The legal principle or rule made by a court which leads judges in sebsequent cases with similar issues or facts. To present as precedent for a pending case‚ a preceding decision must have a similar question of the law and factual situation. The judges are required to follow and apply the principle in past decisions to a current case which have similar situation. There are two principle which is Vertical Stare Decisis and Horizontal Stare Decisis. Generally‚ Horizontal Stare Decisis is the court have
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will begin by analysing the label of ‘judicial formalism’. Sir Owen Dixon stated that formalism is the application of ‘strict logic and high technique’‚ which is taken to mean that formalism advocates strict and complete adherence to legal doctrine and precedent. 3Opponents of formalism claim it to be the unrealistic and idealised notion that legal reasoning is an autonomous‚ neutral and rational process that is to be distinguished from the partisan and arbitrary world of politics. 4 Formalism is
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interpretation about statutes. This kind of law is based on the doctrine of precedent‚ that is‚ the judges should follow their decisions and the decisions of other relevant courts in similar cases. There are two kinds of precedents: binding precedent and persuasive precedent. In respect of binding precedent‚ the lower court has to follow the decision from the higher court in the same hierarchy when the cases are similar. However‚ in persuasive precedent‚ the courts do not have to follow other courts’ decisions
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such classifications. Racial discrimination has a noxious past in the United States. In Plessy v. Ferguson (1896)‚ the Supreme Court upheld racially segregated public facilities‚ in a doctrine of “separate but equal.” But in Brown v. Board of Education (1954)‚ the Court reversed this doctrine holding that the doctrine of “separate but equal” in which the black and white races were segregated in public schools and other places of public accommodations‚ was “inherently unequal” and denied African Americans
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interpret the law. This can be seen that somehow they are making law but the question arises whether this is lawful or not. Declaratory theory is ignored by various ways. Judges make law by stating that the fact is significantly different from the cited precedent. The English judiciary continues to maintain its institutional commitment to the declaratory theory of law‚ a theory that can be traced back to Blackstone and beyond. In short‚ what appear to be changes made to the law‚ by judicial decision‚ are
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"What does substantial performance mean in the context of discharge or termination of contractual obligations on the basis of performance? A contract may be terminated by discharged of performance once both contracting parties have completely fulfilled their contractual obligations. A general rule of discharge by performance requires the complete and exact performance of the contractual obligations.1 Once performance has been completed it is required that payment be made. However‚ if a contracting
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Answer 1(a) Unwritten law is law that has not been enacted by the legislature (Parliament and the State Assemblies) and this law is not found in the written Federal and State Constitutions. This law is found in cases‚ which have been decided by the courts and local customs. Unwritten law is mainly comprised of: 1. English Law English law forms part of the laws of Malaysia. English law can be found in the English common law and rules of equity. However‚ not all of England’s common law
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based on the loan contract he signed? Rules The case of Commercial Bank of Australia v Amadio[1] and Blomley v Ryan[2] demonstrate the bank’s conduct were unconscionable. The court look at 3 main elements to determining whether to activate the doctrine of unconscionability. • Special disadvantage: A person’s ability to look after their own interests is affected. • Knowledge of Special disadvantage : The other party knows or ought to know of the disadvantage. • Taking unfair advantage of special
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was supported by the Supreme Court in R V Shummoogum 1977 MR 1 and Legoffe v Severy 1981 MR 89 2. Sources of Mauritian Law (a)Legislation The Constitution Primary Legislation Secondary Legislation (b)Judicial Precedents (c )Customs (d) Books of Authority/Legal Doctrine The Constitution A constitution is a set of rules‚ generally written‚ which identify and regulate the major institutions of the state and govern the relationship between the state and the individual citizen. In most countries
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independence of the judiciary was ensured by the act of settlement 1700‚ which transferred the power to sack judges from the crown to the parliament. Consequently‚ judges should theoretically make their decisions based purely on the logical deductions of precedent‚ uninfluenced by political or career considerations. The eighteenth century legal commentator‚ William Blackstone‚ introduced the declaratory theory of law‚ stating that judges do not make law‚ but merely‚ by the rules of precedence‚ discover and
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