In high school, I just did what I had to do to get B’s and C’s. I could do that without doing my homework, so I didn’t do homework. I didn’t push myself to be an A student because as long as I passed and graduated, being the top student didn’t matter.
I did want to go to college, though, because when I was 6, I promised my dad that I would ( Its happenning ..) Having an education meant the same thing to both of us that I could use my knowledge to achieve my goals in life. One of my goals, partly because my Mom taught me to write ,we often spends time and money together in books ...and magazine ..okay Novel ..
So thats how i learn myself to do My Law assignment . At first i was struggled to max, as its realy new thing for me to do .I just scared that im doing the whole thing wrongly.
But i did managed to do it .
CONTRACT
Bob is a stamp dealer. On Monday he puts an advert on his
website stating, ‘Utopian Penny Red Stamp, one only, £2,000’.
Later that day, Alan, a stamp collector, telephones Bob and
says, ‘The Utopian Red for sale, I’ll give you £1,500 for it’. Bob replies, ‘I cannot accept less than
£1,750, but since you’ve been a good customer in the past, I won’t sell it to
anybody else before Saturday. Let me have a reply by Friday if you want
it.’ Alan says, ‘Thanks, that’s good of
you – remind me to buy you a drink when I see you. I’ll think about it and let
you know.’
At 7.30 am on Wednesday, Alan sends Bob an email saying,
‘Ok, I accept your offer to sell the Utopian Red for £1,750 – when can I pick
it up?’ Unfortunately Bob’s email system
diverts this email to his ‘junk mail’ folder, so that he does not read it. At 2 pm on Wednesday Bob sells the stamp to
Charles for £1,800.
On Thursday Alan’s wife meets Charles’s wife at the
supermarket. Charles’s wife complains about the amount of money Charles has
been spending on stamps, including a Utopian Red, which he has just bought from
a dealer. Alan’s wife reports this to
Alan, who immediately sends a further email to Bob, confirming his previous
message. Once he has sent this he notices an email from Bob in his inbox. In
this email Bob says that he is having to withdraw his offer to Alan, because he
has accepted a better offer from Charles.
Advise Alan.
Fair
Podcast: the
Fair
The first question to consider in advising Alan is whether
Bob’s advertisement is an offer. Advertisements can be offers, as is shown by
Carlill v Carbolic Smoke Ball Co (1893). In this case, the Smoke Ball Co
advertised its smoke balls as able to prevent the ‘flu, and offered £100 to
anyone who caught the ‘flu after using them. Mrs Cargill used the balls but
then caught the ‘flu. She sued the company. The court held that the
advertisement was intended to be an offer, as shown by the company’s statement
that it had deposited £1,000 with a bank to meet any claims. Mrs Cargill was
successful in her claim. (1)
A case that is more relevant to Bob’s advertisement is
Fisher v Bell (1961), in which the display of a flick-knife in window was held
to be an invitation to treat rather than an offer. This approach was applied in
Partridge v Crittenden (1968), where a newspaper advertiser offered
bramblefinches for sale at 25 shillings each, and was charged with an offence
under the Protection of Birds Act 1954 of offering a wild bird for sale, but he
was not convicted because the court held that this advertisement was not an
‘offer’ but an ‘invitation to treat’, because the offeror did not have an
unlimited supply of wild birds, and so couldn’t have intended to sell one to
everyone who replied ‘accepting’ his ‘offer’. (2)
Assuming that Bob’s advertisement is an invitation to treat,
the next point to consider is the telephone conversation between Alan and Bob.
Alan says that he will pay £1,500 for the stamp, but Bob replies that he is
only prepared to accept £1,750. Alan has
made an offer to buy, and Bob has responded with a counter offer. Offers and counter offers are dealt with by
Hyde v Wrench (1840), in which a farm was offered for sale at £1,000. A
prospective buyer offered £900, which was rejected by the owner. The buyer
later tried to accept the original offer to sell at £1,000. It was held that he
could not, because his counter offer of £900 had destroyed the original offer,
so that it could no longer be accepted. From this it can be seen that Alan and
Bob have made an offer and counter offer, but that neither of these has been
accepted as yet. (3)
Bob says that he will keep his offer to sell at £1,750 open
until the end of the week. On Wednesday, Alan sends Bob an email accepting this
offer. The rule for posted acceptances is that they take effect on posting, as
is shown by Adams v Lindsell (1818). In this case a letter offering to sell
wool was misdirected. The offerees replied as soon as they received the letter,
but because of the delays the owners sold the wool to someone else. It was held
that a contract was made as soon as the letter of acceptance was posted. This
was because, otherwise, the parties could go on for ever exchanging letters
waiting for confirmation that their last letter had been received. The postal rule applies even where the letter
is never delivered (Household Fire and Carriage Accident Insurance v Grant
(1879)). So, if Alan had posted his acceptance to Bob, he would have a contract
as soon as his letter was posted. But he sent an email rather than a letter and
we must now consider whether the postal rule applies to emails. In Entores v
Miles Far East Corporation (1955) Lord Denning held that making a contract by
telex or fax was like shouting across a river. As a result the postal rule
should not apply. So the postal rule
will not apply to emails, assuming that it is treated in the same way as telex
and fax messages. (4)
Alan’s email is never read by Bob, so it cannot operate as
an acceptance, though Alan may argue that Bob should have checked his junk mail
folder, because it is not uncommon for emails to be misdirected as spam when
they are not, and Bob should have been looking out for replies to his advert,
especially from Alan. This is not a very
strong argument, though, and I would not advise Alan to pursue it further. (5)
Another argument Alan could use is to say that his email
should take effect once it is received on Bob’s computer, even though Bob does
not read it. This would be using the decision in The Brimnes (1975), where it
was suggested that instantaneous communications sent in office hours should be
taken to be effective as soon as they are received. (6)
On Wednesday afternoon Bob sells the stamp to Charles, so he
cannot now sell it to Alan. He has not, however, withdrawn his offer to sell to
Alan at £1,750. So Alan is still entitled to accept that offer, if he does so
before he is informed of Bob’s sale to Charles, which would clearly imply that
Bob has withdrawn his offer to Alan. An
offer can generally be revoked at any time until it has been accepted. This was
established by Payne v Cave (1789). The
revocation must be communicated to be effective. This was held in Byrne v van
Tienhoven (1880), which was concerned with a revocation sent by telegram. It
was held that it only took effect when it was communicated to the offeree, not
when it was sent. (7)
We must now consider whether Alan’s second email, again
accepting Bob’s offer to sell the stamp to him at £1,750, is effective before
Bob has revoked his offer to Alan.
