But these are limited in use to certain circumstances. The binding part of the judgement is called the ratio decidendi and later courts are bound to follow legal principles on which the decision was based if their case contains similar facts, as for example, in Donoghue V Stevenson (1932) a precedent was set that a customer could sue a manufacturer in negligence. Obita Dicta (other things said not directly related to the decision or dissenting judgements), are persuasive rather than binding precendents, as seen
In this essay I will explain the arational actor model, its contributors, and its characteristics in comparison to the rational actor model and being irrational. I will further explain the rule making process and the rules that bureaucrats make to implement, prescribe, or interpret legislation. This is very important process that takes a great deal of discretion to interpret laws correctly. Plain and simple, sometimes congress passes legislation that is in a very-hard-to-understand dialect. The very own bureaucrats have trouble interpreting the laws, but it is their job to interpret, implement, and prescribe the laws.
The traditional view of the law making process is that parliament makes the law though acts of parliament, as they are democratically elected to make law, whereas judges aren’t so they merely apply it in court to the cases presented to them. However through judicial precedence and statutory interpretation judges are often seen to be making the law, which is shown in McLoughlin v O’Brian where this case introduced the principle of “secondary victims” to be able to succeed in nervous shock. Generally the courts operate a doctrine of precedence which makes every court bound by the decisions made by the courts above it in the hierarchy and courts will be bound by their own precedent decisions. This doctrine is where judges should follow similar decisions made in previous cases to maintain a degree of certainty within the legal system and is based on “stare decicis” which means to stand by what has been decided. However the practice statement allows the supreme court to change the law If they believe that an early case was wrongly decided, but
This new American law that was developed was based on the ideals of the settlers but was also greatly influenced by English law. A few things that were taken and used in forming American law were the English court system, the Magna Carta slash English common law, and the English bill of rights. There were more than just these four things, but these make up the main source of English influence on American law. The English court system is much older than people tend to think it is, granted it has changed over time, but he base has stayed
Law should be interpreted through the contextual analyses of what people do in law versus focusing on finding the essence of Law as it criticizes Legal Positivists for doing. It is also critical of how it disregards other social factors such as race, class and gender. From Legal Realism, Artifactualism adopts the belief that there should be a focus on what people in positions of law actually do instead of what they are supposed to do. Law is a platform for social interactions to occur and how civil servants carry out their duty is based on many influential powers and relations within society. It is also a means to find equality among the different members of society.
On the other hand, the liberals, or Judicial Activists, believe that the founding fathers recognized that standards of their time wouldn’t apply to the future, so therefore left the constitution broadly based and available for contemporary interpretation. In my opinion, as in many others, Judicial Activism is just an excuse for justices to rule based on personal opinion. The judicial branch of the government needs to show judicial restraint because of the variety of the cases they receive. They need to make sure that the rulings they enact are rulings that follow the constitution and not their own personal beliefs as they have been doing for some time now. In my opinion, the most important example of judicial restraint being in need in American history occurred on May 20, 1940.
How can he help it?” The constitutional role of the judiciary is to apply the law that parliament makes, as said by Lord Diplock, “Parliament makes the laws, the judiciary interpret them/” However, judges have the power to change the rules or make new rules through precedent or statutory interpretation, as mentioned in R v Sigsworth (1935) by Lord Denning, “We fill in the gaps.” In England and Wales the courts operate a very rigid doctrine of precedent which has the effect that every court is bound by the decisions made by courts above it in the hierarchy and in general courts are bound by their own past decisions. The doctrine of Precedent is the process whereby judges should follow previous decisions in similar cases to help maintain a degree of consistency in the way the law is applied in similar cases. It is based on the maxim “stare decisis” which means stand by what has been decided. The Ratio Decidendi (reasons for deciding) is the binding part of a judge’s decision, but how judges interpret this can vary, thus changing the impact it can have on future decisions. The obiter dicta (things said by the way) though not binding can still be used as persuasive precedent and so a
Information will also be given on the extent of protection the Constitution provides for the right of privacy. Finally, an explanation of why each case had to be heard and interpreted by the Supreme Court will be provided, as well as how the Court’s decision on each case affected the rights of American citizens today. Several provisions are in place which affects our civil rights. The primary responsibility of justice system is to ensure that those in authority maintain the people’s rights. “No right is absolute” (Patterson, 2009, p. 86).
Administrative discretion is the exercise of professional expertise and judgment, as opposed to strict adherence to regulations or statutes, in making a decision or performing official acts or duties. Decision making ability comes to mind when thinking of administrative discretion; and when making decisions, public administrators have to rely on the professional expertise of others in an attempt to make their decisions and then use their judgment when making decision(s). As indicated in the text book Max Weber view is that there is the principle of fixed and official jurisdictional areas, which are generally ordered by rules, that is, by laws or administrative regulations. The regular activities required for the purposes of the bureaucratically governed structure are distributed in a fixed way as official duties; the authority to give the commands required for the discharge of these duties is distributed in a stable way and is strictly delimited by rules concerning the coercive means, physical, sacerdotal, or otherwise, which may be placed at the disposal of officials; and methodical provision is made for the regular and continuous fulfillment of these duties and for the execution of the corresponding rights; only persons who have the generally regulated qualifications to serve are employed. In my interpretation of Max Weber's views; laws are in place in society
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Judiciary is the system of courts that interprets, and applies the law, in the name of the state or federal government. A court with judicial review power, may invalidate government laws and decisions that are incompatible with a higher authority, such as the terms of a written constitution. Judicial review is one of the checks and balances in the separation of powers, so no one branch of government can accumulate too much power. The power of the judiciary is to supervise the legislative and executive branches, with their job being to review the law, and interpret the constitution.