Arguments For And Against Use Of Precedent Law Essay

Arguments For And Against Use Of Precedent Law Essay One very important element of the law in the United Kingdom is the precedent. The precedent is a  legal case  establishing a principle or rule that a  court  or other judicial body may utilize when deciding subsequent cases with similar issues or  facts.  [1]  These decisions can be used as a map to help the judges navigate through the English legal system. Despite the fact that the precedent can be very useful in the English law in some special cases it can only make things more difficult and it can lead to false results. Generally it is argued that the precedent introduces unnecessary rigidity into the law, thereby preventing legal doctrine from developing as society develops. The first thing that we should consider is why this is happening. To examine this issue we should first start from the meaning of the word >. The word precedent refers to an action that has already happened and that could be argued to be the greatest disadvantage of the precedent. Judges that use precedent to help them make their decision are heavily basing the result of the trial on a decision that was made a lot of years ago and thats the most important problem. Especially when we talk about cases that happened hundred years ago its unorthodox to use them as guidance in modern cases. The reason is that through the years the way that people act and think is changed and something that was radical in 1900 can turn into something normal in 2011. Also we can see that modern society develops and with it the law develops too. So mod ern law cant always be compatible with old decisions. Finally one more issue that rises is that we cant be certain about the thinking of the judge that took the final decision in an older trial or about the reasons and the circumstances under which he took his decision. In addition the application of precedent may sometimes cause injustice. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in an individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule. The use of precedent also has as a result to limit the development of the law. The doctrine of stare decisis is a limiting factor in the development of the law made by judges. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding. Moreover it could be said is that there are too many precedents resulting to the loss of time and money and sometimes leading to confusion due to the large number of cases that should be considered. The citation of authority in court should be kept within reasonable bounds because it can be costly in terms of time and money. Also Lord Diplock has warned of the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase. In order to avoid all those consequences the House of Lords has decided that it will not allow transcripts of unreported judgments of the Court of Appeal, civil division, to be cited before the House except with its leave. Finally one more disadvantage of the precedent is that it makes the law inflexible. The case-law method is sometimes said to be flexible. However a judge is not so free where there is a binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. Judges are forced to apply binding precedents that blocks them from making a new decision about a case. This action introduces an unnecessary rigidity on case-law that doesnt allow for the law to develop. One great example that the precedent cant be used in certain cases can be found at the case of R v R [1992] 1 AC 599. In this case a husband appealed against his conviction of the attempted rape of his wife. The defense of the husband supported that a husband cannot be guilty of rape upon his lawful wife because of the marriage contract. Upon marriage the wife consents to her husbands exercise of his marital rights. They based their defense on case law using : Hale, History of the Pleas of the Crown, 1st ed. (1736), vol. 1, ch. 58, p. 629; Archbold, Pleading and Evidence in Criminal Cases, 1st ed. (1822), p. 259; Rex v. Audley (Lord) (1631) 3 St.Tr. 401;  Reg. v. Cogan [1976] Q.B. 217  and  Reg. v. Kowalski (1987) 86 Cr.App.R. 339 The wifes consent could only be withdrawn in certain circumstances, such as her death, or if the marriage was avoided by a private Act of Parliament, a separation order (see  Rex v. Clarke [1949] 2 All E.R. 448), a decree nisi (see  Reg. v. OBrien (Edward) [1974] 3 All E.R. 663), an undertaking (see  Reg. v. Steele (1976) 65 Cr.App.R. 22), a deed of separation (see  Reg. v. Roberts [1986] Crim.L.R. 188), or a family protection order (see Reg. v. S. (unreported), 15 January 1991, which did not follow  Reg. v. Sharples [1990] Crim.L.R. 198). As none of those factors existed, the appellants immunity was not lost by what happened between his wife and himself. Accordingly he should not be tried for or convicted of rape. However appeal was dismissed. Overturning the principle set out in Hales History of the Pleas of the Crown (1736), that a wife irrevocably consented to sexual intercourse with her husband on marriage, their Lordships confirmed that the assumption was no longer applicable in modern times when marriage was viewed as a partnership of equals. The  Sexual Offences (Amendment) Act 1976 s.1(1)  defined rape as unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. Th eir Lordships rejected submissions that unlawful meant outside the bond of marriage. It was unrealistic to describe extramarital sexual intercourse as unlawful, particularly as unlawful normally meant contrary to some law or enactment or without lawful justification or excuse. The word unlawful was superfluous in the context of s.1(1). The husband was guilty of attempting to have sexual intercourse