The Doctrine Of Judicial Precedent Law Essay

The Doctrine Of Judicial Precedent Law Essay Judicial precedent also called case law. It is the system adopted by judges where the judges follow previous decisions.1It simply means that the previous decision made by judges in similar cases are binding upon future cases depending on the hierarchy of the court. Therefore, under judicial precedent, a lower court is bound to follow the decision made by a higher court when there is a case which has similar material facts to a case that has decided by a higher court. Whether or not the decision is correct, a court is bound to follow the ratio of any decision by a court above it in the hierarchy. For example, according to the hierarchy of the court system in Malaysia, Court of Appeal, High Court and Sessions Court is under Federal Court. Therefore, Federal Court decision automatically binds the Court of Appeal, High Court and Sessions Court. The diagram of hierarchy refers to appendix 1. In English Law, the system of binding precedent is called stare decisis. The principle of stare decisis involves ratio decidendi and obiter dictum. Ratio decidendi is the legal principle of the case which is binding on the lower courts. It is also the reason for deciding.2 Nevertheless, obiter dictum is not binding on the lower courts. Obiter dictum is comments made by the judges.3It means that incidental remarks by a judge which is persuasive only.4 Therefore, the judges have the choice whether to follow or not to follow. If the judges is setting a new precedent and merely making new law because there is a case before him is without precedent then it is called original precedent. However, is the judges is just merely applies an existing rule of law then it is called declaratory precedent. In the case of Donoghue v Stevenson 5, it is about the plaintiff, Mrs Donoghue went to a cafà © with a friend, who had bought her a drink of ginger beer. She had poured some of the drink into a glass and consumed it. After drinking most of it, she found a decomposed snail inside the bottle while she drinking the ginger beer. After that, Mrs Donoghue became unwell and ill. So, she decided to sue the manufacturer of the ginger beer who is the defendant. On that time, the usual remedy for damage caused by a defective product would be an action in contract. Nevertheless, Mrs Donoghue did not have any contract with the manufacturer of ginger beer even the cafà © owner. The one who have contract with the cafà © owner is Mrs Donoghues friend. This is because the ginger beer is bought by her friend but not Mrs Donoghue herself. Although Mrs Donoghues friend have contract with the cafà © owner, her friend also cannot sued for remedy damage because her friend did not get hurt by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established cases on product liability. 6 The House of Lords had state that the manufacturer of ginger beer owed a duty of care to the Mrs Donoghue. The manufacturer of ginger beer must have duty of care to the end customer of its products. In this case, the manufacture of ginger beer had breached the duty of care. Therefore, Mrs Donoghue is entitled for the remedy of damages. This case is binding on the lower courts because this was a unique case it was decided to first establish. Once this ratio or legal precedent was established other similar claims are followed. After that, there is another case which is Grant v Australian Knitting Mills Ltd .7 This case is closely related to the Donoghue v Stevenson case. In Grant v Australian Knitting Mills Ltd case, Dr Grant, the plaintiff had bought an undergarment from a retailer. The undergarment is manufactured by the defendant, Australian Knitting Mills Ltd. Dr Grant was contracted dermatitis. The undergarment was in a defective condition owing to the presence of excess of sulphite. It was found that the manufacturer had been negligently left in it in the process of manufacture. In this case, the buyer sued the retailer in contract and the manufacturer in tort. The Privy Council held that the defendants were liable to the plaintiff although there is no privity between Dr Grant and the manufacturer. The decision of this case is bound to the Donoghue v Stevenson case since there are similar cases. Here, In 2010, Mr. Justice Peter, a higher court judge sitting alone in deciding a case which has similar material facts to one decided by the Court of Appeal in 2009. Based on the explanation of doctrine of judicial precedent and the example of cases above, therefore, he is bound to the decision made by the Court of Appeal. ______________________________________________________________________________ TAR College Note TAR College Note TAR College Note Text book, Principles of Business and Corporate Law, Malaysia, pg 20 [1932] AC 562 Text book, Principles of Business and Corporate Law, Malaysia, pg 339 [1936] AC 85 Question 1(b) There are some strengths and weaknesses of case law as a source of law. The first advantage is uniformity. Everyone is treated equally1 and will get same punishment for the same case or offence. For example, in the case of Donoghue v Stevenson (1932) AC 562, the decision is Mrs Donoghue is entitled