Premium Essay

Doctrine of Law

In: Social Issues

Submitted By famt90
Words 1253
Pages 6
Critically analyse the strengths and weaknesses of precedent and statutory interpretation in the UK’s legal systems
The doctrine of precedent arises (stare decisis) from the common law implementation in UK courts. This goes back to King’s Henri II (the King’s Bench) whereby past decisions were dispensed throughout the kingdom. The reasons and main advantages of the same are to ensure consistency/uniformity and predictability, thus creating confidence in the legal system.
The stare decisis (stand by what is decided) enacts the requirement on the courts to follow/abide by the previous rationes decidendi of previous cases. Mainly, the lower courts will abide by precedent decisions due to the hierarchy invested therein (Binding precedent).
In 1966, the House of Lords (now known as UK Supreme Court) referred to the doctrine of precedent as “…an indispensable foundation upon which to decide the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for the orderly development of legal rules”.

However, the House of Lords advised that:

“…that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.”
This Practice Statement was further...

Similar Documents

Premium Essay

Doctrine of Equivalents Under Thai Law

...DOCTRINE OF EQUIVALENTS SUPREME COURT JUDGMENT NO. 6572/2550 (Excerpt) The Supreme Court upheld the decision of the Central IP & IT court as followed; The question before this court is whether the defendants’ poultry feeder infringes the plaintiff’s patented poultry feeder according to the patent number 9634 or not. The Supreme Court considers Section 36 bis which states that the scope of the rights of the patentee under Section 36 in respect of a patented invention shall be determined by the claims. In determining the scope of the claimed invention, the characteristics of the invention as indicated in the description and the drawings shall be taken into account. From this provision, the defendant’s poultry feeder will infringe the plaintiff’s patented poultry feeder number 9634 if the defendant’s poultry feeder has the scope of the invention like those indicated in the patent claims. The scope of the claimed invention shall take into account the description and the drawings. The scope of protection for a patented invention shall extend to the characteristics of the invention which, although not specifically stated in the claims, in the view of a person of ordinary skill in the pertinent art, have substantially the same properties, functions and effects as those stated in the claims. In this case, the poultry feeder patented number 9634 has 11 claims. When comparing the defendant’s poultry feeder which is patented in the USA, it can be considered that the defendant’s...

Words: 322 - Pages: 2

Premium Essay

Firat Will

...Date Instructor The at-will employment doctrine “employment at-will means that employers are able to terminate ones employment at any time, for any cause - with or without notice. (Rogers, S. 2012) was put into place to protect both the employee and the employer. By making the employment at-will both the employer and employee can void the contract at any time without repercussions. The "Employment At Will" Doctrine was created in the US in the late 1800's. This Doctrine was favored by employers since it gave them extreme freedom to run their business as they saw fit and protected them by the courts at the same time. As with most things that have too much freedom, abuses occurred that eventually gave rise to employee’s up-rising by joining unions. Due to this and the Civil Rights laws implemented in the 1960's, companies started documenting their policies regarding how, why, and when an employee could be terminated. The courts then held companies accountable for following their employee manuals which in recent times have made companies scrutinize their manuals very closely and frequently” (Butsch, R., & Kleiner, B. H. 1997) Many people assume that with the at-will doctrine being put into place would stop employers from taking advantage and still fire people at any time, whenever they felt like it leaving that employee floundering with unexpected loss of income. That assumption is only half right; the At-will doctrine means that an employee can leave also whenever......

Words: 2496 - Pages: 10

Premium Essay

At-Will Employment

...Bus 311 The at-will employment doctrine “employment at-will means that employers are able to terminate ones employment at any time, for any cause - with or without notice. (Rogers, S. 2012) was put into place to protect both the employee and the employer. By making the employment at-will both the employer and employee can void the contract at any time without repercussions. The "Employment At Will" Doctrine was created in the US in the late 1800's. This Doctrine was favored by employers since it gave them extreme freedom to run their business as they saw fit and protected them by the courts at the same time. As with most things that have too much freedom, abuses occurred that eventually gave rise to employee’s up-rising by joining unions. Due to this and the Civil Rights laws implemented in the 1960's, companies started documenting their policies regarding how, why, and when an employee could be terminated. The courts then held companies accountable for following their employee manuals which in recent times have made companies scrutinize their manuals very closely and frequently” (Butsch, R., & Kleiner, B. H. 1997) Many people assume that with the at-will doctrine being put into place would stop employers from taking advantage and still fire people at any time, whenever they felt like it leaving that employee floundering with unexpected loss of income. That assumption is only half right; the At-will doctrine means that an employee can leave also whenever......