with his wife against her will contrary to s.1(1) of the 1976 Act. On the other hand despite the fact that precedent has some disadvantages it also has a lot of advantages because in its favor, the use of precedent is said to bring certainty to the law by enabling people to know how issues will be resolved in the future. At first with the use of precedent people are aware of the law and its consequences and they can predict with exactitude their penalties if they make any unlawful actions and they can avoid them by knowing that its illegal and that they will receive a penalty. Also the precedent is a convenient timesaving device. If a problem has already been answered and solved it is natural that a similar case will reach the same conclusion. The judges can use the precedent to deal with minor offences that came to the jury and that will save a lot of time so that they can deal with more cases in a smaller time period. One of the most important advantages resulting from the use of precedent is that it gives greater certainty in the law and helps the judges to avoid mistakes. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. Generally the precedent is a very important tool for the judges. When they face a difficult case they can search for similar cases in the past and see what decisions were made. That can help them make a decision and be sure that their decision was lawful and fair. In addition the use of precedent prevents injustice. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a following case. Everyone should be equal against the law. In order to realize this we should all be judged as equals and receive the same penalties for the same crimes. The precedent helps with that because the decision is taken based on a previous decision for a similar or same crime. That helps the judges and works like a guidance to help them make right decisions. Also it ensures impartiality of judge. The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. Judges that are not loyal to their duty are easy to be corrupted and make decisions that are in favor of one part. The use of precedent helps to limit the pheno menon of corruption of the judges and it ensures a fair legal system. Judges cant make decision and penalties out of their minds. They should follow the precedent if it is binding or if they have worries about taking a decision. Every radical attempt to support one side at the expense of another would be obvious and would be stopped. Finally one more great advantage is that it offers opportunities to develop the law. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. A wealth of cases illustrative of a vast number of the principles of English law has built up over the centuries. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. The precedent give the opportunity to review old decisions and from reform or create new laws that are representing better the modern time. The use of precedent can become very useful for the judges and is obvious through the case of C v DPP [1995] 2 All ER 43. In that case a boy which was at the age of 12 at the time of the offence appealed against the Queens Bench Division ruling (Times, March 30, 1994; [1994] 3 W.L.R. 888) that the presumption that children aged 10-14 were doli incapax (incapable of committing a crime) no longer applied because the court believed that the common law presumption was superseded and against the public interest. In that case the appeal was allowed because the court believed that except the the actus reus and the mens rea the prosecution must adduce additional evidence to prove the minor knew that what he was doing was not merely naughty but seriously wrong. Especially the court added that proof that the minor had done the acts charged could not per se establish that he had guilty knowledge, however bad the acts. The additional evidence must be obtained from a witness who knew the minor we ll, by interviewing the minor or by psychiatric examination. In para 8.4 of Crime, Justice and Protecting the Public (1990, Cm 965) the government approved the presumption on the grounds that allowance must be made for childrens developing faculties. To change the law by judicial ruling would be inadvisable because Parliament had rejected the opportunity to clarify a known difficulty. Its obvious especially in this trial that the precedent played a very important role in order to reach justice. It was clearly visible that the decision of the court was merely wrong. During the trial, the presumption that children aged 10-14 were doli incapax that means that they were incapable of committing a crime was not taken into account and this mistake led them to a false and unfair decision. The appellant mentioned this mistake and appealed against their decision because it was obvious that it was wrong. This case is a very good example of what happens if during a trial the judge decides or forgets to apply a decision because he judged differently than previous people have judged. In conclusion, the precedent as was firstly argued is a very important and useful tool for the English law. It may have some disadvantages but however problematic we may find the use of precedent in many occasions it can be really helpful in order for justice to come to light. It sometimes prevents legal doctrine from developing as society develops and introduces an unnecessary rigidity but its obvious that its use brings certainty to the law by enabling people to know how issues will be resolved in the future. We cant just decide that the use of precedent should be stopped or should be continued because no matter what its disadvantages are it also has a lot of advantages that have been proved really helpful in everyday life.