for the remedy of damages in the case. Therefore after that, this case is bind. So when there is case which has similar facts with this case Grant v Australian Knitting Mills Ltd (1936) AC 85, the plaintiff is entitled for the claims of damages by following the case of Donoghue v Stevenson. There is uniformity as everyone is treated equally and it is fair for them. The second advantage will be certainty. There is certainty because if the problem has been solved before, the court is bound to adopt or follow the solution.2 Thus, the lawyer can do the research so that they can advise or tell more accurately to their client the punishment of the case. When Grant v Australian Knitting Mills Ltd (1936) AC 85 happened, the lawyer can roughly know what is the punishment or solution to settle up this case as previously there is a similar case Donoghue v Stevenson (1932) AC 562 happened and the judges have to bind and follow the decision. Predictability is the third advantage. This is because when there are cases that have similar materials facts with the previous cases, the lawyers can roughly know what is the outcome of the new case. By forecasting the outcome of the case, the lawyers can tell their clients the percentage of the winning rate. [Donoghue v Stevenson (1932) and Grant v Australian Knitting Mills Ltd (1936)] So, the lawyer can refer to Donoghue v Stevenson (1932) and tell their clients what is the percentage of winning the case and what are the solutions for that case or is it worth to continue up this case. Besides, the other advantage of case law is less legal cost incurred. This is because the case can be resolved and settled quickly3. When there is a decisions made by judges previously on similar material facts, they can save money. This is because there already have the previous examples, so they can settle the case quickly as they can follow the decisions of the previous one. Then this can shorten the duration of the case, and this can help to save up the legal costs that need to be paid. Other than that, personality of the judges will not influence the outcome of a dispute in court as judges will be bound to follow the previous decisions.4 When there is judicial precedent, the judges cannot make the decision by its own thinking or idea which might influence the offender future. This is because every person got their own personalities, included the judges themselves. So one of the advantages is the judges have to follow the previous decisions. So that everyone will get the same punishment and this is fair for everyone. On the other hand, case law has its disadvantages too which we known it as weaknesses. One of the weaknesses is bulky and complex. Sometimes there are too many cases and too many laws that no one can learn all of it.5 When there is a case happened which have the similar material facts with previous one, the lawyer has to refer to the previous case. When lawyer need to read all the cases and refer to them, it is quite complicated for lawyers as they do not know what is the best reference. For example, in the case of Phillips v Brooks [1919] 2 KB 243 Horridge J and Ingram v Little [1960] 3 All ER 332, CA. The results of these 2 cases are different, but there are similarity facts. Then, in the next case [Lewis v Averay [1971] 3 All ER 907, CA] the judges decided to follow the decision of Phillips v Brooks and doubting Ingram v Little. If the lawyer feels that the chance of winning is higher after see the result of case Ingram v Little, at the end it might disappointed them. So, it is so complicated and bulky for the lawyers as they cannot decide which one is the best refe rence for them. In addition of that, sometimes it is rigidity or not flexible which means that it may sometimes cause hardship.6 Once it is created it is binding until it is being overruled.7 When there are bad decisions made on previous cases, the new case which has the similar material facts with it has to follow the bad decision too. It is so unfair for them. Lastly, we know that only the ratio of the case is binding in a case.8 So the weakness of case law is sometimes the ratio decidendi of a case is very difficult to find. So the problem occurs when it is very difficult to tell which part is the ratio decidendi and which is the obiter dictum of the case. For example in the case of Donoghue v Stevenson (1932) AC 562, the House of Lords said the manufacturers had a duty of care to the consumer of their product. Then, this decision that the House of Lords made is certainly encouraging subsequent judges to break out of the shackles of the past, it was thought at the time to be obiter and was regarded as too wide a statement of the law. However, it was approved by Lord Reid in Home Office v Dorset Yacht [1970] 2 All ER 294 by saying that it is ought to apply unless there is some justification or valid explanation for its exclusion. Thus, the principle is now treated as ratio at least in relation to physical injury and damage to property whic h subject to certain limitations. So, sometimes it is difficult for the judges to decide which part is ratio and need to follow or not. ______________________________________________________________________________ 1. TAR College Note 2. TAR College Note 3. TAR College Note 4. TAR College Note 5. TAR College Note 6. TAR College Note 7. TAR College Note 8. TAR College Note