Before he sends this email he is told by his wife of her
conversation with Charles’ wife to the effect that Charles has just bought a
Utopian Red stamp from a dealer. This is a very vague statement and it should
not be regarded as having any direct legal effect, though clearly it raises
Alan’s concern that Bob may not have received his previous acceptance, and that
is why he sends his second email. Once
he has sent this he notices an email from Bob in his inbox. In this email Bob
says that he is withdrawing his offer to Alan, because he has accepted a better
offer from Charles. Because Alan only reads this email after he has sent his
second acceptance to Bob, it comes too late to withdraw Bob’s offer. Alan has
already accepted, and so has a contract for the stamp. (8) He can claim the
stamp from Charles, because he started negotiations with Bob before Charles had
any dealings with Bob, and so his contract should take priority. (9)
As we have seen, the dealings between Bob and Alan have
probably resulted in a contract, which Alan can enforce, but the final result
would have to be determined by the court. (10)
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Bob is a stamp dealer. On Monday he puts an advert on his
website stating, ‘Utopian Penny Red Stamp, one only, £2,000’.
Later that day, Alan, a stamp collector, telephones Bob and
says, ‘The Utopian Red for sale, I’ll give you £1,500 for it’. Bob replies, ‘I cannot accept less than
£1,750, but since you’ve been a good customer in the past, I won’t sell it to
anybody else before Saturday. Let me have a reply by Friday if you want
it.’ Alan says, ‘Thanks, that’s good of
you – remind me to buy you a drink when I see you. I’ll think about it and let
you know.’
At 7.30 am on Wednesday, Alan sends Bob an email saying,
‘Ok, I accept your offer to sell the Utopian Red for £1,750 – when can I pick
it up?’ Unfortunately Bob’s email system
diverts this email to his ‘junk mail’ folder, so that he does not read it. At 2 pm on Wednesday Bob sells the stamp to
Charles for £1,800.
On Thursday Alan’s wife meets Charles’s wife at the
supermarket. Charles’s wife complains about the amount of money Charles has
been spending on stamps, including a Utopian Red, which he has just bought from
a dealer. Alan’s wife reports this to
Alan, who immediately sends a further email to Bob, confirming his previous
message. Once he has sent this he notices an email from Bob in his inbox. In
this email Bob says that he is having to withdraw his offer to Alan, because he
has accepted a better offer from Charles.
Advise Alan.
Good
Podcast: the
Good
This problem raises issues in relation to the formation of
contracts. A valid contract in English law requires a matching ‘offer’ and
‘acceptance’. In answering this problem
it will be necessary to consider what constitutes an ‘offer’ and an
‘acceptance’, when these are communicated, and whether an offer can be
withdrawn. Alan wishes to claim that he has a valid contract for the purchase
of the Utopian Red stamp from Bob. To be successful he will need to prove that
he has accepted a valid offer from Bob, before that offer was withdrawn. (1)
The first ‘communication’ to be considered is Bob’s
advertisement. There is no doubt that
the courts would treat this as an ‘invitation to treat’ rather than an offer.
The situation is similar to that of Partridge v Crittenden (1968), where a
magazine advertisement for bramblefinches was held not to constitute the
offence of ‘offering’ wild birds for sale.
One of the main reasons for the decision was that the advertiser did not
have an unlimited supply of the birds, and so could not have intended to
contract with everyone who replied to the advert. Similarly here, Bob only has
the one stamp and so, in the absence of a statement such as ‘first come, first
served’ (as in the American case of Lefkowitz v Great Minneapolis Surplus Store
(1957)), he must be intending his advert simply to encourage potential
customers to make offers to buy the stamp, which he may then accept or reject.
(2)
Alan’s telephone call to Bob is an offer to buy the stamp.
But he is only prepared to pay £1,500, which is less than Bob is prepared to
accept. Bob says that he would be prepared to sell at £1,750. This is clearly a
counter offer. A counter offer has the
effect of making the previous offer no longer available for acceptance – Hyde v
Wrench (1840) – so Alan’s original offer to buy at £1,500 is no longer of any
significance. More important here is
Bob’s statement that he will, in effect, keep his offer to Alan open until
Friday. Is this binding on Bob? The general rule is that an offer can be
revoked at any point before it has been accepted, provided the revocation is
communicated to the offeree. This was established in Payne v Cave (1789). In Routledge v Grant (1828) it was confirmed
that this rule applies even where the offeror has promised to keep the offer
open. This is because the offeree will
generally have provided no consideration for the promise. If the offeree “buys” the promise, by
agreeing to pay, say £5, in exchange for the offeror’s agreement to keep the
offer open, then the promise would be enforceable. Does Alan provide any
consideration? The reason that Bob gives
for keeping the offer open is that Alan has been a good customer in the past.
