When the defendant’s wrong does not fit in any of these pigeon holes he is said to have committed no tort. Hence this theory of Salmond is also known as pigeon hole theory. However the theory of pigeon hole has been criticized by the latter writers as they feel this theory, if accepted, will put an end to the growth and evolution of the new categories of liability in tort and the Courts could be prevented from identifying any new torts based on the violation of the legal rights of a person. Torts are infinitely various and not limited and confined. The novelty of claim may arise and Court may recognize a novel claim.
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. There are a number of defenders of rule of law who have emphasized the need for the same kind of safety. He also discusses clarity as to which norms are to be declared as law. Hart had earlier argued that rule of recognition serves a very important purpose in peoples’ understanding of which rules can be secretively enforced by the society. However, in the Postscipt of his book, the Concept of Law, he says that the need for certainty is not a requisite condition.
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
Despite the wide use by politicians, judge and academics the law has been described as an elusive notion. According to political theorist Judith N. shklar "the phrase 'the Rule of Law ' has become meaningless thanks to ideological abuse and general over-use", but nevertheless this phrase has in the past had specific and important meanings. Dicey’s concept of Rule of Law contains three principles: Absence of Arbitrary power or Supremacy of the law: No man could be punished by the authorities except for breaches of law. In other words, all government actions must be authorised by the law or government must act within its legal authority. Equality Before Law: No man is above the law and everyone, whatever his condition or rank is subject to the ordinary laws of the land.
The author stresses that no specific guidelines or instructions have been laid out when it comes to determining the ratio decidendi. The first issue tackled by the author is dealing with the phrase ratio decidendi itself. This phrase confuses most people because the ratio or the reason behind a decision is not necessarily the binding part of the precedent. It is clear that the actual judgement is the important precedent, not the mechanisms behind arriving to the decision such as the arguments, opinions, analysis and so on. Most cases show that although some reasoning for the decision is utterly wrong or even to the extent of being illogical, the case becomes a binding precedent regardless.
Yet, the Judgement at Nuremberg demonstrates an essential jurisprudential debate which is the main core of the question of law and justice in post conflict situations. As said before, the central issue of the plot that can also be seen between the two main characters of the movie is the capacity of law to judge itself. But, how could be understand the main core at the heart of law? One way to understand it is through the previously studied natural law position, which alleges that law must have a necessary basic core to be perfectly understood as law. Another way is through the other legal positivism which affirms that law must simply be detectable in a formal way as to be law.
This is clearly against the consideration doctrine saying that consideration has to be sufficient for contracts to be valid. Also, promissory estoppel can only be used as a shield but not as a sword which limits its application as laid down by Combe v Combe  2 KB 215. It is therefore reliance-based on the defendant and is incomparable with the consideration doctrine which can be applied on its own as an independent doctrine. There are areas which promissory estoppel would not be applicable, and to “allow promissory estoppel to substitute for consideration would be a mismatch which confuses the different bases for
This Parol evidence rule, which has been considered as a common law rule, prevent the parties to the written contract from providing any additional extrinsic evidence, which reveals an ambiguity and refines it, in addition to the terms prescribed in the written contract which appears as complete. The supporting justification to this rule is that since the parties to the contract have signed a final written contract, the extrinsic evidence of the terms and agreements held before should not be taken into consideration while construing the contract, as the contracting parties had already excluded them from the contract. In simple words, one may follow this common law rule to avoid any contradiction with the written contract. This rule is related
INTRODUCTION John Austin is considered by most to be the creator of the school of thought known as positivist school. Austin's famous formulation of what could be called the “dogma” of legal positivism is as follows: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation. He was the first writer to approach the theory of law analytically (as contrasted with approaches to law more grounded in history or sociology, or arguments about law that were
That is a difficult distinction to make in practice, as most losses contemplated by the parties are losses that will arise ‘naturally’ from the breach. When a contractual clause excludes or limits liability for ‘consequential’ loss or damage, as a matter of law, it only excludes loss under the second limb. The scope of such exclusion may therefore be far narrower than commercial negotiators realise. In particular, they may believe that it excludes liability for all loss that is a consequence of a breach including, for example, loss of profit. But the law often regards loss of profit as a direct loss.