Fice Of Fair Trading V Abbey National Lord Phillips Essay

I am pleased that Associate Professor Lee Aitken (TC Beirne School of Law, University of Queensland) penned another article for the bulletin. This time, he considers the New South Wales Court of Appeal decision on NAB v Dionys as trustee for the Angel Family Trust. I cannot write a better “teaser” than Lee himself, so I hope he would permit me to use his words here – a bank will usually try to ensure that a customer checks his or her account balances and alerts the bank to anything untoward. To what extent is the bank able to rely upon a standard clause which

Sanctions are only appealed to in the event that there is a breach. It therefore follows that the opinion of Hart is that various form of law cannot be explained in a single expression as orders backed with threats of sanction. Thus, in contradiction with Austin’s viewpoint, Hart formulated a dual system which contains two types of rules, primary rules (duty-imposing) and secondary rules (power-conferring). Primary rules are generally duty-imposing, which embodies non-optional rules of obligation. It often concerned with standard of behavior as requirement to do or to abstain from performing an act. On the other hand, secondary rules are ancillary to primary rules the former conferring right to introduce, to vary the primary rules and to determine the mode in which their violation could be determined (judicial process). Such secondary rules are rather regulatory or facilitative than coercive in nature. In short, Austin’s catch all theory of seeing law as command back with sanction leave no room for right, privileges given to subject of Sovereignty which does not constitute non optional

It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.

It is easy to see that the legal factors involved are themselves not perfect. Since the Court is made up of human beings who are similarly imperfect, it is not implausible to suppose that the Court likewise

Case Comment: John Michael Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin) 2017 WL 01339062

In similarity to American Legal Realists, Critical Legal Studies scholars believe that the rules that are contained within statutes and common law are unable to establish an outcome in new cases that come before the court . This is partly due to the criticism of indeterminacy they have based on the idea known as legal reasoning.

judges simply apply the law of the land to the issue at hand. They are bound by the

It is possible for judges to take either a Legal naturalism or positivism view when deciding difficult case like Griswold v. Connecticut or Katz v. The United States. The interpretation of the stated law without deviations subjected to morals or political coercion is the foundation to legal positivism. During the decision of these two controversial cases Justice Black takes the approach of legal positivism in his decisions because he interprets the direct law. During the ruling of Griswold v. Connecticut Justice Black supports his decision with a positivism outlook.

This essay will examine the doctrine of Judicial precedent that helps form the English Legal System. It will illustrate various views that have been raised by Judges and relating cases to the use of ‘Stare decisis’ when creating precedents. In addition it will discuss how the developments in the powers of the courts now also allow them to depart from these precedents to an extent.

The impact of Williams v Roffey Bros & Nicholls (Contractors) Ltd [1989] EWCA Civ 5 on the doctrine of consideration.

The legal-formalist belief in the capacity of legal rules to determine the outcomes to legal disputes without having recourse to the judge’s political beliefs or sense of fairness has been severely criticised by, amongst others, legal realists and critical legal studies scholars. This assignment will firstly address what legal formalism entails, following which the criticisms of legal formalism will be discussed and lastly whether legal formalism can impede the transformative ideas of the Constitution. All of the above will be analysed to determine the role of legal formalism today.

Arguably one of the most influential legal theorists of the 20th century, Ronald Dworkin’s dealings with law’s interpretation and integrity has lead to inevitable contradictions with that of positivist ideology, with his work essentially revitalising a method of thinking that had long been considered dead and buried. Perhaps most notoriously, Dworkin combated the positivist theory of his former teacher and predecessor as Professor of Jurisprudence at Oxford University, H.L.A. Hart. When comparing the two, it is apparent that Dworkin and Hart disagree on a plethora of issues, however there exist several

This article discusses the conceptions of legal normativity, both moral and “strictly legal” conceptions. According to Spaak, regarding the normative force of legal justification, legal positivists can still embrace the moral idea and not be in conflict with their generally held belief in the “strictly legal” concept of law. In Torben Spaak’s opinion, there is a reason to desire legal positivism; he explains this through introducing the concept of jurisprudence. When discussing the nature of law, Spaak states, “that while the moral conception is what is likely favored on a smaller scale, the strictly legal conception is more appealing because it is broader,” (478). Spaak is arguing, his belief that “validity-based explanations come nearer to the truth,”(483) rather than belief-based explanations. He concludes that we are to prefer legal positivism over natural law theory. “That is why in this article I have been concerned with the law itself rather than our views about it.”(483)

This paper aims to present Dicey’s formulation of Rule of law; its fallacies ; its applicability in modern times; and Rule of law & The Tinkerbell Effect as analysed by Cameron Stewart.

Hart’s critique of Austin boils down to determining the normativity of law (the reason why we should