This article aims to probe the normative dilemma that hangs over the common??? law adjudication whether 'like cases' always be decided in the same way or not . To achieve this, firstly, it should be considered whether there is any reasons to treat precedents as binding for the similar cases and secondly, if not, what impact it would bring in the legal system as well as in the society.
By treating ‘like cases’ alike will give foundation to the notion of justice which confirms that justice has served one of its main purpose of establishing distinct ethical virtue. It establishes the rule of law, by which a liberal state is governed , without which lawlessness will create an anarchism. In bureaucratic organizations a large number of decisions need to be taken, as a result, it is necessary to treat ‘like cases’ alike to ensure fair justice where it serves an instrumental purpose. This notion also reflects the idea that people are treated equally which establishes coherence in the overall legal system. By treating ‘like cases’ alike creates
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By not treating ‘like cases alike’ a society might take advantage of a wide range of judgments, of they can make experiment, to protect values of local autonomy, and so on . By not following the notion Judges can practise discretion and the differences resulting from different judges’ views would help to reduce disparities if there is any. Society is dynamic , not static, views of the people changes, society moves on , so does the law. What is considered as right in past may be wrong at present. In the past it was not legally possible to rape one’s wife as she has given her irrevocable consent at the time of marriage. But in 1991 the case law of R. v R (Rape: Marital Exemption) House of Lords, 23 October 1991 creates a new precedent that rape occurs when a husband does intercourse with his wife without her
This essay will examine Susan Estrich’s and Lois Pineau’s discussion on rape. Both contribute insights on our society’s negligence when it comes to the protection and justice for women. Estrich provides a peak into the legal system on how it determines rape. We will see that the law is shaped in a way that continues to oppress women and leave them unprotected. Pineau furthers the conversation on placing responsibility on the victim to prove the crime. She narrows her focus on date rape and raises an objection to the model of consent that shapes our culture’s attitude and our country’s law. Pineau proposes a communicative model of sex. From this proposal, I will conclude my essay with an objection of her model and will ultimately defend her model against such an objection.
Successes and Failures of Sexual Offences Act 2003 The Sexual Offences Act 2003 was heralded as a response to shifting social attitudes, encompassing the broad libertarian approach towards sexual behaviour that has become increasingly dominant since the Act that preceded it whilst attempting to account for the myriad of more widespread sexual deviancies and abusive practices that were otherwise poorly regulated by existing statute. It was designed as a regularisation of the law on sexual offences giving a modern and consistent perspective upon the particular offences; one that would allow the courts to proceed on a fairer and less discriminatory basis, both in its prosecution of offenders and it in treatment of victims. Few statutes can have been subjected to the same level of public scrutiny as this Act, emerging from a climate of public concern over the adequate protection of their children and the proliferation of paedophilia. The abnormally low conviction rate for rape as well as socio-criminal phenomena like 'date-rape' or the effect of immigration on acceptable sexual practices were yet more facets of a many-handed debate about how the law should respond to a changing world. Understanding these issues is central to finding the coherent thread upon which different changes in the Act attempt to hang.
The governance of our present day public and social order co-exist within the present day individual. Attempts to recognize the essentiality of equality in hopes of achieving an imaginable notion of structure and order, has led evidence based practitioners such as Herbert Packer to approach crime and the criminal justice system through due process and crime control. A system where packer believed in which ones rights are not to be infringed defrauded or abused was to be considered to be the ideal for procedural fairness. “I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.” Thomas Jefferson pg 9 cjt To convict an individual because proper consideration was not taken will stir up social unrest rather then it’s initial intent, when he or she who has committed the crime is not punished for their doings can cause for a repetition and even collaboration with other’s for a similar or greater crime.
Morgan has always been heavily criticised by scholars and feminist activists, the mere fact that those accused of rape could gain an acquittal merely by stating their ‘mistaken’ but ‘honest’ belief in consent. The Human Rights Act 1998 (HRA) plays an i...
In the book On Crimes and Punishments; the author; Cesare Beccaria talks about the justice system and the changes that he believes will make society better for all the citizens. In many of Cesare Beccaria’s statements he argues that to lower crimes, all citizens should be treated equally to have society properly function. Despite the changes that Cesare Beccaria made on equality, there is still a lot of hard work to be done to attain equality worldwide even to this day. Beccaria believes that certain aspects of the law have to change so that everyone could be treated the same even if they are of a different class divisions as well as if they have been accused of a given crime.
To comprehend the underlying levels of conviction, there are unfortunate factors from the police, the criminal justice system, the probability of evidence and issue of consent that make convictions immensely difficult to prove. This essay will investigate those measures showing the contrasts of rape and why it is tricky to prove rape occurred without consent, without any corroborative evidence, attitudes of police towards rape victims, the victims withdrawing their report due to personal circumstances and the handling of victims in court, that lead to many offenders having a non-custodial sentence or being acquitted of a rape charge. In the first paragraph, I will explain what constitutes rape and the variations of relationships in which rape is committed. The Sexual Offences Act 2003 (the Act) came into force on the 1st May 2004. The purpose of the Act was to strengthen and modernise the law on sexual offences, whilst improving preventative measures and the protection of individuals from sexual offenders.
Statutory rape laws are valuable in protecting the rights of minors. Possibly, if the laws were revamped to suit the changing attitudes’ of modern society, the law would be more effective. In place of worrying about the misinterpreted claims of statutory rape, prosecutors can focus on the more crucial cases. With more defined modern guidelines, society would be aware of the laws regarding statutory rape and some more pleased. Statutory rape laws are no longer used to prohibit teenagers from having sex. Instead, the regulations are to make certain that the teenagers who are having sexual intercourse are not unknowingly being emotionally forced into it by their significantly older partner’s power. Ideally, statutory rape laws can only improved the lives of teenagers.
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
However, there once existed or exists certain unjust laws around the world. A number of ancient laws were made specially to protect the interests of the upper class, such as the King, the Pope and the aristocrats. Besides, it is also hard to rule out the possibility of modern laws being unjust for several reasons. Firstly, injustice is sometimes unavoidable, since it is difficult for legislator to take every situation and every possible result into account. Secondly, justice is a concept with relativity that different individual may view the sam...
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’.
In this essay, I will be discussing how the formal theory of the rule of law is an erroneous means of establishing laws within a state. A central theme to addressing this essay is the distinction between formal and substantive theories of the rule of law. In order to reach the conclusion of the formal theory being proven to be insufficient, one must first appreciate the significant advantages which the substantive theory obtains. However, before doing so, I will briefly mention the importance of the rule of law in society and the requirements it needs to fulfil. Most people would dispute that the significance of law in society is to obtain justice, however justice is simply a term which is determined subjectively, it relates to an individuals moral viewpoint.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
Part of the grounds for arguing in favor of the common law system over the codified system is its characteristically equitable qualities. Since antecedents are pursued in all cases, everyone gets the same treatment. This same legal procedure is administered to everyone in spite of their position or creed. Therefore, this system of going by antecedents which had hitherto been set usually leads to equity and fairness. This system of law also has the advantage over the codified system by offering protection to persons via the law of tort.
In cases where new issues of the law are raised, the judges would have no precedent to follow and so could exercise their discretion accordingly when deciding cases, such as in the cases of Airedale NHS v. Bland [1993], Marks & Spencer v. One In a Million [1998] and the case of Re A [2003]. A court is not bound by the principles and decisions of courts below it, otherwise appeals would be impossible. Thus, a decision of a lower court may be reversed or overruled. However, judges tend to avoid departing from previous precedents unless those precedents were
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...