This cannot be consideration, however, because it is ‘past’ (as was, for
example, the alleged consideration in Re McArdle (1951)) and is, in any case,
probably too vague. Alan offers to buy Bob a drink, but it is unlikely that a
court would regard this as sufficient to indicate a clear mutual intention to
make a binding agreement. It seems more like a social arrangement. The most likely conclusion, then, is that
Bob’s promise to keep the offer open is not binding on him. (3)
On Wednesday, Alan tries to accept Bob’s offer by sending
him an email, but it seems that this email is never read by Bob. Can it,
nevertheless, be regarded as a valid acceptance of Bob’s offer? There is no
direct authority on when email communications take effect in the context of
contractual negotiations, and the Electronic Commerce (EC) Directive)
Regulations 2002, which might be expected to assist, apply only to web-based
contracts and explicitly do not apply to contracts made by exchange of emails.
As a result, the point must be argued by analogy with other forms of
communication. If email were treated in
the same way as the post, then it could be argued that Alan’s acceptance took
effect as soon as it was sent, applying the rule derived from Adams v Lindsell
(1818). In Entores v Miles Far East
Corporation (1955), however, it was held that “instantaneous” forms of
communication (in that case, telex) should be regarded as taking effect when
they are received rather than when they are sent, and this has been confirmed
in later cases, such as Brinkibon Ltd v Stahag Stahal (1983). It seems likely
that email would be treated as falling into the category of instantaneous
communication, so that Alan’s acceptance will not be taken as effective at the point
when he sent it. (4)
The problem is that none of the cases determine precisely
when an acceptance by means of instantaneous electronic communication should be
regarded as effective – is it when it is received on the offeror’s machine (in
this case, Bob’s computer), or when it is read by the offeror, or at some other
point in between? In Brinkibon Ltd v Stahag Stahal (1983) the House of Lords
refused to lay down any universal rule, holding that it must depend on the
intentions of the parties, and the surrounding circumstances of the particular
case. It seems, however, that business communications sent during office hours
should normally be regarded as effective as soon as they are received on the
recipient’s machine (The Brimnes (1975)).
If that is the case, then Alan may have a good argument that his
acceptance of Bob’s offer was effective on the Wednesday morning, so that he
would be able to sue Bob for breach of contract for not selling it to him. His damages would be based on how much more
than £1,750 it would cost to acquire a Utopian Red from another source. (5)
If, however, the view is taken that Alan’s email of
Wednesday morning is ineffective because it has not been read by Bob, what are
the effects of the subsequent events? The significant actions are the sale of
the stamp by Bob to Charlie at 2 pm on Wednesday; the revocation email sent by
Bob to Alan at some point on Wednesday or Thursday; the communication to Alan
by his wife of her conversation with Charlie’s wife, which may be taken to
indicate that Bob has sold the stamp to Charlie; and finally, Alan’s second
‘acceptance’ email, sent on Thursday.
The question that needs to be determined is whether Bob has effectively
withdrawn his offer to Alan before Alan has accepted it by means of this
Thursday email. (6)
As we have noted above, the general rule is that an offer
can be withdrawn at any point before acceptance. Such revocation must, however, be
communicated to the offeree (Byrne v van Tienhoven (1880)). Has there been such
communication by Bob? The first possibility is the communication via Alan’s
wife. Indirect communication of a revocation by a third party is possible, as
is shown by Dickinson v Dodds (1876). In this case, a third party, who was
involved in the offeror’s business, told the offeree that the offeror had
decided to sell certain property, which he had offered to the offeree, to
someone else. It was held that the offeree, having received this information
from a reliable source, was no longer able to accept the offer. Its withdrawal
had been effectively communicated via the third party. Would the same view be
taken here? Alan might legitimately point out that information passed on via a
casual conversation in a supermarket, and which does not even mention Bob’s
name as the seller to Charlie, is rather different from the specific inside
information provided in Dickinson v Dodds. The source in this case is not
necessarily reliable, and there is always the possibility that the sale was by
another dealer. On this basis, Alan has
reasonable grounds to claim that his second email should be regarded as
effective, unless Bob’s withdrawal email takes precedence. (7)
It is at this point that timings become crucial. As has been
argued above, Alan’s second email is only of any relevance if his first
acceptance was ineffective because the court takes the view that emailed
acceptances only take effect on being read by the offeror. The same rule must, therefore, apply to his
second email – it will be effective when read by Bob. Similarly, Bob’s emailed revocation of his
offer only takes effect when read by Alan. The determining question will,
therefore, be whether Bob read Alan’s second acceptance email before Alan read
Bob’s revocation. We are not given sufficient information to determine these
timings. A review of the relevant computer files to show which email was opened
first will be the only way to determine the outcome. If Bob opened Alan’s email
first, then Alan’s acceptance is effective and he will be able to sue for
breach; if Alan opened Bob’s email first, then the revocation is effective, and
Alan will be without a remedy. (8)
In conclusion, Alan may well be able to argue that he has a
contract with Bob on the basis of his first acceptance email, assuming that
this is taken to be effective once it has been received on Bob’s computer. If
that assumption is incorrect then, on the basis that Dickinson v Dodds can be
distinguished, the rights of the parties will depend on the exact timings of
the last two emails, and who read which email first. (9)
__________________________________________________________________________
COMMON LAW REASONING - QUESTION
’There was a time when it
was thought almost indecent to sggest that judges make law –they only declare
it .Those with the taste for fairy tales seem to have thought that in some
alladin’s cave there is hidden the common law in all its splendor and that on a
judge’s appointment there descends on him knowledge of the magic words ‘’open
sesame’.. We do not believe in fairy tales anymore. (lord reid :the judge as
law maker )
do judges make law ? Discuss with reference to decided cases.
