Theories Of Declaratory Theory

Had these reforms been in place at the time of the Singh v R case, his defence would be rejected as the deceased had not committed a serious indictable offence. These reforms ensure that those who act out of jealousy are not provided leniency by our judicial system, whilst ensuring that those who may otherwise act out of “battered woman syndrome” are not discriminated in any way. Similarly, the Crimes Act 1900 (ACT) - Sect 13 dictates that: (3) However, conduct of the deceased consisting of a non-violent sexual advance (or advances) towards the accused— (a) is taken not to be sufficient, by itself, to be conduct to which subsection (2) (b) applies; but (b) may be taken into account together with other conduct of the deceased in deciding whether there has been an act or omission to which subsection (2) applies.

while at the same time not talk over the reader’s head or bore them to death with legal writing. Mr. Forsythe has collected original research that has exposed new pieces of evidences about important problems dealing with the legal reasoning choices and the pieces of evidences mentioned in the people’s majority opinions.

The judicial branch plays many roles in interpreting the constitution and implementing public policy. As first order, the judicial branch has gain the powers, over the years, to declare laws passed by Congress unconstitutional and pledge them to be null and void. Judges from courts usually are strict constructionist, or they depend solely on personal ideology. If they do not base their court cases off of personal ideology, then they use previous cases which have occurred before. Judges try and find cases previous to those brought up and connect them in a special way. The connection allows them to have similar rulings. Doing so is called stare decisis. This ultimately allows them to refer back to old cases and their rulings, or establish a new

Oliver Wendell Holmes, Jr. once stated, “The life of the law has not been logic; it has been experience” (Holmes). In making this comment, Mr. Holmes an American jurist who served as an Associate Justice of the Supreme Court believed that logic should not be the only particular way of understanding a system of rules, but by the influence of one’s knowledge and legal skepticism toward the law. Similarly, proponent’s of legal realism, which is a naturalistic approach to law that focuses on predicting what judges actually do in deciding cases felt the same way as Oliver. On the other hand, supporters of formalism insisted that the law and legal reasoning should determine all adjudications based on objective facts, unambiguous rules, and logic.

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.

Common law has roots in the English system of law, it developed in England following the Norman conquest of A.D. 1066, which became Common Law which was the body of the legal decision that were made by the English court judges. This law started out was an oral law decision making that resulted in the court judges walking around the country that would go town to town to try cases. This was the nicknamed the “unwritten law” which resulted in the oral law that served as the precedent for deciding successive cases with the same type of facts, and this lead to the doctrine called star decisis which meant to “stand by a decision which was previously decided. This doctrine was the one that gave way to a rule that prior law decision made was to be followed, unless it is turned over with a new rule established if there is no good reason to do so. So in terms that are easy to understand, if society changes can decide that if a precedent is no longer valid, a court of law may decide that a precedent is simply incorrect and will adjust accordingly.

Marital raped victims have not received the support for prosecuting this abuse. Previously in the United States, the act of forcing one’s wife to have intercourse was not defined as “rape”. It was defined as “the forcible penetration of the body of a woman, not the wife of the perpetrator.” (McMahon-Howard, Clay-Warner and Renzulli). By this definition, husbands were exempt from being prosecuted for forcing their wives to have sexual

When it comes to the rule of law, everyone has to answer to someone including the judge because no one is above the law. In all other civilizations, the rulers make the laws and keep the laws but after sometime, they keep the laws and become above the law. This means the law does not rule them, they rule the law. This can be seen mostly in places like China and Russia where the rich and powerful have one law and another for the common person. This can be defined as the ability for people with power to impose their will on others despite their

Today marital rape is considered a crime, whereas in history, it was acceptable for the husband to have nonconsensual sex with his wife. Wives were once known to be their husbands’ possession, giving the husband ownership of her body which in turn gives him the right to have sex with them without her permission. The law back in history once said, a man cannot rape his wife, because when they get married, the marriage gives the husband consent to sexual intercourse. It was said rape only happens by an acquaintance or a stranger outside the marriage.

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

In 1736 Sir Matthew Hale claimed that marriage provides a permanent consent that cannot be withdrawn according to Lily Rothman of Times Magazine. The notion that rapists can only be strangers to rape victims victims is a close minded way of restricting the sickening crime of rape. Rapists can be anyone: family members, strangers, and spouses. Throughout history, women are expected to serve and please their family. Tending to a man’s needs were expected and never questioned. Women being a man’s “property” was also a belief that was present for many centuries and is still supported by some people of all generations. Men were able to control women physically, mentally, and emotionally. Therefore, rape within a marriage was completely legal in the U.S. in prior decades. Whether the couple previously had sexual relations or not, someone refusing to give consent to have sexual relations, is in fact

For instance, Lord Browne-Wilkinson said “this theoretical position [that judges do not make or change law] is, as Lord Reid said, a fairy tale in which no one any longer believes. In truth, judges make and change law”.10 It shows that the idea has spread and was becoming more widely accepted. It has become the modern way of viewing the judicial law-making.

Marital rape and the foundation of exemption has dated back to the 1700’s, where the first documented legal statement of marital rape occurred in 1736. Sir Matthew Hale, who at the time was the chief justice of England published a statement stating that a husband cannot be persecuted for raping his wife. "But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto the

Law is continuously moving and changing, since it is the nature of law to be restless. This happens in response to the pressure of the forces that arise in the inner life of the community or that penetrate from outside. Whenever a body of law comes into contact with other systems, it ceaces to preserve its native character intact and instead it takes on new colors of form and content derived from foreign law.

Mandal says, if the legal category of rape implies sex without consent and the legal understanding of marriage entails compulsory sex, then the two will be considered mutually exclusive and the very notion of ‘marital rape’ a contradiction and an impossibility. English jurists in the seventeenth and eighteenth centuries, such as Matthew Hale and William Blackstone, which provide doctrinal support for exempting husbands from the offence of rape, underscore exactly that: the conceptual impossibility of marital rape. For Hale, if the wife had consented to the matrimonial contract, then she could not retract that consent when it came to sex, which was an implicit term of that contract (Geis 1978) (255). In Canada, both prosecutors and defence lawyers alike think that the sexual history of a couple is relevant to rape trials, because if the wife usually consents to sex in a certain manner or in certain circumstances, then the husband has every reason to presume her consent at every occasion, thus resuscitating Hale’s theory of continuous consent in marriage (Lazar 2010) (256). Greenfield includes, prior to 1991, Sir Matthew Hale explains,