Common-law systems make refer extensively to statutes, but judicial cases are considered the most important source of law, allowing judges to pro-actively contribute to rules. While in civil-law systems on the other hand, codes and statutes are designed to cover all
Common law can respond to cases, situations and facts that were not foreseen by legislators. Common law can examine and develop responses to real life situations. (Kenneally, A. and Tully, J. (2013) The Irish Legal system). Another main distinction between the two systems is the compulsory force of precedents.
Law enforcement officers and others in the system are expected to uphold the law and apply it free of personal moral beliefs. Moral relativism allows them to remove personal beliefs from the equation altogether, and judge based only on the law. In an ideal situation, the law will be administered as it is written, with moral judgments taking place at the legislative level, and not the enforcement level of
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.
1.1. What the law is? To answer this question we shall consider three particular approaches to law on account of the influence they have had and the insight which they give the nature of the law. Theories of Law: These are the theories of natural law, which defines law according to its content and looks to the problem of what law ought to be; a) Imperative theory b) Realistic theory a) The imperative theory It defines law according to formal criteria. It propounded by Austin.
Only the decision of the superior courts is source of law, as it is these court that decide on matters of law, whereas subordinate courts generally decide on matters of fact. The decision of Superior Courts namely as Federal Court, Court of Appeal and High Court. The judicial decision is based on ‘doctrine of binding precedent’. Precedents are the decisions made by previous judges in the same circumstances. There are two types of precedents.
This describes the impetus and scientific rationale for the development of the common law case-by-case basis (pg.118). As the body of the common law developed, it becomes more rigid and identifiable and has been solidified as a result of the system of case reporting (pg.117). Moreover, the doctrine of judicial precedent refers to judges referring back to past decisions to help them consider similar cases where the law and facts are alike. However, before judges reach the peak of their decision
2. Law had both the legal and metaphysical aspects which came to be accepted by society at large even though innate with caste distinctions or without egalitarian notions. 3. The Hindu theory did not recognize the human role in the creation of law. Law was deemed to be perfect, divine and
INTRODUCTION The essence of Judicial Review is supremacy of law. The court has the power to review the legislative and executive actions and also review the actions of judiciary, it is the power to scrutinize the validity of law or any action as to whether it is intravire or ultravire. It is a concept of Rule of Law. Judicial Review is the check and balance mechanism in order to maintain the separation of powers. Separation of power has rooted the scope of Judicial Review.
Judicial precedent is not arbitrary. Court have to use reason and apply the law logically, and so that their decisions are not merely arbitrary. One of the disadvantages of judicial precedent is uncertainty. The result of a court case can be uncertain until the final (appeal) judgement is made. Some judges may be unwilling to depart from a precedent to make a change in the law.