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History and development of common law and equity
The development of common law and equity
Later development of common law
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Question:
“How does knowledge of British Legal History affect your understanding of the subject of Common Law and legal reasoning?” You¬ may choose any topic from the Common Law syllabus to illustrate your answer.
Answer:
What is Common Law? Common Law, which also known as case law, is the ancient law of England based upon societal customs and recognized and enforced by the judgments and decrees of the courts. Common Law is not the same as statutes, which are made in the Parliament by the Members of Parliament (Act of Parliament) and approved by the Executive body. Case law embodies the principles and rules of action and they apply to the government and every individuals of the state. Today, Common Law serves as the basis of the legal system in England and most of former British colonies (now known as Commonwealth countries), such as India, Hong Kong, Malaysia, Singapore,
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The precedent is legally binding on future cases with similar facts or issues. Judicial precedent refers to the source of law where past decisions of judges create law for future judges to follow. According to the Black’s Law Dictionary, precedent is defined as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.” The doctrine of stare decisis, in Latin for “to stand by things decided” , is a legal principle that once a decision has been made on how the law applies to a particular set of facts, judges are required to treat similar facts of later cases in the same way. This will lead to certainty and consistency in handling future cases. The principle of judicial precedent works in the way of hierarchy of courts, meaning that the decision of higher court binds the lower court and the lower courts must oblige to follow it. For example, High Court is bound to follow the decision made by the Supreme
The Pennsylvania Supreme Court held that although the doctrine of stare decisis plays an important role, standing precedent can be abandoned to allow for evolving societal standards of behavior or expectations.
McOskar Enterprises, Inc. owns and manages a health and fitness center identified as “Curves for Women”. Tammey J. Anderson, the complainant, joined Curves on April 2, 2003. As part of the joining process Anderson signed a release of liability agreement. This agreement released Curves from any liabilities related to injuries that might be sustained by contributing in any activities or through the use of equipment. The agreement also stated that participants agreed to all risks of death or injury that could occur, Anderson read and signed the agreement of terms with Curves. After completing the liability agreement, Anderson began working out under the observation of a Curves’ trainer using the machines within the facility. During the workout Anderson notified the trainer that she began to feel pain in her neck, shoulder and arm, but finished her workout. She continued to feel the pain when she got home and pursued medical attention. As part of her prescribed medical treatment she was sent for a course a physical therapy. In June 2003 Anderson underwent a cervical discectomy, a procedure used to treat nerve or spinal cord compression. After her procedure Anderson sued Curves, claiming negligent acts during her workout. Anderson v. McOskar Enterprises, Inc., 712 NW 2d 796 (Minn. 2006).
Tort, one of the crucial subjects of study when analyzing common law jurisdictions. Tort, is an action which causes another person or party to suffer harm or loss []. The person who has committed a tortious act is called the tortfeasor while the person who suffered harm or loss from such act is called the injured party or the victim. Although crimes may be torts, torts may not be crimes [] simply because a tort may not have broken a law. In fact, one must understand that the key idea of tort is not to punish the tortfeasor(s) but rather to compensate the victim(s).
Judicial Restraint- judges should decide cases on the basis of the original intent of those who wrote the Constitution
Legislation and the Common law are not separate and independent sources of law. They exist in a symbiotic relationship. Symbiotic relationship refers to the two different sources of legal norms that provide the sum of rules establish system as a whole. (Brodie v Singleton Shire Council (2001) 206 CLR 512, 532 [31])
The last model of the judicial decision making is the legal model. The legal model assumes that judges give in to the law when making decisions. If a judge has any personal preferences for an outcome in a case, it is assumed that he or she leaves these preferences aside and defers to the facts of the case or legal standard when making his or her decision.