---------------------------------------------------------------------------------------------------------------------
One of the greatest
ironies of American history is the influence of Sir William Blackstone through
his declaratory theory. It is interesting on his declaratory theory describing
the fact that judges do not make laws they simply discover and declare what the
law has always been.
As mention earlier , Sir William Blackstone suggest that judges are not making
law but merely by precedent,discover and declare the law in a way it should be.
His theory thus preserving the supremacy of parliament. He defined judges as
law finder ,as they must act to what parliament provide and therefore judges
must not be law creator . According to
Lord Reid he viewing declaratory theory as a fairy tale
that its merely a set up that no one believes . The judges make a law within
narrow limit in developing or creating new law is unavoidable to do justice .
He successfully explains overulling of the theory.
There have some
supporting arguments in favour of Sir Wiliam Blackstone , as followed .Firstly
, allowing unelected judges will create inconsistency as it contradicted to
principle of democracy. Besides that Farrar one of law specialist argues that its
too risky by allowing judges interfering law making decisions as they will be
indirectly attached with political field. Other than that ,
Lord Devlin states that judges should not become social reformers as its will decrease the quality of law as
they tend to think in improving the law for society . This would absolutely
makes judges not administering the law fairly.
Why are judges not to be law creators but only can be law finders ? well
,judges were selected for privileged background and they are not fully attached
to social environment. They do not take account of economic and social issues
or any implications of their decisions. The judges must leave public related
issued for the government as its not their field to consider.
So who are judges and whats their role in justice system.
Well ,judges played crucial roles in judiciary as they are to determine the freedom of the judiciary, the symbol of justice and are the one in
charge of apply the law in the case before
them. Nevertheless, there is an issue of whether judges do make law. In
other words ,there has been questioned on whether judges merely
law finders or are they really law-makers ? I would said that
on occasions it might be that their interpretation of law makes’ own law.
In the legal system, the primary role of judges is to apply the existing law
into the case he is deciding currently. So, judges need to find any
pre-existing law and finalizing their decision. The judges must act as law
finders instead of lawmakers. They have to find the law and not to enact the
law. This is due to the fact that by the doctrine of separation of powers,
judiciary shall not interfere with the role of the legislature. So,
judges shall not interfere with supremacy of the Parliament, which is supreme
in law making decisions.
In spite of that , as the common law developing through times ,so does the
functions of judges . Instead of doing their job as a law finders where they
were provided with numerous sources of law in deciding cases but they becoming
the law makers eventually . This possibly because of their interpretation
occasionally creates own law. Those judges somehow have good knowledge of law
that they makes law instead of applying the law.
If I were ask, do judges makes law ? Well ,yes judges do makes law as Lords
Browne Wilkinson said in case of Kleinwort Benson v Lincoln city council . ‘’The
theoretical position has been that judges do not make law or change law ,they
discover and and declare the law which is thought the same.according to this
theory when the earlier decisions is influence law is not changed ;it is true
nature that it disclosed having existed in that form all along…’’ .In truth
judges makes law and whole common law is about judges made law .
Determining the boundaries of judicial law making is partly a doctrinal and
epic a constitutional question. In the case of McLoughlin Appellant v O’ Brian,
Lord Scarman took a middle course, he
said; "The objective of
judges is the formulation of principles; policy is the prerogative of
Parliament." He is on the view
that the duty of a common law judge is to conform the principles
of law and allow a decision to be made
on the facts under discussion. This may involve creation of new law.
Whatever the case, judicial reasoning begins from a ‘baseline of existing
principles’. Judicial interpretation keeps the common law ‘flexible’ and up
to date and put off to parliament on those issues with which the courts are not
well prepared to deal with.
The typical ground of the argument lies on the fact that it hard to see
precisely where the dividing line lies between principle and policy.
In
any case, Lord
Scarman notes in his judgement “The
real risk to the common law is not its movement to cover new situations and new
knowledge but lest it should stand shill, halted by a conservative judicial
approach....”
While Lord Scarman’s statement is makes complete
sense, the problem is that the judicial creativity inherently causes
uncertainty in the law. Lord Scarman argues that justice can demand a degree of
loss of certainty in the law. However, the law has to respond to advances in
medical science and technology and changes in life styles and social
circumstances.
In case of R v R is
perhaps one of the best examples of judicial creativity in development of
common law . The House of Lords determined that a husband could be held guilty
for raping his wife. This involved a particularly bold interpretation of the
Sexual Offences (Amendment) Act 1976, which would otherwise seem to preserve the
husband’s exception to a charge of rape. It may be argued that Lord Lane’s unique
approach is equivalent to judicial legislation.This case did not create a new offence merely
declared that it had always been an offence. Although no one could have
known it was an offence.
