The novelty of claim may arise and Court may recognize a novel claim. Salmond’s critics believe tort law is a system based on the principle of protecting the legal rights vested in a person and the society (“right in rem” and right in persona” ) and the courts as the guardian of law have to be allowed the flexibility to interpret the
The primary concern surrounding common law is the tension between the appeal for absolute confidence in judgments and the requirement for versatility. The common law system is also criticised for moving too lackadaisical due to it being reactive to changes in litigation and because judges of late do not see their purpose as bringing extensive reforms. Frederick Schauer, a professor of law at Virginia University, opines that the common law’s infatuation with stare decisis ‘are all located in the vicinity of the related ideas of stability, reliance and proportionality.’ He also goes on to
International law has no central authority and operation as an anarchic highly decentralized legal order. Nevertheless, the absence of an authoritarian figure to enforce penalties does not mean that international law should not be considered “real” law. Law is still applied, but practiced and enforced in different ways. Overall, international law is considered “real” law because system of rules, established by binding agreements, that aim to regulate the actions of its members, but with different characteristics practiced in the domestic arena, where there is legislative, judiciary, executive, and police
Thus, the existence of judicial precedent often prevents judges from developing legal principles in accordance with societal developments. The disadvantage of judicial precedent is strict rules can cause injustice in individual cases. This is because each case is different and so it is unjust to simply applying the same reasoning as in the past. This injustice is hard to solve because only a superior court faced a cases of injustice in order to overturn the precedent. In addition, judicial precedent is rigidity.
Development of equity: Unlike the common law, equity was never meant to be an autonomous system of law. It presupposed the existence of the common law, which it complemented and amended. The history of equity is very much connected to the common law writ system, the inflexibility of the common law, the Lord Chancellor and the Court of Chancery. Petitions to the King in Council to do justice were made as a result of the rigidity of the common law system. At first, an act in the King’s courts began only with a writ.
First of all, the precise content of the constitution would be difficult to determine. This is due to the unwritten sources of the constitution such as conventions that while constituting an extremely important source, mostly undefined and not legally binding. It is suggested that it would be advantageous to gather the conventions on a specific subject together, preventing them from losing their flexibility while accommodating some of the advantages of codification such as clarity and organization. However, it would be an obvious disadvantage to include them in the constitution as legally binding obligations, as they are not only difficult to define but they would also lose their essence of binding purely on a non-legal
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,
(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.
Introduction Undue influence is a vital concept under the contract law. It exists in situations where one party to a contract entered into an agreement with the other party due to the result of pressure exerted to him by that other party. The innocent party who has been subjected to the pressure may then seek an action to set aside the said contract. Undue influence can be said to be developed from the doctrine of duress under the English Common Law. Hence, it can be said that undue influence has certain similarities to the doctrine of duress under the English Common Law, such as rendering a contract to become voidable, except a few distinctive features.
Beside customary law, there is also judicial decisions which the decision of high courts in previous cases must be followed by the lower courts in similar cases or situations. Judicial decisions can be obtained from the decision of the superior courts namely as Federal Court, Court of Appeal and High Court. Judicial decisions are divided to two categories which is binding and persuasive. In binding categories, all decisions of high courts bind the lower courts but the High Courts are bound by their own decisions. While in persuasive categories, High Court judges are not bound to follow the decisions of another High Court Judges but can refer to decisions from outside of the Malaysian courts (English Court).