Supreme Court Justices demonstrate judicial restraint when they refrain from acting as policymakers, deferring to the legislative and executive branches of the federal government, as long as the policymakers stay within the boundaries as established by the United States Constitution. Stare decisis, a legal principle where precedent decisions are followed, plays a major role in judicial restraint. The current Chief Justice, John Roberts Jr., showed judicial restraint in his majority opinion in National Federation of Independent Business v. Sebelius (2012) (Root, 2012). In this opinion, Chief Justice Roberts clearly explains judicial restraint: “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices” (National Federation of Independent Business v. Sebelius,
An important point to keep in mind is that all binding decisions are initiated at the highest court at either the federal or state level. These decisions are precedent only in the jurisdiction where the court presides. Stare decisis refers to the practice of the courts adhering to previously rendered decisions. This is especially true involving United States Supreme Court decisions that have binding authority on both the federal and the state courts. Remember that court decisions in the same jurisdiction only have persuasive authority which is not binding.
of law that has been used to base his decision on. This is called the
Over the years, different jurisdictions had built their specific system of rules of conduct to govern behaviour. These legal systems, influenced by historical and cultural roots, can be distinguished in two families, the Civil law and the Common law legal systems. The distinctions lies in the process in which each decision is make by the judge and on the legal sources that shapes the law. Indeed, by contrast to the Common law system, which is largely based on Precedents, meaning the decisions that have already been made by judges in similar cases, the Civil law system is based on legislator’s decisions and legal codes with which judges have to justify their judgment . Consequently, instead of referencing to concepts and rules
Common law, also known as case law or precedent law is the law created by the reported decision of judges whereas Statute law includes laws created by State or other government bodies. It is also known as Acts of Parliament or enacted law. In case of any clash between the two systems of law, Statue law overrules Common law.
Something more common is stare decisis, which is a type of methodology, and common law that they use along with interpreting the constitution. It is used so judges have some type of consistency and are bound to their past decisions. Stare decisis there are four primary reasons to follow it, it treats cases the the same, makes the law more predictable, strengthens judicial decision making and furthers stability (Oldfather, 2014). This is important in regards to constitutional interpretation because it is basically saying that judge is also bound to past constitutional interpretation. Some of the precedents produced by stare decisis are bad, but that’s because the system is not perfect. The implementation of precedence is also complicated because you have to find cases that are sufficiently alike and most cases are not identical (Oldfather, 2014). Another significant factor in stare decisis, is that the courts usually feel more comfortable in overruling constitutional precedents than amending the constitution, which is much more difficult. Stare decisis is commonly used in adjudication, probably the most prominent articulation of it was in Planned Parenthood v. Casey, where they analyzed if they wanted to overturn Roe v. Wade, in terms of its workability (Oldfather,
Introduction This submission will discuss the problems created by the Doctrine of Judicial Precedent and will attempt to find solutions to them. Whereas, English Law has formed over some 900 years it was not until the middle of the 19th Century that the modern Doctrine was ‘reaffirmed’. London Tramways Co. Ltd V London County Council (1898). Law is open to interpretation, all decisions made since the birth of the English Legal System, have had some form of impact whether it is beneficial or not The term ‘Judicial Precedent’ has at least two meanings, one of which is the process where Judges will follow the decisions of previously decided cases, the other is what is known as an ‘Original Precedent’ that is a case that creates and applies a new rule. Precedents are to be found in Law Reports and are divided up into ‘Binding’ and ‘Persuasive’.
There are different types of precedent; original, binding and persuasive. Original precedent is a point of law where a new case that hasn't been decided on in the past. In these cases the judge would look at cases that appear closest, the judge would use the case to reason by. analogy. The.
United Kingdom is a country with a distinctive set of legal system. It is fairly different from other countries having civil law based legal systems. The legal system in the United Kingdom consists of various sources of law, where other civil law based countries rely only on a written set of law. European influences on the English Legal System came much later in near decades. This essay will aim to examine the development of the English Legal System by reviewing applications of various sources of law in the English Legal System furthermore to discuss the recent European influences on the law of England.