On
the other hand, R v Clegg case suggests
a kind of situation in which judges will not legislate. D fired several shots
at a car whilst he was on check point duty in Northern
Ireland. The car was approaching the checkpoint at speed and did not appear to
be going to stop. One of the passengers was killed and Clegg was charged and
convicted of murder.
It
was argued that the Houseof lord should
make new law by creating a new qualified defence that would be in favour to a soldier or
police officer acting in the course of his duty. The duty of using excessive
force in self-defence, or to prevent crime, or to effect a lawful arrest.
By doing so it would reduce murder in such cases to manslaughter.
Lord
Lloyd, whilst not contrary to judicial
law-making . Besides this case , R v R can
be as a good example of it , he said
that he had no doubt that they should decline from law making case since the
reduction of murder to manslaughter clearly
matter for Parliament, and not the courts.
The
issue of self defence (and therefore excessive force) did not strictly arise in
this case as when the shot that killed the girl was fired, the vehicle in which
she was travelling had passed Clegg. However, they did review the law on
excessive force.
A
variation on the theme can be found in C v DPP. The case concerned the, presumption that a child between
10 and 14 was incapable of committing a crime. The House of lords refused to
abolish the rule, arguing that although it was not consistently applied, it
was necessary for parliament to legislate. This presumption was abolished
by the Crime and Disorder Act 1998 . From that , Lord Lowry gave the following
guidelines for judicial law-making in deciding this . First , judges should beware of imposing a
remedy where the solution to a problem is uncertain .Secondly ,they should be
cautious about making changes if Parliament has discard chance dealing with problem or has constitute
while leaving the problem unsolved.
Further
more, in case Of Airedale Nhs Trust V Bland [1993] HL is a case that raised three typical
aspet such as moral, ethical and legal issues and role to be played by medicine
in keeping alive someone in a persistent vegetative state. On the facts of the
case, the court had to determine whether or not the patient’s treatment could
be continued. So ,medical opinion was asenting that there was no hope of
recovery ,therefore Court found that there could be no aid to the patient of
continuing treatment.
Lord Browne Wilkinson took the opportunity to consider the correct role of the
courts in such a abounding area. A judge thus must work with ‘existing laws’.
Although there were no satisfactory guidelines within the existing law, a judge
was nonetheless inappropriate to consider the wider scope of decision in the
given case. Given the matter , Lord Browne Wilkinson considered that it was
compulsory that moral, social and legal
issues raised by the case should be considered the basic principle. It was lawful for
D's doctors to stop feeding him synthetically . Even the court had no option but to make a decision one way or the
other.
In
conclusion , i would say that the judges do make law ,occasionally when their
own interpretation of law creates new law. A judge's function is to declare the law and it
is observed by others as if he is declaring the existing law with modifications
or changing the law itself. Therefore it is correct to state that both the
declaratory theory and law making theory as stemming from a judge. The
declaratory theory has no foundation in logic or in fact but , it continues to
be propounded as doctrine by many judges and lawyers Hence theory that judge
made law is advantageous leading to the theory that every principle emerging
out of a decision is capable be changed though it may have been settled for
quite a long time. However, this view is no
longer accepted. There are three reasons for the continuiance of the declaratory theory. In the first place,
it appealed in the separation of powers. Secondly, it concealed the fact that
judge-made law is retrospective in its effect and finally, when the judges face
with new, unusual, or different point, they tend to present as if the answer is
provided by the common law.
References
One scholar has gone so far as to say that "Blackstone
was very extreme in his anti-American bias, and he appeared among the most
vociferous advocates of a harsh and uncompromising attitude. . . . It was this
narrow and uncompromising outlook which led to the break with the American
colonies." Chroust, Blackstone Revisited, 17 U. Kan. City L. Rev. 24,
28-29 (1948)
Commonlaw and Reasoning
Study Manual –Brickfields Asia College Under Chapter Judges Do Makes Law
9 http://definitions.uslegal.com/d/declaratory-theory/
The defence of insanity
needs to be recast as it is outdated and
unjust and in urgent need of reform. Critically evaluate the rules governing
insanity as defence in criminal case.
The defence of insanity is needs
to recast and as it is outdated and unjust , and needs to reform. According to
the criminal law, the defence of insanity is when a defendant tries to prove not
criminally liable for any act resulting crimes , because the defendant was
proved legally insane at the time when crime
was committed. Over the years, academics have identified many damages and
uncertainties surrounding the defence of insanity .
Today, the insanity defense
has become a major issue within the legal system. Although it’s a rarely used
defence in legal system ,but it raises a fundamental question about criminal
liability and also functions of criminal law in handling violent cases . The importance of this defence was
reduced by The Introduction Of Diminished Responsibility
Defence 1957 And The Abolition Of Deadth
Penalty 1965.
This defence was often used
in the history of criminal cases basely on the insanity plead. I would like to
view some example insanity defence of
cases that gives out important criminal element .This insanity defence available to any crime such in case
Horseferry Road Magistrates’ Court Ex Parte K (1996). However
this defence is not available in strict liability crimes that has no element of Mens rea ,such as
in DPP v H (1997). Besides that , the importance of medical
evidence was more stresses in the case of Walton (1978),such that the judge
decides that the evidence support
the defence ,then the verdict of the trial is for the
jury to determine whether he is insane or not .
The history of this insanity
defence was established in 1843, where
a Scottish woodcutter named Daniel M’Naughten murdered the secretary of the
British prime minister in his attempt to assassinate the prime minister.