Words: 2557 - Pages: 11

Premium Essay

Void Of Vagueness Doctrine

...The Vagueness doctrine is derived from the due process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution that demands any new criminal laws created, must be done so in a way that its significance is informal enough for an ordinary individual to understand. The common conception of this statute is that the law will be regarded as unconstitutionally vague, pending the instance of an individual of rudimentary aptitude, who is unable to determine regulated individuals, verboten conduct, or the reprimanding that might be obligated under a certain law. A criminal statute is deemed unconstitutional, if it’s so ambiguous that the respondent is entirely unable to grasp the full significance of the charge being levied against them and are left unable to defend against it. Subsequently, these individuals would then be denied due process and this is where the void of vagueness doctrine comes into effect (Void for Vagueness Doctrine....

Words: 569 - Pages: 3

Premium Essay

Business Law Wk6 Reflection

...of the state. The Bolsheviks continued by confiscated artworks for possible sale abroad. In May 1933, Stephen C. Clark was a trustee of the Museum bequeathed the painting to the Museum after he died in 1960. The Museum of Art motioned to dismiss Konowaloff’s complaint, citing that the claims are barred by the act of state doctrine. Rules of the Law(s) Applied to the Case The law applied in this case was the act of state doctrine, which states, “local courts may not question the legal effect of a foreign state’s acts fully executed within its own territory” (US Legal, 2013). Therefore, the court dismissed the action against Metropolitan Museum of Art. Analysis: How the Court Applied the Law The United States Court of Appeals, Second Circuit applied the act of state doctrine to this case because the art work was confiscated from Konowaloff’s family by the Bolshevik regime in Russia. Hence the act of state doctrine states that no other nation is sovereign within its own borders, and its domestic actions may not be questioned (US Legal, 2013). Therefore, the court concluded that the Museum had met its burden of showing that the act of state doctrine applies and affirmed the judgment. Holding The United States Court of Appeals, Second Circuit found in favor of the Metropolitan Museum of Art because Konowaloff’s contentions were without merit, and found that the act of state...

Words: 682 - Pages: 3

Free Essay

Changes to Missouri Castle Doctrine

...intended to modify the current state statute commonly referred to as the Castle Doctrine, specifically 563.031, RSMo. The proposed bill was analyzed in conjunction with the proposition set to be voted upon by the house and senate later this year. One significant change to the Castle Doctrine imposes a duty to withdraw or retreat from the location where the doctrine is invoked. The other major change includes opening up civil liability to anyone who invokes this doctrine. While the bill expands on a fairly ambiguous concept, it runs the risk of subjecting common citizens to scrutiny of the law typically reserved for law enforcement professionals.   Missouri Representative Randy Dunn has sponsored a proposed change (HB 1940) to the current Castle Doctrine as represented in part by 563.031, RSMo (2007). The Castle Doctrine as it currently stands allow Missouri residents the ability to defend themselves in their dwelling, residence or vehicle with force up to and including the use of lethal force. This use of force is based upon self-defense against a person imposing or threatening to impose physical force or violence against the resident. Residents protected by this doctrine have rights under this provision against civil and criminal scrutiny. House Bill 1940 proposes clarification to what constitutes a last resort for residents placed in a situation of potentially invoking the Castle Doctrine. This clarification includes that, whenever possible, there has to be an......

Words: 798 - Pages: 4

Premium Essay

Separation of Powers

...of accountability. This is not interference but a system of checks and balances in the interest of good government. But separation of powers does not mean insulation of powers because the three organs of the State, particularly the Executive and the Legislature, are at one level or another bound to interact and indeed complement each other in the running of the affairs of the State (World bank, 1992). In essence, the doctrine of separation of powers is that for a free and democratic society to exist there must be a clear separation between the three branches of government, namely:- The Executive This is the branch that executes the business of government. It comprises the President, Vice-Presidents and Ministers, the Public Service, the Defence Forces, the Police Force and other law-enforcement organizations. All the administrative, law-enforcement and coercive organs of the State fall within the Executive Branch, making it potentially the most powerful of the three branches of government unless its powers are subject to limitations. The Legislature This is the law-making branch....

Words: 1327 - Pages: 6

Premium Essay

Employment at Will Doctrine

...Employment at Will Athena Locklear Professor Ellen Kapalko Legal 500: Law and Ethics in the Business Environment July 22, 2012 Employment at Will Doctrine At will employment is a doctrine of American law that defines an employment relationship in which either party can break the relationship with no liability, provided there was no express contract for a definite term governing the employment relationship and that the employer does not belong to a collective bargaining group (i.e., has not recognized a union). Under this legal doctrine, any hiring is presumed to be “at will”; that is the employer is free to discharge individuals for good cause or bad cause or no cause at all. The employee is also equally free to quit, strike or otherwise cease work. “The right of an employee to quit the services of the employer, for whatever reason, is the same right of the employer, for whatever reason, to dispense with the services of such employee” (Halbert/Ingulli, 2012). Since 1959, several common law and statutory exceptions to at-will employment have been created. Common law protects an employee from retaliation if the employee disobeys an employer on the grounds that the employer ordered him or her to do something illegal or immoral. However, in the majority of cases, the burden of proof remains upon the discharged employee. “The earliest adjustments to the doctrine of employment at will were made as workers fought for the......

