As mentioned as above, under rule of law everyone shall be fair and equal in front of law. One of the important element In Raz’s principle is the independence of judiciary has to be guaranteed. This showing the judicial independence is the fundamental structure of the idea rule of law. In case M v Home office, it implies that even though the individuals representing the executive, the courts still have power to grant remedies against a minister in his office capacity. The courts are armed with coercive powers exercisable in proceedings for contempt of
A prima facie case, then, is one that is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced by the other side. In Man bin Abbas, Howes J. seemed to indicate that when a prima facie case at the end of the prosecution case was made out, and the defence was called, the magistrate must convict should the accused elect to remain silent. In case of PP v Chin Yoke where the court has applied this approach held that the prosecution must prove their case beyond reasonable doubt in order to allow the calling of the defence. In Ong Kiang Kek v PP, Wee Chong Jin CJ stated that no conviction can be warranted unless at the close of the case for the prosecution, the court is left with no reasonable doubt as to the guilt of the accused. Besides, a similar approach was adopted in PP v Saimin where Sharma J upheld that the prosecution must be able to established the burden of proof throughout the trial.
In the judicial and quasi judicial context, this concept is backed by the basic underlying rule of “Justice must not only be done but also seen to be done”. In this background, the Doctrine of necessity gives legitimacy to decision making by ignoring the possible bias. According to this doctrine, a decision maker subject to disqualification owing to bias or conflict of interest can nevertheless make the decision if: 1) no other decision maker who is competent is available 2) no other competent decision making body can be constituted 3) quorum can’t be achieved without including him In such scenarios, the doctrine of necessity overrules the rule against bias. The logic of the doctrine of necessity is that, if there is a choice between allowing a person with bias to make a decision or to stifle the
He says that justice involves the idea of equality. He goes on to argue that the use of justice can’t be described in terms of the idea that justice and generality, as a legal ideal, might share. Laws should be very clear and it should be specified as to which norms have the status of law. Hart discusses this and takes the stand that they should not be the end-all of legal morality. Thus, as far as primary rules are concerned, Hart argues that there is a need for certainty, so that these rules can be applied by general public without any official guidance.
The dominant legal discourse that reflects these practices is therefore not unified, but is more like a network that has some centre points, usually the major states, but also some subdued discourses that subsist at the edges. Unlike Kelsen’s premises, securing the unified logic or consistency without contradictions is not a function of the discourse; it is rather the other way around: the law allows to keep up commitments in spite of contradictions enables political coordination at the same time. Still, there is a place for something like a Pure Theory of law. It can still observe the legal practice, the dogmatic and philosophical reasoning and serve as an ideology critique, pointing out when and how a legal practice dissolves into some form of mythical thinking and showing how moral and legal theory try to ignore the post-foundational philosophical
The first one being the formal school and the second one being the substantive school. The formal school also known as the traditional school considers the way in which the law is enacted. While the substantive school, that builds on the formal school rather than contradicts it, inspects to the content of the
There are three traditional rules of statutory interpretation: • the literal rule • the golden rule • the mischief rule The three traditional rules of the statutory interpretation form a hierarchical order i.e the court must apply the literal rule first, and if the rule seems ambiguity, then the golden rule can be used and if the golden rule doesn’t make any progress in the decision taken by the court, the mischief rule can then be applied in the court. The mischief rule and the golden rule are mostly used in court decisions because of the meaning and the effect they give towards legal decisions. Literal rule The literal rule is one of the rules used in interpreting statutes and this is always the first rule used by the judge to interpret statutes before applying the other rules in the court. The rule interprets the words of the statute purely and it is according to their literal meaning. When using the literal rule, the court should ensure that the statutes are interpreted plainly and given ordinary meaning without minding the outcome of the interpretation might result to or be.
On the other hand, and I think is more arguable, Dworkin specifies that there is a right answer to any legal problem and so it is impossible for judges to make law . Dworkin explains that judges have to make moral judgments, the choice of the judge in law as integrity. The role of mistakes fits actual practice, as in Donoghue v Stevenson where the judge found principles and the beginning of the law of
Legal Positivism Legal Positivism is the view that law is separate from morals. Law and morals are completely separate, the validity of law is not assessed on its morals but is assessed on its procedure. Did the people who make the law have the authority to do it? Kelsen and Hart provide two modern theories of Legal Positivism. Kelsen theory is relevant to decisions makers who wish to know what the law is, because the theory deals with the grounds for law and its validity.
It is the power exerted by the courts of a country to examine the actions of the legislatures, executive and administrative arms of government and to ensure that such actions conform to the provisions of the nation’s Constitution. Judicial review has two important functions, like, of legitimizing government action and the protection of constitution against any undue encroachment by the gov¬ernment. The power of Judicial Review is incorporated in Articles 226 and 227 of the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32 and 136 of the Constitution, the judiciary in India has come to control by judicial review every aspect of governmental and public