M’Naughten had gone after the prime minister because he thinks that the prime
minister had caused many of his misfortunes.During his trial, witnesses
testified that M’Naughten was not normal or in other words they claimed him
mentaly unstable .However M’Naughten was
acquitted as he was found “not guilty by reason of insanity.”
The rules of M Naughten was
laid down as authoritative law since in case of
Sullivan (1984) . It was laid down on that case that there must be
presumption of sanity and the burden of
proof is on the defence even in balance probabilities. In other words , the
defendant must be presumed innocent until proven guilty under the balance of
probability.Generally the rules can be divided into three distinct elements
consisting , defect of reason , disease of mind and finally the nature and quality of the act .
The phrase defect of reason was explained in
Clarke (1972) , that this element means that the defendant was deprived of the power of
reasoning. It did not apply to those who retained the power of reasoning but
for the one in moments of confusion or low level of attention in which fail to
use their powers to the maximum.
It is important to
understand that there is a difference
between being legally insane and being medically insane. For the courts, the question of insanity is
decided as a matter of law according to the ordinary rules of interpretation,
procedure and evidence. Over the
years,the judiciary considered various mental states when dealing with the
question of a disease of the mind. Such
in R v Kemp [1956], the defendant
suffered from arteriosclerosis, such that the court held, hardening of the
arteries may cause damages to the brain cells which may be "disease of the mind" but the
physical state of brain irrelevant. It is whether the mental faculties of
reason, memory and understanding are impaired or absent; in this case it was
the flow of blood that affected the mind, not destruction of brain cells. In
other words, a disease of mind does not refer to brain functioning .
The defence of insanity only
concerned with internal factors which include medical conditions such as
diabetes. In R v Hennessy [1989] the
defendant was charged with taking a vehicle without consent. He was a diabetic , despite needing to take
insulin everyday, but not taken it for two or three days before the
incident. He was also suffering from stress
and claimed that as a result of all this
he did not know what he was doing, and so he did not have the requisite mens
rea. The judge was of the opinion that
this was a disease of the mind within the M’Naghten Rules and thus the
defendant was insane. The defendant then
changed his plea to guilty and appealed against the trial judge’s ruling on
insanity. The Court of Appeal upheld the
trial judge’s ruling,that hyyperglycaemia caused by the lack of insulin was a
disease of the mind within the M’Naghten Rules.
The defendant was, at the material time, insane.
The case is an excellent illustration of how
the test of insanity is legal and not medical, as a diabetic would not in most
circumstances be considered insane. It
is also a good example of how, in law, a person can be temporarily insane. In other words the law takes the view that it
is possible for a person to be sane most of the time but suffer a bouts of
insanity. The M’Naghten Rules only
require a defendant to be insane at the time of committing the act.
Besides that, the Post
Epileptic was also act as insanity defence,such in case Sullivan,the defendant was suffering from a
seizure due to Psychomotor Epilepsy when he kicked a man in the head and body.
He was charged with inflicting grievous bodily harm with intent. Medical
professionals claimed that Sullivan was suffering from the third stage of the
seizure, in which he was unconscious and unable to control his movements. The
defence put forward non-insane automatism, arguing that the defendant had acted
unconsciously and involuntarily in kicking the victim and was therefore not
insane. However, since the defendant’s action
was marked by ‘the discharge of electrical impulses into the brain which
had reacted on centres controlling its functions, was classified as a disease
of the mind.
Lord Diplock stated that,
“it matters not whether the aetiology of the impairment is organic, as in
epilepsy, or functional, or whether the impairment itself is permanent or is
transient and intermittent, provided
that it subsisted at the time of the commission of the act. The purpose
of the… defence of insanity… has been to protect society against recurrence of
the dangerous conduct. The duration of a temporary suspension of the mental
faculties… particularly if, as in Sullivan’s case, it is recurrent, cannot… be
relevant to the application by the courts of the M’Naghten rules.
Those cases above
illustrated that the defence of insanity can be raised in internal malfunctions
that cause defect of reasons although the M’nagthen rules governing the defence
of insanity but its only be applied in some cases . Such in case of parks (1992)
the m’nagthen rules was rejected in which sleepwalking was found to be sleep
disorder. However for the traumatic stress disorder for the case of rabey (1980) the m’nagthen
rules were applied .
In uk , the post traumatic
stress disorder seems to fit the term of insanity and used as defence in many
cases, such as T (1990).
Moving onto the next element
in the defence of insanity , is the
nature and the quality of the act. It seems that the defendant must not
understand the nature and the quality of the act. Which gives meaning as to the
defendant must not realise that his act
was wrong .This must be defect of reason , and does not include morally
wrong. To what extent was the morally
wrong means? This problem was exposed in R v Windle, where a strict approach
was taken towards the wrongness limb. In
that case, the defendant killed his suicidal wife by giving her a dose of some
100 aspirin tablets. When he was arrested, he told ‘the police that he supposed
he would be hanged for it. Well , in M’naghten the Law Lords said that if
defendant knew at the time of commiting the actus reus of a crime , or he
realise his action are contrary to the law , so there will be no defence
available for his liability . This principle was also followed in the
case of Johnson, where the trial judge withdrew the insanity defence from the
jury. Psychiatrists in Windle agreed that at the time of the offence, the
defendant knew that what he had done was against the law.
