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.
It can be arguably said that the loss of confidence on the administration of justice. The courts have decided on the ends without looking at the means of the ends. Lord Templeman stated in Reid that propitiatory rights applies when if it is a bribe but not secret benefits is undesirable as it goes to blameworthiness or moral culpability which does not promote principal reasoning or justification for the use of
The denial of moral authority, asserts Hegel, need not entail extreme subjectivism. The right of the subjective will, this moral self-determination, is itself qualified by the right of the rational. ‘The right to recognise nothing that I do not perceive as rational is the highest right of the will.’ Rationality is a constraining frame which even my reflection in conscience must conform – the issue of conformity will re-appear . There surfaces an epistemological worry: whatever the phenomenological powers of my belief, they cannot guarantee its truth. Put simply, my reflection can get things wrong.
It often differs from country to country like in United States the independency is understood to begin after the appointment of the Judges to the court. One thing that is beyond dispute is that the Independence cannot be extended to an extent where it results in absolute independence i.e., detachment between the three wings of the government as this will certainly lead to corruption. Therefore a reasonable way to maintain independency is to strike a balance between independency and to ensure that the purpose of the independency is not used in a manner so as to downplay the possible presence of prejudice which can
It is essential to state the material facts to enable the opposite party to know the case he is required to meet. Failure to state the material facts will result in dismissal of the suit. There is a difference between ‘material facts’ and ‘particulars’. Particulars support the material facts and they do not affect the decision to be taken. Pleadings should not state the evidence- Pleadings should contain a statement of material facts on which the party relies but not the evidence by which those facts are to be proved.
Thus, we cannot assume every material mentioned by the judge is important or binding when we are talking about ‘binding precedent’. So, it is important to identify ratio decidendi and obiter dicta. The important element for the purposes of binding precedent is statements which contain the principles of law applicable to the legal problem based on the facts found.
It differs from person to person. Anyone can look at a case and see it differently, although it is the same case. It lies in the eyes of the beholder. Thus I feel that law is not always fair, and I also believe that it was not meant to be fair. The law is meant to be applied impartially and without bias.
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,
The reason we call this cannon and not “rules” is because only the judiciary need not do the interpretation and by calling them rules it can be fallacious argument. The three canons of interpretation are: 1) The literal rule 2) The mischief rule 3) The golden rule The Literal rule-This rule of respects the sovereignty of the parliament .In this rule the judges interpret a statute by not what it exactly means, but by what
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: