But the consideration changes if there is mixed question of law and facts. When there is a mixed question of law and facts, the inference drawn from the facts would be considered to be a question of law. This will not be the case when the issue concerned contains pure question of fact. Consequently, it becomes imperative to examine the understanding of substantial question of law as is used in this section. There is no strict test which is uniformly applicable in all the cases to determine whether substantial question of law is involved or not.
The current Jury system fits our Democratic society and the rights within the constitution. When the constitution was first created the Jury system was given the qualities obtained today. Changing or taking away the rights that have existed for so long is wrong. As said by the article Why Jury Trials are Important to a Democratic society, “The right to be tried by jury of your peers was so important that is merited inclusion in the highest law of the land.” The jury trials give a second chance to the accused. Also once left those people that were involved in the juries leave with a rare experience and have much more respect in the constitutional process.
Judicial precedent is the process whereby judges refer to previously decided cases with similar facts and apply those principles used in such cases. Where no statute applies to a particular legal case, the doctrine of judicial precedent comes in. These principles derived from the common law or case law. The English common law originated in the early Middle Ages in the King’s Court. Common law, like many early legal systems, did not originally consist of human rights but of procedural remedies.
Therefore, even in spite of the unfortunate order to the effect that the doors of the court during an emergency are completely shut for the detenus, it is gratifying to note that the concept of Rule of Law can be used as a legal concept. In the opinion of some of the judges constituting the majority in Kesavananda Bharati v. State of Kerala , the Rule of Law was consider as an “aspect of the doctrine of basic structure of the constitution which even the plenary power of parliament cannot reach to amend”
He writes that a theory of law must be free from ethics, politics, sociology, history etc. and must be logically self-consistent.1 Kelson is often described as a positivist. But Kelson’s normativism is conceptually distinct from the empirical tradition of legal positivism because it confuses law with fact. He rejects Natural law theory because it confuses law with morality. For Kelson, the law consists of norms:
The reason that a law is just, wise, efficient, or prudent doesn't give an ample justification for considering it to be the actual law. But different situations demand different manner in which the law should be implemented. This is where the theory of positivism comes in. According to positivism, laws are nothing but postulates i.e. a matter of fact of what has been posited (ordered, decided, practiced,
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.
The consideration given does not have to be fair. Bargain by one party to the contract in terms of the quantity of compensation is not subjected to legal court intervention unless there exists fraud or unacceptable conducts. Consideration, therefore, acts as the value of a contract. It brings the difference between a mere gift and a contract as the former is a voluntary act, and its breaching is not enforceable in the law courts. The only exception to the consideration rule is for the goods of a seal.
To assess this is not as straightforward for these courts are sui generic in nature. The ad hoc courts for starters do not replicate the rules of any one single legal system. Further their statutes contain no choice of law provisions making the interpretation of law difficult for lawyers, judges and commentators. There are various standards that can be used to assess this problem like binding obligations, human rights treaties to which the states are party etc. In order to counter these problems certain norms are referred to which are: 1.
Parties should always obtain legal representation to help prepare and present their cases in the most effective manner, and to ensure that their case abides by the rules of evidence and procedure. You can choose not to have legal representation, but you will most likely be at a big disadvantage compared to a party that does. Having experienced legal representation can also give the party an advantage to help question witnesses and obtain verbal evidence, therefore, helping find the truth. For trials held in higher courts, parties typically get two people to help with legal representation. They have a barrister who helps with presenting the case, and a legal practitioner who helps with preparing the case.