As mentioned earlier , M
Naghten acts as guidelines in judgements and refference to some cases. Some
situations covered as shield but some are not covered by the M naghten rules.
Such in kopsch (1925) an irresistible impulse is no longer accepted as ground
for insanity. In this case the court recognise two grounds :
- the difficulty to
distinguishing between an impulse caused by insanity and by motivated anger or
jealousy
-view on the harder the
impulse the greater need for a deterrent.
In 1953, the Royal
Commission on Capital Punishment suggested, an alternative method to replace the M Naghten rules by, adding a third limb where the
defendant should be considered insane if at the time of his act he ‘was
incapable of preventing himself from committing it…’. The Law Commission’s
Draft Criminal Code (1989) if enacted would replace the term ‘insanity’ with
‘mental disorder’.
Despite the fact of this
negativeness ,the defence of insanity surely in
urgent need of reforms.
The law commissions of draft
criminal code (1989) would replace if enacted ,the term insanity ‘with mental
disorder . As stated in clausa 35 (1) of the code provides as follows :
‘’ A mental disorder verdict
shall be returned if the defendant is proved to have committed an offence but
it is proved on the balance of probabilities that he was at the time suffering
from severe mental illness or severe mental handicap. ‘’
Wherease for the ‘’severe
mental iilness ‘’ which has one or more of the following lasting impairments of
intellectual functions or failure of memory ,or even disorder thinking.
Next would be ‘’severe
mental handicap ‘’ where a state of arrested or incomplete development of mind.
Such as a severe impairment of intelligence and social functioning ,example
Downsyndrome .
From above we can notice
that the reform more emphasis on mental illness rather than a ‘’disease of
mind’’ .
So to conclude ,the ‘exceptional and inappropriate position
in the defence of insanity has led to many criticisms of the M’Naghten Rules.
The rules include epileptics and diabetics, but not the people who think what
they do is morally right but legally wrong, as well as psychopaths who probably
should be deemed as insane. The flexibility of disposal created by the 1991 Act
has made the insanity defence more adaptable and approachabl ,however, the fact
that many are still reluctant to use the defence indicates that perhaps the
defence should be used in exceptional cases only.
______________________________________________________________________
PUBLIC LAW
For karl marx ,law ,religion,art ,morality and
literature are the ‘opium of the masses’. In other words ,if he were asked his
views about the rule of law he would say that its’s a mere construct devised by
the bourgeois class to subjugate the proletariat.
Karl Marx is a well known
philosopher who posited class struggle in the society . If he were asked about
the rule of law , he would thinks that it’s a mere construct devised by
bourgeois to subjugate the proletarians .In other words , he viewing that law being misused by the upper
class ,bourgeois to take control on the working class which is proletarians . His
ideas about law were expressed mainly in
the Communist Manifesto’, the book which he published in 1848. The book
contained , that “law,
morality, religion, are so many bourgeois prejudices, behind which lurk in
ambush just as many bourgeois interests.”
The highlight
content of the book were mainly about his criticism on the operation of
government under the rule of law as nothing more than a mere expression of
“bourgeois” to act arrogantly. Which gives meaning that the rule of law were
used as a tool of power just to governed the working class known as
proletarians by the bourgeois.
Who are this
bourgeoise and proletariat ? Well according what i researched Marx
defined the power of some groups in society by setting up basic map structure
consist of two main figure named as ‘base” and “superstructure”. This
base is consist of the working class (the proletariat), while the superstructure (bourgeoise)
as the capitalist class. Generally there
is some
fact in the nineteenth century shows
that society being invaded or going through dictatorship by bourgeoise which
inevitably produce self destruction.
The main aim of Marx is to find equality between
the bourgeois and the proletariat but what he found was that this two different classes producing
such disturbing environment or in other
words ‘’ totally unstable ‘’ which he
thinks might cause rise against the system. So he believed that criticism will
trigger a revolution because Marx thinks
that his critiscm would awaken the working class to protest for their rights
and their liberism against oppression of bourgeoise . Personaly ,i thinks that
if there are no peace amongst societies ,there wont be a stable operation of
law to conduct.
Practically Marx thinks that the doctrine of rule of
law is not about judges makes law through
rules of precedent or social influence but on how the law been interpret and played. I would said that Marx
view about law is partialy undeniable as society during that time were obsessed
in ruling the proletariat class just to earned substantive amount of wages and high profile life style .
As metioned
earlier , Marx viewed law’s as tool of
power which monopolize by the upper class by invading the lower class and these two class , has involved in the struggle for power. Marx
theory gives ideas of insurrection to societies that allow the
bourgeoisie to make moral decisions and creating laws as unstable societies . His many ideas were unknowingly gives alot of
profits to society such as the subjugation of proletarians were prevented
eventually .
There are different aspect of his approach in defining the structure of his
imaginary society of what he wants the society to be , and the aspect as follow
in religion , philosophically and also
morally .In going through this discussion about Marxism,
it is necessary to further read on his religious dimensions. Its
a truth that Marxism is not a god
believer , as his thinks that this universe should own and governed by
individual practically and should not
influence by existent of super power beyond man limit known as god or paranormal power . As a matter of fact,
Marxism believes and confidently defined
a complete worldview in explaning
the birth of the universe and some theory concerning the final destiny of
humankind which looks realy daring and challenging during the time .