Benazir Bhutto Shaheed Bibliography

Benazir Bhutto , 1953-2007, prime minister of Pakistan (1988-90; 1993-96), daughter of Zulfikar Ali Bhutto . Educated at Radcliffe and Oxford, she returned to Pakistan shortly before her father was overthrown by General Zia ul-Haq in 1977. Under detention and then in exile, she returned in 1986 to lead the Pakistan People's party (PPP) and to fight military rule. In Nov. , 1988, three months after President Zia ul-Haq died in a plane crash, Bhutto's alliance gained a narrow majority in parliamentary elections, and she became prime minister, the first female leader of a Muslim nation.Her government, marked by continuous intrigue and able to accomplish little, was dismissed by President Gulam Ishaq Khan in Aug. , 1990. He accused her, her husband, Asif Ali Zadari, and her party of corruption. Zadari was held (1990-93) on various charges, although eventually acquitted, and the PPP lost the late 1990 elections. In 1993, Bhutto again became prime minister. By then a more seasoned politici an, she made alliances, including with the military, that enabled her to deal with some of Pakistan's deep-seated problems.In Nov. , 1996, though, her government was again dismissed. Zadari was accused of murdering Bhutto's brother, a political rival, as well as of accepting kickbacks, and was imprisoned; sweeping corruption charges were brought against Bhutto. In 1999, Bhutto and Zadari were both convicted of corruption; Bhutto appealed the verdict while living in exile in England and the United Arab Emirates.In 2001 the Pakistani supreme court set aside the corruption charges facing Bhutto and Zadari and ordered their retrial, but a Swiss court convicted the couple of money laundering in 2003. Bhutto was barred from running in the 2002 Pakistani parliamentary elections. Zadari was released from prison in 2004, a move that appeared designed to improve the Musharraf government's relations with the PPP; he subsequently left Pakistan. In Oct. 2007, after extended negotiations with the government, Bhutto returned to Pakistan, intending to run for prime minister in the scheduled Jan. , 2008 elections. On her return, she survived an attempt on her life that killed more than 130 persons, but was assassinated two months later in an attack, widely ascribed to Islamic militants, that followed a political rally in Rawalpindi. Her 19-year-old son, Bilawal Bhutto Zardari, assisted by her husband, succeeded her as PPP leader.

Heroes & Odysseus Essay

This paper will seek out to explore the way in which Odysseus and Oedipus were created as heroes and how they either missed their mark or did indeed become legendary. Throughout Homer’s chronicle, The Odyssey, are found the feats of cunning, strength, moral fiber and bravery attributed to Odysseus. The tale recounts the days after the fall of Troy, and the meandering journey which took Odysseus back to his homeland – though never truly home. The Odyssey begins with Odysseus stranded on a small forest island – trapped by the goddess Calypso while Oedipus begins with the oracle of Delphi stating that Oedipus will live to kill his father and marry his mother and thereby wrecking his home. It is explained through the text that the gods, save for Neptune have begun to pity Odysseus because of the great suffering he had endured. This suffering is explained to be of â€Å"every kind of blandishment to make him forget his home, so that he is tired of life. † (Book I) Calypso is intent on forcing Odysseus to marry her, but he does not falter to her whim, but still longs for his wife and home. Oedipus on the other hand does fulfill the oracle’s prophesy and no god saves him or pities him his fate. This is brought to the attention of Jove, or Zeus, son of Saturn and most powerful of the gods. The goddess Minerva calls to Jove to end the suffering of Odysseus, to which Jove replies: My child, what are you talking about? How can I forget Ulysses than whom there is no more capable man on earth, nor more liberal in his offerings to the immortal gods that live in heaven? (Book I) It is through the voice of Jove, the king of all the gods and goddesses that the reader is shown the esteem that Odysseus has gained. Jove calls Odysseus the â€Å"[most] capable man on earth†, which intends to illustrate the favor that he has earned from the gods. When it is decided by Minerva and Jove that Odysseus will be allowed to return home, Minerva travels to Ithaca – the home of Odysseus to tell his son to prepare for his father’s return. However the situation on Ithaca has become troubled as many suitors are vying for the hand of the, presumed, widow of the king. During this debate, Telemachus, the son of Odysseus convened the council and spoke of the trouble that had fallen on his house. My grieveance is purely personal, and turns on two great misfortunes which have fallen upon my house. The first of these is the loss of my excellent father, who was chief among all you here present, and was like a father to every one of you [†¦]. (Book II) Here, it