Secondly It is only the ratio decidendi, which is the legal reasoning behind the decision which is binding. The ratio decidendi of a case is defined as a statement of law that the judge applied to the facts of the case and upon which the decision is based. The other statements of law made by the judge are called Obiter dicta. Only the ration decidendi of the case can be a binding precedent. Obiter dicta may have a persuasive authority.
Finally, woven within the points I stated above, I will be sure to anticipate potential counterarguments and weigh them against my thesis. To better understand Dworkin’s arguments, I will first explain tenets that a legal positivist theory such as Hart’s must accept by nature of a positivist theory. Firstly, a legal system is a set of rules used by authorities to maintain order within the society, and these rules are distinguishable by their
The remedy for the obligatio was always the action in personam as the obligatio was an agreement between two parties rather than a party and a thing. 2.2.Natural obligations As stated the obligatio was enforceable via the Actiones Cilivies but there were many cases where the creditor had no efficient way of enforcing his obligatio, this is known as natural obligations. These were not legally enforceable, but still had legal consequences; in effect the law recognizes some aspects of the transaction but does not help the creditor in enforcing his right. The concept of Natural obligations has survived into the modern ages, The South African law still uses the term natural obligations in the circumstances set out above. The German Civil Code, in addition, still recognizes non-binding obligations, i.e.
However, Dworkin’s argument for many years was that there would always be one right answer to any legal problem and that it is impossible for judges to make law, therefore, in other words even if there is no relevant statute or judicial precedent, judges must identify and state the law, rather than making it . Dworkin believes that the theory of judicial process is based on the distinction between policies and principles . On the other hand, Hart claims that law is made up of rules only and that judges make use of these rules when deciding a case, Dworkin, rejected Hart’s description of legal positivism that legal system contains only rules when legal system comprehends principles as well . The distinction between policies and principles can be identified in his books Taking Rights Seriously and in Law’s Empire . He defines that “a policy is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political or social feature of the community (through some goals are negative, in that they stipulate that some present feature is to be protected from adverse change)” .
Two of the premises Davidson assumes are especially controversial. One requires that for every causal interaction, there exists a strict law of nature covering that interaction. Davidson does not seem to have much evidence to back up this claim. The other controversial premise states no true strict laws contains mental types. Davidson 's reasons for distinguishing the mental and the nomological are generally regarded as mystifying.
The first thing that must be discussed in order to answer the question appropriately is: What is truth? This is a really difficult question to answer. There is a big difference between something that is believed to be true and something that is true, basically because if something is believed to be true is not completely certain or accurate, could be one way or another. On the other hand something that is true is certain and definitive and no questions are raised, but there are many types of truth as well. According to Daniel Patrick Moynihan “Everybody is entitled to their own opinion, but they're not entitled to their own facts” which means that everyone can believe in what they want, but their facts must be able to be seen and understood
Stare decisis is Latin for “to stand by things decided.” Stare decisis is the doctrine of judicial precedent. This doctrine is a decision of the court used as a source for future decision making by which precedents are authoritative and binding and must be followed. Hazel Genn (2015) proffers that “the doctrine of judicial precedent is fundamental to the operation of common law, in practice, it means that a judge deciding a case will look for precedent – a decision in an earlier similar case -…” One of the earliest statements on the rationale underpinning this doctrine was made by Parke J in Mirehouse v Rennell (1833) when he stated: "Our common law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised."
Because there no one is an expert in every part, even the data can analyse by computer, the decision maker will even require specific skills to expound the solutions that have been made. If resources are limited, otherwise lack of information and capability to analyse limited decisions. One of disadvantages of the method is the lack of time also lead to suboptimal decisions as in this case the decision-maker does not have time to evaluate all the choices and come to a rational choice. While lack of time leads to improper and sub optimal decisions, as one does not have the required time to process the information
The lower courts must refer to the mandatory precedents of superior courts. However, the superior court judge will differentiate the case before him and the cases that put the precedent and may decide not to comply with mandatory preceding if he considers that the compulsory precedent is unrelated to the case before him. From this, original precursors are formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judges to apply persuasive precedent.