Words: 1719 - Pages: 7

Premium Essay

Section 4 of Mflo

...Law, whether divine or manmade, is always for the well-being of the human beings. In other words, laws are ultimately related to life experiences which are not a monopoly of the theologians only.1 As the society is not any constant phenomenon, it inevitably changes every moment. As a result laws are needed to be changed in compliance with the changing demands of the society. In Islamic Legal System as well the iron fist of taqlid (the doctrine of imitation) had to give way to ijtihad (meaning independent and free exercise of intellect to interpret interpretation of Islamic laws). It is always open for and permitted to, the thinkers, lawmakers and the rulers who are entrusted to apply shariah in society. In this short commentary I intend to address a particular issue relating to the orphaned children’s inheritance right. This is an extremely practical anomaly of the Doctrine of Representation usually escaping our notice/ Grandchild’s inheritance right: the Islamic Law The Islamic law of inheritance does not all together deny the grandchild of the propositus their right to inheritance. Sunni Law places them in the list of quranic sharers. Unless excluded otherwise, they inherit from their grandparent. The doctrine of representation comes into question in case of allotment of their shares. The doctrine is accepted at least for two purposes:2 A) For the purpose of determining who are entitled to inherit However while using the......

Words: 739 - Pages: 3

Premium Essay

Separation of Power

...It should be remembered that the notion of the doctrine is in the assumptions that the three organs of the government and its functions should be distinguishable from one another. The idea of abandoning the notion of the doctrine means all functions of the government can be performed by one organ for example executive takes all government functions like enacting the law, interpreting the law, provides people’s welfare, determines the rights of the people. In our opinion, we do not wish to abandon the doctrine of separation of power but however, this notion shall follow the Montesquieu approach as he provides for a separation of power that aims at having separate institutions doing separate function by separate personnel and having the checks and balance that will control the powers of these organs. The doctrine of separation of power cannot be abandoned because of the following reasons: The doctrine avoids the abuse of powers. This means that when a single person or a group of people have the extreme amount of power they can become dangerous to the citizens. As it was put forward by John Locke that “it would be a great temptation to human weakness if the same person to make law has the power to extinguish them because they may exempt themselves from obedience to the law or may suit the law in the making and execution to their private advantage”. Thus, the doctrine of separation of power is a method of removing the amount of power in one group's hands and controlling......

Words: 731 - Pages: 3

Premium Essay

Legal 310 Wk2

... the right to review a Texas state law? The question was whether burning the flag was protected under the First Amendment right to free speech. The Supreme Court held that it was. The fact that a U.S. Constitutional right was asserted gave the Supreme Court federal jurisdiction. 2. Suppose that Johnson had burned a Texas state flag instead of the U.S. flag. * a. Would the U.S. Supreme Court have jurisdiction to hear the case? * b. If the Supreme Court did hear the case, do you think the decision would have been any different from this case? 3. The Supreme Court could hear the case and the result would more-than-likely have been the same because the actual issue was the Right to Free Speech under the U.S. Constitution, not whether the criminal law was state or federal. 1. What is the doctrine of separate but equal? “Separate but equal” doctrine announced by this Court in Plessy v. Ferguson, 163 U.S. 537. Under that doctrine, equality of treatment is accorded when the races are provided substantially equal facilities, even though these facilities be separate. “The doctrine first enunciated by the U.S. Supreme Court in Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896), to the effect that establishing different facilities for blacks and whites was valid under the equal protection clause of the Fourteenth Amendment as long as they were equal.”1 2. What did the Court say about that doctrine in this case? That equal treatment...