is shown that not only was Odysseus capable of pleasing the gods, but also he was a great and fair leader. The council of Ithaca, though his subordinates, where treated as his own children – rather than simply citizens subject to his rule. It is also during this discourse that Telemachus calls for an end of the forced courting of his mother by saying â€Å"we have now no Ulysses to ward off harm from our doors, and I cannot hold my own against them. I shall never all my days be as good a man as he was† (Book II) – which then illustrated the strength and power that the presence of Odysseus commanded. Characters in plays are the designated interlopers between the subconscious of the audience or readers. These characters translate into reality and become a relatable experience because the hero has one tragic flaw that conquers them, ruins them, and brings them humility. This fallible nature is show the imperfections of humanity designed through sin; sin is one of the many idiosyncrasies which mark us as human, that create specific characteristics and through confession or the confession of characters in a play, this nature becomes like a myth in the end there is death or forgiveness. Aristotle’s definition for a tragic hero is one who is not in control of his own fate, but instead is ruled by the gods in one fashion or another. The tragic hero for Aristotle is tragic because of their lack of control or will in the face of their predetermined future and downfall. A great tragic flaw (hamartia) is the hero’s devil may care attitude at the beginning of each story, and then their despondency and stagnation of hope that meets them at the end of the play (Aristotle Ibid. , Book XIII, 1085b 35 & 1086a 12—14, P. 909]. In drama, ego is the flaw to which the hero succumbs. This is Oedipus’ great error. His ego is a compromise to his fortune. Even in the gods’ world he stands out as unique or special. Heroes begin their stories with aplomb of luck, or ego, or a rosy view of the world, and each play seems to end with destruction. Oedipus is blind at the beginning of the play and then becomes physically blind at the end of the play thus making the ethereal concrete. With Greek drama; the tragedy of the unmistakable truth found in the character’s own self-realization is the typically denouement. The playwright’s tragic heroes have survived in life under false pretences, thus they are doomed to suffer from their one flaw of ego. It is interesting that while ego is Oedipus’ downfall it is Odysseus’ strength for it is ego which allows him to continue trying to find his home even after decades of looking. By the forth book of The Odyssey, Odysseus is still making his way home, and the tales of his exploits are recalled. As Helen, wife of Menelaus, and the cause of the Trojan war spoke of Odysseus, she recalled his cunning and forethought in his dealings with Troy. â€Å"I cannot indeed name every single one of the exploits of Odysseus†, Helen told the men, â€Å"but I can say what he did when he was before Troy. † (Book IV) Helen recounted Odysseus donning a disguise and entering the city dressed as a beggar. Though she saw through the disguise and recognized him, she was unable to question him because â€Å"he was too cunning for me†. (Book IV) It was the plan of Odysseus to gather information on the city, and kill some of the soldiers before returning his army – which, as Helen recalled, he did. This praise of Odysseus was echoed by her husband, Menelaus. After Helen had spoken, Menelaus said â€Å"I have traveled much, and have had much to do with heroes, but I have never seen such another man as Odysseus. What endurance too, and what courage he displayed†. (Book IV) The strength and bravery of Odysseus, as recounted by Menelaus, illustrated the degree to which Odysseus had gained favor among his fellow Grecian kings. In Oedipus there is another case of fate controlling the destiny of man. Due to fate’s interference in the lives of heroes, it must be pondered whether or not they are heroes because they are devoid of choice and by definition a hero chooses their actions, but with fate, their actions are predestined. For Oedipus, his only link to heroism is that in his redemptive attitude . His heroic stance in Greek culture is seen as a protagonist who felt guilt for what he had done and this translates to the audience that if a hero can succumb to evil then they themselves, as less than heroic, are more likely to fall in favor, in the eyes of the gods. Human nature is a nature of reason, not strictly adherent to passion or feelings, and in drama playwrights strive to be exact in their representation of reality. Morality then, becomes the crux of Oedipus Rex. Morality is reason. This is not to say that Plato and other classic Greek writers were ascetic; rather they placed passion, and feelings in their plays but the ethics of humanity are tied into the good of a person because reasonably, being virtuous, or good leads a character to happiness or release at the end of a modern play. The word for this given by Plato is eudemonism, which means blissful. Throughout The Odyssey, many individuals recount the feats of Odysseus. His exploits had gained him favor