Certain Decisions Of Certain Courts example essay topic

du d jtyneb and cons. Positive attributes - equality before the law; guidance from senior courts; certainty; law develops in logical way; reduction in arbitrariness. Negative attributes - law becomes rigid and inflexible; 'bad' law to be followed; haphazard case-reports; courts slow to move with changing social standards Outdated precedents. Example of rape within marriage.

In Scots law, historical viewpoint "a man cannot rape his own wife as she has surrendered her person to her husband" (Hume, 1797). English law, "but the husband cannot be guilty of a rape committed by himself upon his wife, for by their mutual consent and contract the wife hath given up herself... unto her husband which she cannot retract" (Hale, 1750) A step behind society? Historical view remained part of Scots Law until recently. Many English cases supported this view which set a precedent - R vs. Clarke [1949]; R vs. Miller [1954] and R vs. Sharples [1990].

IN Sc, courts took view (1983) that marital rape possible when parties were separated. In 1989, HC in Scotland removed husband's immunity. In 1992 H of L removed immunity in England Reasoning by Precedent web - 17 k Put very simply, a precedent is a decision by a court in a previous case. The decision by the court is one which sets out a principle of law which is capable of subsequent application and which must be followed in certain circumstances. The notion of precedent is inextricably linked with that of the common law, because a common law system is one in which the law is made and developed through a system of binding precedent. The decisions of certain courts set forth rules of law which are authoritative in their own right, subject only to the higher authority of statute where a statute of relevance exists.

For example, the law of murder in Scotland is mostly based on case law. The doctrine whereby certain decisions of certain courts will bind future courts is known as the doctrine of stare dec isis. It is worth noting that not every word of a court decision will be binding for the future; it is only the ratio decide ndi, (i.e. the principle of law upon which the judge reached his or her decision), which is binding. Precedent The acceptance of binding precedent as a formal source of law is an essential characteristic of the common law, and one which is alien to most civilian legal systems. Thus, underlying principles of the legal system are found, not in legislation, but in judicial decisions. Precedent can change the law, but may be overruled by a superior (or sometimes equal) court, or changed by legislation Scotland, along with England, Wales and Northern Ireland, makes up the United Kingdom of Great Britain and Northern Ireland.

While being a constituent part of the UK, and therefore not a state in her own right, Scotland is very much her own nation.