no point in attending the hearing to have a dispute resolved. This is in contrast to the parliaments. If a controversial or sensitive topic arises in which a law should be made, the governing party may choose to ignore the issue to prevent a particular group in society becoming offended. The matter of reconciliation is a perfect example where the Liberal party have chosen to avoid making a treaty - or a binding contract, with the Aboriginal people of Australia. The issue will not cease to exist, so will continually be a subject of discussion and debate until it is resolved, however the current
"Critically discuss the role and importance of international commercial arbitration as an alternative dispute settlement mechanism in international trade today."
INTERNATIONAL ASPECTS OF BUSINESS LAW Subject: "Critically discuss the role and importance of international commercial arbitration as an alternative dispute settlement mechanism in international trade today." Introduction Dealing with the role and importance of international arbitration as an alternative dispute settlement mechanism in international trade today raises two questions. First of all, the question of the "role" of international arbitration implies the following set of questions: Why arbitrate, in the sense of how can it be a better way of solving a commercial dispute than going before the court ? In other words, how does the arbitration make the dispute resolution between the given parties easier ? And what are the attractive attributes of international commercial arbitration ? As for the "importance", it is directly linked to the role of international arbitration through the enforceability of awards or judgments. Indeed, the international scope of arbitration depends on the willingness of the parties to favour this alternative dispute resolution and as a consequence, relies on the network of international arbitration treaties and "pro-arbitration" legislation around the world. No one would adopt such a settlement mechanism unless it could be recognised and enforced in its own country. Almost every international commercial controversy poses a critical
"Discuss The Differences Between Civil and Criminal Law in the English Legal System"
"Discuss The Differences Between Civil and Criminal Law in the English Legal System" There are many significant differences between civil and criminal law in the English Law System, the main being that criminal law is a case brought to an individual by The State and in civil cases an individual against another individual. Criminal law and civil law are two "different" types of law all together. Criminal and civil law have two totally different purposes. The purpose of criminal law is to allow people to live a orderly and ensure people can go about their everyday lives- road traffic rules, marriage rules, divorce law, consumption of alcohol, faulty goods and employment rules are all there to ensure an efficient society. Civil law is there to provide a system for individuals to resolve their disagreements in a way, which is both efficient and ultimate. Neighbour disputes and defamation (also known as libel and slander) are two examples of civil law. Criminal law also covers areas such as welfare, benefits, housing and education. The two branches of law have two different terminologies and sentencing. In criminal law the case is brought to the court written as "R v Nunn", the "R" stands for either Rex or Regina (King or Queen), this represents the State. The last part is the surname of the defendant. In a civil case the layout is the surnames of the claimant (first name) and