Words: 731 - Pages: 3

Free Essay

Discuss Advantages and Disadvantages of Doctorine Precedent

...disadvantages of the doctrine of precedent.   Judicial precedent concerns itself with the influence and value of past decisions of case law and prior legal experience. The doctrine of precedent means that judges refer back to previous decisions to help them decide similar cases where the law and facts are alike. A fundamental principle upon which the doctrine of judicial precedent rests, is that a hierarchy of courts is needed if it is to operate. The concept of stare decisis, meaning to stand by what has been decided, forms the basis of the doctrine of judicial precedent. The notion is that like cases should be treated alike for the sake of certainty and consistency which, it is argued, leads to fairness.   The effect of this is that, ordinarily, the legal reasoning on a point of law made in an earlier case must be followed. If all courts, regardless of their status or seniority, were able to set precedent, the doctrine of judicial precedent would be a nonsense as it would be practically impossible to determine which precedent took precedence!   The doctrine of judicial precedent has overcome this by the requirement that all courts are strictly bound to follow decisions made by the courts above them in the hierarchy. In addition appellate courts are normally bound by their own past decisions. However, there are advantages and disadvantages.   Any discussion of the advantages is likely to include the point that the doctrine provides certainty in the law. This means......

Words: 2748 - Pages: 11

Premium Essay

At-Will Employment

...At-Will Employment Law | Exceptions, Risks, and Direction | Ehren Stellrecht, Sadie Nelson, Jesse McNaught BUS 305-01 | Introduction Employers today take many risks in running their businesses.  Whether they are large or small employers, hiring and firing personnel is a fact of business.  Termination (and therefore hiring) is increasingly viewed with caution, in part, because of the uncertainty regarding the law surrounding termination of employment.  We will examine the law pertaining to employment relationships by exploring the employment-at-will doctrine.  We will show how the at-will doctrine has evolved since its inception; then we will discuss whether the United States is generally moving toward just-cause employment.   History and Explanation of the At-will Employment Doctrine Horace Wood is attributed with the creation of the at-will doctrine in 1877 in a legal treatise called Master and Servant where he described at-will employment.  Some scholars say the United States had no such doctrine in the common law before this time and the use of Wood’s treatise in case law allowed a large step to be taken away from the English idea of employment rights.  One oft quoted, early decision describing and favoring the at-will doctrine is in a Tennessee case, Payne v. Western & Atlantic Railroad Co. in which the judge declares “All may dismiss their employees at will, be they many or few, for good cause, for no cause[,] or even...

Words: 4012 - Pages: 17

Premium Essay

Student

...What are the important issues with the At-Will Law? Law545x Fall 2015 Sullivan University Charles Wayne Wood Abstract Introduction In exploring the history of the At-Will law I hope avoid first person to review the positive and negative effects on the At-Will law dealing with employee and employers, does it help both new sentence?? I will explore contracts between employees and employers, how can they be terminated, and if so does the employee get paid till the end of the contract. I will discuss the possibilities of just causes on the employee or employer can they be used to terminate the contract. awkward Do the different states have laws that help the employees or the employer? At the end of this research I hope to show trends in the law as it has changed in the past 10 to 15 years. The History of the Law The At-Will law was first created? by Horace Wood (1877). As my research has let me to believe Mr. Wood only created the concept of At-Will employment, he stated that the courts have already accepted it as the doctrine of the time. Mr. Wood’s statements were the catalyst of what’s the beginning of a number of new laws creating the At-Will employment doctrine. In his writing Sandler (2000), also agrees that Mr. Wood helped the courts pull away from the rules and laws set by the English at the time and helped to establish the new law for the USA. The general rule in American employment......

Words: 3724 - Pages: 15

Premium Essay

Uoi V R. Gandhi/ Madras Bar Association V Uoi: Case Analysis

...UOI v R. Gandhi/ Madras Bar Association v UOI, (2010) 2 Comp LJ 577 (SC). Author’s Name: Aditi Tambi Registration Number: 11A008 TABLE OF CONTENTS Introduction………………………………………………………………..2 Rule of Law…………………………………………………………………4 Separation of Power……………………………………………………….6 Development of Tribunalisation in India………………………………..8 UOI v R.Gandhi……………………………………………………………....10 * Facts………………………………………………………………....10 * Issues………………………………………………………………...12 * Contentions of Petitioner………………………………………….12 * Contentions of Respondent………………………………………...13 * Provisions of Law in Question……………………………………...13 * Judgment……………………………………………………………...15 Conclusion………………………………………………………..20 INTRODUCTION The author in the in this project will deal with the case for and against the Tribunalisation of company law in India. The following discussion culminates from the Constitutional Bench Judgment of the Supreme Court that upheld the establishment of the National Company Law Tribunal (NCLT) and the National Company Law Appellate Tribunal (NCLAT), in an appeal filed by the Union of India against a Madras High Court judgment. The case in discussion is Union of India v. R. Gandhi / Madras Bar Association v UOI. What was effectively held in the judgment was to uphold the legislative competence of the Parliament to create the NCLT and NCLAT. In the present case, upon recommendations of Eradi Committee, constituted to suggest measures to avoid unnecessary delay in litigation,......

Words: 7805 - Pages: 32