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  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.
 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
Should the jury trial be abolished?
Should the jury trial be abolished? Introduction 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 and 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. Background 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 question. 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. However, this was abolished in 1215 and a need arouse to find a new method to establish guilt. Judges who went out on the circuit in England gradually developed the practice of selecting a trial jury of 12. The most important fact about the composition of the jury is that it is a random selection of ordinary citizens; twelve citizens
The most important aspect of Tom’s case is the fact that no reasons were given for the search.
. The most important aspect of Tom's case is the fact that no reasons were given for the search. It must be addressed whether the actions taken by the prison authorities, namely the tampering with of correspondence with his solicitor and the confiscation of his property would be held as lawful in a court. One perspective from which Tom could approach the issue is that which Craig1 identifies as the misuse of power argument. The House of Lords in Padfield2 said that if no reasons were given for a decision, as Tom has experienced, then it would be possible for the court to assume that none existed. The judgement in Padfield does not require all of the reason for a decision to be forthcoming, just one that supports the bodies policy or purpose of the legislation. Under this, the prison authorities would be obliged to justify their actions as "necessary to maintain order amongst the prisoners". As stated by Craig "It is a well known and oft repeated proposition that there is no general common law duty to furnish the reasons for a decision"3 In R v Higher Education Funding Council ex parte Institute of Dental Surgery4 it was stressed that the requirement to give reasons will depend upon the circumstances of each individual case. Reasons should be given if fairness demands it, or if there is a serious issue at stake, such as a person's liberty5. Craig goes on to clarify
Is homosexual activity immoral
Rochelle Manguino Student No. 993397891 Professor Jonathan Peterson, PHL243 March 25, 2005 Homosexual Activity is Not Immoral Homosexuality is a controversial topic for all groups and individuals alike - liberals, conservatives, religious, or secular. The morality of homosexual activity is a particularly long withstanding debate. Having carefully assessed the Natural Law and harm based arguments of Utilitarianism, I feel that homosexual activity is not immoral. Homosexuality is immoral according to the Natural Law, an argument I strongly disagree with. I begin by introducing the Natural Law, which refers to a type of moral theory governing human behavior. It contains the principles of reasonable action, is binding on everyone by nature, and contains the notion of right action - do good and avoid evil. Basic goods - that which makes human life go best and perfect our nature - include procreation, reasonable conduct, and self-integration. Under the Natural Law, it is immoral and unreasonable to intend to destroy a basic good. John Finnis, in his publication, "Law, Morality and Sexual Orientation," provides three claims that homosexuality violates the principles of the Natural Law. Firstly, homosexual activity does not allow the couple to biologically unite (specifically, the male and female genitalia). This unity is expressed only by sex, an act exclusive to
Law of Self-Defence
Criminal Law Essay LA15930 Level I In England & Wales, the defence of self-defence provides for the right of people to act in a manner that would be otherwise unlawful in order to preserve the physical integrity of themselves or others or to prevent any crime. In this essay I will be concentrating on two aspects of the law of self-defence in England and Wales, firstly the use of force in self-defence and the prevention of crime, and secondly why the law has been criticised in relation to people who confront intruders in their homes. Both characteristics have had a lot of criticism over the past few years with more and more people arguing that they should be able to defend themselves and their property from intruders without being charged for a reasonable attempt to safeguard their own. Doubts about the system of self defence have been discussed by a host of critics, namely by Mr Noel Sweeney in 2000 where he raised criticism of an inherent fault of English jurisprudence stating that "self-defence" is an all-or-nothing defence in that if it succeeds the result is an acquittal and if it fails there is no other verdict but murder. A major case establishing this is R v Clegg1 where D, a soldier, had fired at a stolen car being driven towards him at a checkpoint and killed a passenger. The House of Lords confirmed his conviction for murder because the trial judge had found as a
In law there are three different rules which have been set to interpret all rulings with, these are the literal rule, the golden rule and the mischief rule. The main rule is the literal rule
Timed essay Nathalie Hartland In law there are three different rules which have been set to interpret all rulings with, these are the literal rule, the golden rule and the mischief rule. The main rule is the literal rule. This follows the law to the word doing exactly what the law says it to. An advantage of the literal rule is that it respects parliamentary sovereignty. A big disadvantage though is that by sticking to the original meaning this can sometimes lead to absurdities and unjust solutions for example Whitley v Chapell (1868). The law says that when a person is voting that they are not allowed to impersonate 'any person entitled to vote'. By imitating a dead person and using the literal rule he was able to get away with it as he was not technically breaking the law as a dead person is not entitled to vote. The next rule is the golden rule. This is very similar to the literal rule, the spotlight is still the wording of the law but the actual meaning of a word can be modified to stop absurd outcomes. An example of this is shown in the case Adler v George. The defendant was charged with obstructing a member of the armed forces 'in the vicinity of any prohibited place'. He argued that 'in the vicinity' actually meant near to and because he was actually at the scene of the crime that he could not be charged. But the court applied the golden rule to make 'in
Impact of Digital Information on IP Law.
Impact of Digital Information on IP Law This essay shall focus on the impact of Digital Information, and particularly that of computer programs, on Intellectual Property law, and what can be and has been done to meet the demands of this dynamic new area of law. The essay will consider how computer programs have gone from being termed as a "literary work" under the Copyright Designs and Patents Act 1988 (CDPA) and worthy of no further protection than a Copyright, in both the UK and abroad, through to the judgment in the leading US case of Computer Associates v Altai1, in which judges stated "Generally we think that copyright registration, with its indiscriminating availability - is not ideally suited to deal with the highly dynamic technology of computer science... patent registration, with its exacting up-front novelty and non-obviousness requirements, might be the more appropriate rubric of protection for intellectual property of this kind"2. Digital Information can be defined as anything written in source and binary (object) code. These are both languages used for writing programs and other forms of digital information. The source code is slightly more coherent than the 1's and 0's used in binary, but neither would make any sense to anybody without expert knowledge of the subject. The impact of digital information on intellectual property law has increased considerably