from man and God alike – something afforded to very few others in history or mythology. It was the total of every aspect of Odysseus’ persona that he gained this favor. Throughout his life he had shown courage, fairness, loyalty, strength and cunning – and it is because of these traits that Odysseus is remembered. As a Greek hero, Oedipus is controlled by fate: His remittance of gouging his eyes shows that he is a strong hero because of his debt payment of sight. For Oedipus the flaw could be contained within the word ego while Odysseus’ heroism is marked by it. Ego in answering the sphinx riddle and unbeknownst to him killing his birth father, marrying his mother, having children; ego accounts for all of Oedipus’s actions, and it is fate which had designed ego and thus was the ultimate ruler of Oedipus and luck for Odysseus but both are considered heroes. Works Cited Aristotle. Sophocles. (1977). The Oedipus Cycle. Harcourt Inc. Florida. Homer. â€Å"The Odyssey†. trans. Samuel Butler. University of Oregon. Date of Access: April 30 2009. URL: http://darkwing. uoregon. edu/~joelja/odyssey. html

The Hiv / Aids Epidemic - 1650 Words

The HIV/AIDS epidemic poses a major concern for global health. There are approximately 36.7 million people living with HIV/AIDS worldwide (WHO, 2017). Due to the increased phenomenon of global migration and movement we see a proportion of individuals who are HIV positive migrating. In Canada alone, over 300,000 new immigrants were welcomed into the country in 2016 (CIC; Globe And Mail, 2016). As a result we can infer that certain proportion out of all immigration applicants into Canada were HIV positive, therefore this paper seeks to question if it is easier or more difficult to be accepted as a immigrant into Canada if you are HIV positive? In addition, under what circumstances are individuals who are HIV positive admissible into Canada,†¦show more content†¦An analysis between the sources was conducted, in search of differing viewpoints, personal experiences and hard data and statistics. The key sources were chosen as they highlight policy updates and laws on immigration r egarding HIV/AIDS from 2000-2017. The paper relies on resources with an immigrant-centered viewpoint, state centered, and health centered viewpoints during this said timeframe. The data and resources that have been complied shed light on the complexities associated with HIV/AIDS and Canadian immigration policy. Discussion From 2002, Canada has required HIV testing for all persons aged 15 and above who are seeking Canadian permanent residency (immigrants and refuges) and temporary residency from designated countries (migrant workers, students and long-term visitors) (Bisaillon, 2010). The screening process for HIV takes place during immigration medical examinations which are conducted in sanctioned Canadian and foreign medical officers (Bisaillon, 2010). This process is a mandatory component of the Canadian immigration procedure (Bisaillon, 2010). In Canada, HIV is not considered to be a threat to public health and safety, thus being HIV positive does not make one inadmissible to Canada (Bisaillon, 2010). However, individuals may be deemed inadmissible if they are a threat to public safety and health (eg. a HIV positive sexual offender) or ifShow MoreRelatedThe Epidemic Of Hiv And Aids1535 Words   |  7 Pagespopulation include providing access to health care, HIV testing and syringe services progra ms. The Office of HIV Planning in Philadelphia focuses on the needs of the population, conducts community outreaches and educational sessions. As previously stated, 32 state Medicaid programs reimburse for routine HIV screening of adults aged 15-65 years, regardless of risk. This policy allows for individuals to more likely participate in this screening process. 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With all the campaigning that has been done the numbers of cases continue to rise. Countries have separated the disease into three patterns to make it easier to distinguish the effects that AIDs has on different regions ofRead MoreShould The Hiv / Aids Epidemic?918 Words   |  4 PagesShould the HIV/AIDs epidemic in Africa be described as a feminist issue? With higher transmission rates concentrated among African women, and the vast majority of new mother-child transmissions occurring within African countries, HIV seemingly fits into the scope of feminist concerns. As described in Oppong and Kalipeni’s contribution to Kalipeni, et.al.’s HIV AIDS in African: Beyond Epidemiology, the consistent classifying of th e HIV/AIDS epidemic as being the direct result of distinct AfricanRead MoreThe Epidemic Of Hiv / Aids Essay1607 Words   |  7 Pagessyndrome (AIDS). Another two years would pass before scientists were able to isolate the retrovirus that causes AIDS, which in 1984 was termed human immunodeficiency viruses (HIV). Although a successful discovery, in the absence of a proven treatment, HIV and AIDS had free rein in which to leave in its wake a global path of fear, illness, and death. To understand the totality of HIV/AIDS, consider the following. Since the onset of the pandemic more than 70 million people have been infected with HIV, 35