Some believe that the separation of powers is essential for the rule of law and others that a pure separation would be inefficient. E.G Henderson[ Foundations of English Administrative Law: Certiorari and Mandamus in the Seventeenth Century ( Cambridge, MA:Harvard University Press, 1962), p. 5] wrote that the separation of this threefold division is a necessary condition for the rule of law in modern society and therefore for democratic government itself. Berent[ An Introduction to Constitutional Law ( Oxford: Oxford Uniiversity Press, 1998), p. 129], shared Hamilton's view and stressed upon the fact that although the judiciary is weak and do not enjoy wide legislative powers, there is no liberty if it is not separated from the other two branches. Barber[ Prelude to the separation of powers (2001) 60(1) Cambridge Law Journal 59,59-64] on the other hand, stated that partial separation would be more efficient due to checks and balances within the constitution. No institution has absolute power.
Both the harm principle and legal paternalism are aimed at upholding an individual’s liberties within the law. However, they argue different view points and restrictions. The harm principle is chiefly concerned with upholding an individual’s right to somehow harm oneself, while legal paternalism says the law can interfere to prevent an individual from harming oneself. This is the most obvious distinction between the two philosophies. Dworkin’s argument for legal paternalism, however, uses Mill’s argument against him, and ultimately proves to be the stronger principle to justify law.
These can be in two distinct ways, a binding or persuasive precedent. A binding precedent in the common law system requires a court to follow a previous decision of that court or a higher court in the jurisdiction. The current decision must involve issues and key facts similar to those involved in the previous decision. A court can circumvent a precedent, which would otherwise be binding, by distinguishing it on the facts or on the legal principle
7, issue 2, 2010, 204.]. Also another justice, Benjamin N Cardozo defined law as a “principle or role of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged[ E. Meiners, The Legal Environment of Business (12 ed.) Arlington: Cengage Learning, 2014]. Legal philosopher Hamann kantorowicz characterized law very broadly as “a body of social rules prescribing external conduct and considered justiciable”[ J. Trevino, The Sociology of Law: Classical and Contemporary Perspectives (2 ed.). New Brunswick and New Jersey: Transaction Publisher, 2001].
1.Introduction The purpose of this essay is to critically discuss the importance of the development of the Roman law concept obligatio. The obligatio can be looked at as a watershed in the scientific discipline of jurisprudence. The term itself, in its most literal form means that something or someone is bound. Justinian advanced the famous definition ‘Obligatio est iuris vinculum, quo necessitate adstringimur alicuius solvendae rei sceundum nostrae civitatis iura’ which can be loosely translated as: an obligation is a legal tie which binds us to the necessity of making some performance in accordance with the laws of our state. This essay will explore the concept obligatio from its earliest form in ancient Rome through history (until) the
In another reference, Professor John Chipman Gray explains that an opinion of the court that carries precedent must have two things; the opinion must come from a judge and secondly, due to said opinion, a particular decision was arrived at and becomes a binding precedent. This opinion, of course, is not merely statement of thought but rather is vital for the forming of the ratio decidendi. Thus, one cannot mistakenly label this as obiter dictum.
. Dworkin uses Hercules in many cases such McLoughlin v. O’Brian in order to show how Hercules might decide this kind of hard cases and considered some possible interpretations . For instance, Hercules gathers together principles within the precedents and other legal decisions and then makes a decision, where basically in practice the judges engaged in an interpretative exercise to ensure that his interpretation fits with the legal system of Dworkin’s idea of law of integrity . The important disagreement that has to be mentioned is that Hart says that judges have different answer in any case and separates the answer in easy cases from hard cases. 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 .
Accordingly to realist theory the judges are deciding cases on the facts of each particular case considering various psychological and sociological factors. The majority of lawyers now recognize that judges are taking into account also political implications of legal rules and decisions. In theory this means that the same profile cases can have various outcomes and be decided differently even when the judges are being not mistaken, reasonable and honest. This thus explains why legal realism theory concentrates so much on the indeterminacy of law. Accordingly to realists the law is rationally indeterminate when the “class of legal reasons”, in other words the grounds for judicial decisions, such as statutes or precedents, are not able to justify
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. Hart proposes the idea of primary and secondary rules. The primary rules are rules that govern behaviour, in other words primary rules either require or prohibit certain actions. While secondary rules are rules conferring power to make primary rules. Central to Hart’s theory is the rule of
Describe the working of Judicial precedent. Explain the advantages and disadvantages of precedent. Working of Judicial precedent The working of Judicial Precedent is based on stare decisis also means the doctrine of binding precedent where the lower courts decisions are bound by the decisions of the high court and the court of appeal follow by the high court when the decisions is only bound by the court of appeal but not by the lower court decisions and lastly the court of appeal where it is not bound by lower court decision and its previous decision although it might follow uniformity. Advantages and disadvantages of precedent. Advantages of precedent (1).