(b) Ratio Decidendi (reason for the decision) which uses the principle of law when deciding. When the judge makes a decision, he or she outlines the facts proven by the evidence provided in court. Then those facts are applied with the law and help the judge reach a decision for which he or she gives the reason (ratio decidendi) (c) Obiter Dictum (sayings by the way) has no binding power however it has a strong influence on subordinate courts. Ratio decidendi is the binding part of a judicial precedent and an obiter dictum is not because it is not relevant to the original case. But, the obiter dictum is a persuasive precedent.
For the civil law countries, judges are often described as “investigators.” They generally take the lead in the proceedings by bringing charges, establishing facts through witness examination and applying remedies found in legal codes .on the other hand, in the common system judges make a choice in the matters of law and when a jury is absent, they also collect facts. As a common law systems are adversarial, the judge is understood to be a neutral party . When it comes to court cases, judges in civil-law systems are more like investigators, while their equivalents in the common-law systems are rather arbiters between parties presenting arguments Moreover, where is each law method implemented? For the civil law case, it is wide-spread in Europe plus some countries from Asia. (Ex: China, Japan, Germany, France, and Spain).
The concept of judicial independence a fundamental important in United Kingdom legal system. The concept is enshrined in Act of Settlement !701. Not only does the judicial independence form an element in the concept of the separation of power and rule of law, but also it ensure two other powers apart from Judiciary fully comply with the constitution and the law. To begin with, the concept also emphasizes the safeguards for judicial independence. It is crucial the judge is independent and impartial.
Law nurtures the longing humans feel for a life driven by solid principles in a rational and orderly way. The “rule of law” stands immortally for the values of justice, objectivity and universality. Following the law is a practical and symbolic practice to demonstrate accountability and legitimacy. McEvoy (2007) defines legalism as “seductive” in the sense that its force tends to foreclose interrogatives from other perspectives that should be posited. Moreover, he points out that there is a tendency of understanding this legalist paradigm in a state-centric practice, which works through a top-down influence (McEvoy 2007).
Question 1 a. Common Law Definition of common law: The common law, sometimes known as case law, is the body of law that is based on the judges through the decisions made in court. In the system of common law, when a court decides and reports its decision regarding a specific case, the case then becomes a part of the body of law and can be used in cases that involve related matters in the future. Common law has been dispensed in the courts in England since the Middle Ages. It can also be found in the United States and in most of the British Commonwealth.
Unlike the dualist point of view for them the concept of sovereignty is not that supreme as dualist because in this view of international law the most important thing is cooperation and unity among state. International law was also label as a positive law. It was made in order to enforce settlement to conflicts among state. Actually the international law was drafted in order to manage world politics and international actors. International law must prevail in order to have equality among each individual in the world because international law protects the people over the unethical municipal laws of a certain country or state.
English Law comprises of two parts which is common law and equity. The extent of the applications of English Law is prescribed in Section 3, and Section 5 of the Civil Law Act 1956. The application of English Law in Malaysia is not binding, but merely persuasive. The courts will have regard to the circumstance of the States of Malaysia. This was made clear by the Privy Council in Jamil bin Harun v Yang Kamsiah (1984) 1 MLJ 217 – “It is for the courts of Malaysia to decide, subject always to the statue of law of the Federation, whether to follow English Law.
Common law is a legal system that the court is bound to follow the decisions used in antecedent case; this rule is called stare decisis. Common law legal system initiated in England and spread to countries that used to be colonized by England which includes, United States, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia. However, common law system has both advantage and disadvantage. My opinion towards the question that asked “whether the doctrine of precedent mean that judges in common law system make law or not” is that, I think the judges in common law do make law. Both civil law and common law have an assumption that the judges did not make the laws,
[ Ibid. ] Natural law can exist without the governance of a superior being through the usage of positive law. Positive law is needed because of the insufficiency of the natural law to direct man in the practical affairs of his life. A state has the power to make laws then oblige the subjects in conscience to obey in order to provide the benefits of a well-ordered life. With or without a superior being, there will still be an authority that is capable of making laws to ensure the common good based on natural law along with positive
The solution must be found keeping in mind the present social needs as well as the wisdom of the past. • Jurisprudence is often said to be “the grammar of law”. It throws light on the basic principles of law. • It helps in the accurate interpretation of law by ascertaining the accurate meanings of laws passed by legislators. This is of great help to lawyers and judges.