Allegory Essay -- essays research papers

Allegory Plato’s The Allegory of the Cave is a short story specifically discussing the parallels between the shadows the prisoners sees on the wall of the cave, and the illusion, which passes off as truth in today\\'s society. The Allegory of the Cave is about Socrates teaching his student, Glaucon, certain principles of life by telling him one of his allegories. The Allegory of the Cave can be interpreted in many ways; one way is to make a comparison between the story and the way of thinking by individuals in a closed society. Socrates states that the cave is a world many of us would like to see, but is not really how the world is. It is almost like the movie \\"The Matrix\\", where Neo, the main character is to discover that the world he lives in, is not the real world, but a world generated by machines and computers. Only in Socrates\\' allegory, the world is not created by computers, but by individual minds. Socrates wants Glaucon to be a wiser, better-educated man, who will later become a ruler of the State. He wants him to know not only the right, but also experience the wrong, because only a man who knows the bad, can truly understand and appreciate the good. Socrates does this by telling him a story, to let him better understand the principles of life. Men are chained down in a cave and have a wall blocking their view to the outer world. The prisoners can only see the shadows of the objects on the other side of the wall. If the prisoners see the shadows of the men ...

The Effectiveness of the Standardized Tests

Education has always been an issue in everyday life, and continues today to be very important. The effectiveness of statewide testing has been under much discussion as President Bush has made education a top priority in his administration. In my opinion however, the method used in Texas, TAAS testing, is not effective and should not be implemented nationwide because this method pressures teachers to teach specifically toward the test, specifically encouraging memorization and not learning, cramming knowledge for the TAAS, and rearranging school schedules to have time allotted specifically for TAAS reviews. First of all, school districts in Texas are evaluated on how well their school†s TAAS results are, thus urging teachers to repeatedly go over the same topics so the students are â€Å"assured† of passing TAAS. This results in students not learning the subject, but instead, memorizing. This method is great for short term, but often they review questions that might be asked on the test, then six months later the child forgets. For example, math teachers often teach how to work a specific â€Å"TAAS related† problem, rather than making sure students fully understand the total math concept. This can be very detrimental to the student†s comprehension and to other subjects they may take later in their school career. Furthermore, it seems that teachers have to cram as much knowledge as possible to cover certain test areas. Rather than exploring a wide variety of subjects and gaining as much knowledge as possible, the teachers must cram knowledge of certain subjects, knowing it will be part of the TAAS test. They perhaps have students at different levels and learning abilities, but often the brighter students are held back from learning more, until the slower students catch on and catch up to the entire class. This inhibits the gifted or talented students progress and they tend to be negatively impacted. Finally, the time factor must also be considered. Because so much emphasis is put on the TAAS test, it impacts class schedules. For example, teachers at my school have three days of the week devoted to TAAS preparation. Without having statewide testing, these days could be eliminated and other important topics could be learned. Rather than teaching students new information, often class time is taken up reviewing TAAS test questions. Although this class time may be beneficial to students struggling to pass the TAAS, those who do not need the help are wasting valuable learning time. As the saying goes, â€Å"The mind is a terrible thing to waste,† yet this seems to be what we are doing. We are teaching our students how to test, reviewing subjects redundantly, and teaching in such a way that bores even the average student. When time is spent on TAAS skills that a student has already mastered, it is literally a waste of time and talent. I hope that your state will consider doing the right thing, by not mandating statewide testing. Surely there are other ways we can evaluate our school systems and not put students in jeopardy or being held back from the joys of learning new information and our teachers from exploring new and exciting methods of encouraging students to learn.

dyslexia Essay example - 1412 Words

nbsp;nbsp;nbsp;nbsp;nbsp;Cau yon reab mwat I aw mriting? If yon caunot reab it waybe is is decanse this is hom a persou with byslexia wight reab somethiug. A person with dyslexia has a very difficult lifestyle to live. To understand dyslexia you must be aware of the causes, effects strategies, and teaching methods for coping with the disease. â€Å"Dyslexia means having difficulty with words in reading, spelling and writing – in spite of having normal intelligence and ability† (Make the Connection). nbsp;nbsp;nbsp;nbsp;nbsp;Scientists have been interested in dyslexia for a long time. For instance a scientist by the name of A. Kussmaul started researching this disorder in 1881. He came up with a theory of a certain inability as â€Å"word†¦show more content†¦The British Dyslexia Association welcomed these findings with care, stressing that the interesting new research would further endorse the fact that the dyslexic brain is different, and emphasizing a unique focus on language skills at a young age to help dyslexic children when they begin reading and writing (Make the Connection). nbsp;nbsp;nbsp;nbsp;nbsp;Children with dyslexia give many signs to help identify them. Some of the clues include, not knowing whether to use the left or right hand after being reminded repeatedly, leaving out capital letters or losing using them in the wrong places reading a word correctly but does not comprehend, forming letters numbers badly, and forgetting to dot I’s and cross t’s (Make the Connection). 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