However legal concepts are not so narrow to cover every situtation and its context. Instrumentalists disagree with formalism as the law does may often be vague and inadequate thus unable to make conclusive arguments. Because of this, legal discretion needs to be exercised and further law needs to be established in more difficult cases. Despite this criticism, Lyon in the Cornell Law Review is of the view that we should not reject legal formalism in its entirety as it does allow for legal certainty, but rather recognise the theories
The important pros is the impact that it has on parties’ relationship. Unlike distributive bargaining which creates a win-lose situation leading to strain between both the parties, integrative bargaining does not strain the relationship between parties instead it takes the party’s interest into account leading to a strong relationship between parties. Since the focus here is on the merits of the issues, it creates a sense of legitimacy and purpose for the negotiator. Since the focus will be on merits, it does not provide any room for manipulation and personal strategies. Integrative bargaining is a problem solver because it focuses on merits unlike distributive bargaining which focuses on victory.
The doctrine of precedent requires all courts to follow previous decisions even though some cases may be decided wrongly. It does not mean that the precedent is a bad decision, but its application may not be suitable for other cases. It would not be fair to decide a case unjustly because of the unsuitable binding precedent.18 Another advantage of judicial law-making is that as they are made based on real situations, they are more practical than the ones based merely on
It is through my subjective experience that I am able to formulate concepts. However, McGinn is also correct in pointing out that there are limitations to one’s cognitive processes. I admit that my cognitive closure towards McGinn argument. I still find that Nagel more plausible, as there is room for discovery and investigation. While McGinn has rejected the problem
The rationale of the reforms was to avoid litigation and promote settlement between the parties at dispute. Among the most popular reforms were, Pre-Action Protocols, Part36, Judicial Case management and Alternative Dispute Resolution. The overriding objective of the reforms as introduced by Lord Woolf was enabling courts to deal with the cases justly and proportionately. Pre-Action protocols can be considered as one of the most significant innovations of Woolf Reforms. The purpose of these is to encourage exchange of early information about the claim so that litigation is avoided.
There is no perfect justice, just as there is no absolute in ethics, but there is perfect injustice, and we know it when we see it.” Alan Dershowitz PROS • You Know Your Legal Rights One of the best things about being a lawyer is that you know what your rights are. It will be easier for you to determine if your rights are being violated. It will also help you understand the legal consequences of a particular act and you may find your way out of trouble. • Wide Selection of Career Option Having a degree in law can help you get jobs a little easier than others, simply because it is flexible since you can choose if you would like to work in a private or public sector. You can even become a criminal prosecutor, to be able to help make this world a safer place not just for your family but for everyone.
Additionally even though the second stage successfully limits the wideness of neighbour principle ,It is still considered to be too wide as the ‘policy considerations’’ itself is a wide concept. Therefore, due to its expansionist tendencies and fear of releasing the floodgates the House of Lords overruled Anns in Caparo v Dickman  and Lord Bridge of Harwich established the guideline for imposing duty of care. Under the ingredients of Caparo the claimant must establish that the damage done by the defendant was reasonably foreseeable and there was sufficient proximity amongst them. Lastly, the situation must be one that the court considers it fair, just and reasonable to impose a duty of care under the given circumstances’. Furthermore, Lord Bridge stated that in addition to foreseeability which Anns mainly focused on, the relationship of proximity or neighborhood is also a necessary element of imposing duty of
Discussion: The Act as a simple mechanism Avoiding Inconsistency: inconvenience in commercial life and other legal actions By acknowledging right of TPs have in contracts, where benefit is intended to confer on them, The Act helped to limit inconsistency in cases. For example, in Bourne v Mason, TP was allowed to enforce promise in contract, contradicting to Price v. Easton, where plaintiff could not recover. In these cases, even reasoning varied in judgments. Such inconvenience greatly affects the commercial life. Barrister and Law professor Stephen Guest criticized that "…it undermines the social interest of the community in the security of bargains and it is commercially inconvenient" .
This allows them to focus on the merits of the dispute without concern about its public impact, and may be of special importance where commercial reputations and trade secrets are involved (Mark, 2012). The final outcome can also be made private if the parties so stipulate and agree. On the other hand, court cases, judgments, and opinions are usually open to the public and the press. Alternative dispute resolution (ADR) processes are usually more flexible than the court process. Resolutions can be tailored to the needs
The advantages include; • It avoids absurd result; like in the case of Adler v George • It aids in the prevalence of justice; as seen in Re Sigsworth case The disadvantage include; • It leads to the judges performing the duty of a legislator if caution is not taken; like in the cases that have be seen, the court had to give a secondary meaning to the literal meaning and if caution is not taken, they would be performing the duty of a legislator. • No real means of testing absurdity; “... Provides no clear means to test the existence of the characteristics of absurdity, inconsistency or inconvenience, or to measure their quality or extent...” (bitoflaw , 2003) Mischief Rule This rule is more like a principle it allows the court interpret the statute according to what the law was before the Act was passed. Four principles were given in Heydon’s case (1584) for the court to follow and they are; • What was the common law before the making of the