Marx
concluded that the final stage of human
evolution actually go beyond the range of
class struggle, when the ‘’eschatological consummation of global
communism is at last achieved. Even
some philosopher such as David Koyzis
had compared Marxist theory about this
with what contained in bible ’ Book of
Revelation. Such he said that there are may morals of
victory achieved by Jesus Christ but
theory of Marxism teaches the proletarian to fight for their rights and not so
against the history.
Besides that , if we were to look for
his legal theory view , his crucial aim in jurisprudence is not to
promote human rights or to support the separation of governmental powers, and
not even equality before the law, but to criticise ideas of the rule of law and to reveal true colours
of the structures of socio-economic
domination. Thus
in his Principles of
Communism, Engels described such values as individual rights and
equality before the law as fraudulent masks worn by the bourgeoisie for
economic supremacy and exploitation.
However , i have to disagree with his takes on the rule of law , which he thinks that its the contributing facts
that allows subjugation on the working class which the benefits being gained by
the bourgeois. He thinks that the law create force between the two classes in a
negative way.
The
creation of the rule of law is to protect and to develop the state s or society
to a better place , however Marxism ideas were contradict to the reality .
We should believe in law ,
because if we stop believing in it, the ideals that it represents will
disasterous . More over , there should be faithfull follower that will
eventually helps to grow trust in thread
in society .
Let me explain the real purpose of
the rule of law and role should it play in developing better life for human and
the state of government.
The rule of law is not invented but was
popularised by AV dicey in the late nineteenth. As for him , he summarized his
ideas of rule of law into three main principle as follow. Firstly
,no man is punishable in body or goods except for the distinct breach of law
such in case Entick v Carrington 1765. This concept attempt to ensure that the
law is not secret or retrospective
thereby limiting the discretionary power of government. Second principles
summarizing that the law is for everyone , so there shouldn’t be monopolising
of powers or any subjugation of any sides. The final element of Dicey ideas belief
that the common law was capable of protecting individuals rights. Such as if the police suspect in any person that
protect under law , the person has the rights to remain in silent till the
present of lawyers.
Besides Av dicey there have been many other explanation of the rule of law. Paul
Craig argues that there are two main
schools of thought .One approach is formal conception of law which is concerned
in law making process and that obligations imposed by the law.
So back to discussion, i would start arguing that karl marx viewing law in a
wrong ways even if there was exist subjugation during the time by bourgeoise
class people towards working class for the their personal benefits .
I think
that just because there are some bourgeois
with corrupted leadership needs power to
create a 'classless' society and misusing the power of law in wrong way doesn’t change the supremacy purpose of what the law
is about . In other words this is not to presume that the law is
somehow controlled by the bourgeoisie but
there exist, bourgeois rules in a
form of individual manipulation. The
law is created to protects individual rights , which means the law is for
everyone and its does not specify any group of classes but generalize everybody
equally according that postulated by Av dicey equality of law for everyone .
Besides Av dicey ideas on rule of law , there are
some modern day philosopher that defines the doctrine of rule of law such as
Professor Robert Fine explores marxisme takes on rule of law in his
books ‘’Democarcy and the rule of law :Marx critique in his legal theory. From the book, he
examines the classic version to the modern version of the rule of law . In his first section of the book he inferred the economic and socio domination of people according from
what Marx illustrate and arguing his own ideas of how the rule of law being
played in today society. Basically He thinks that modern day was too obessed
with capitalism ,as there were too many business class people that works hard
to obtained great salary to supports their high
One of the most famous
economists of today genre is Adam Smith , he viewed Marxism on his own
perspective . Adam Smith uses a more Western approach when looking at economics and stated that workers will
always search for the finest employment posts and good salaries. However Karl
Marx theory were against from what Adam view because he believed that a labour salary war will
results society to break down and might
trigger biggest impact on the entire
economy.
Besides that ,Adam Smith supported the belief that
everybody have the rights provided in capitalism. However compared with Marx
, he criticized capitalism and
encouraged the idea of individual freedom and
thinks that one day socialism would be used in place of capitalism. Adam Smith supported the notion that every
individual has the rights of not only pursuing happiness, but also advancing in
the society. However, Karl Marx did not approve of this opinion. For him, when people improve themselves so as to
gain happiness, they are essentially endangering their own society.
I shall remind
that my arguements is not fully against marxisme , so when Marxists talk
about the working class, we don't mean a minority of people but we mean the
vast majority of peoples in society. In
a country like the U.S., the more than half
percentage of the population is working class. This applies around the world ,nearly every
country in the world today has a big working class.
Well it cant be denied that although as a communist
there is no believe in creating law as to governing people but there are some contributions made by Marxisme
. For all these years , it became
importants to practising equality so that there wont be any conflict
like happened in Indonesia during Suharto ruling periods . That
incident were mainly caused by dissatisfaction of the Indonesian citizens as he never appreciate efforts made by
working class for the development of the country. This international
perspective makes us realize there should
be equality before the law should be
attached in politism and socialism so that the citizens who consist of
different stages realize that country need them .
Although communism is
seen as one of the world's great
powers, but actually not many countries had interest on it .
According
from book tittled ‘’Marxism In Asia By Collin Mackeras ,there are nine countries that still
practising
communism such as Soviet Union (Union
Of Soviet Socialist Republics), China
(People's Republic Of China), Cuba (Republic Of Cuba), Laos (Lao People's
Democratic Republic), Vietnam (Socialist
Republic Of Vietnam), Korea
North (Democratic People's
Republic Of Korea), South Yemen (People's Democratic Republic Of Yemen), Myanmar
(Socialist Republic Of Union Of Burma) And Cambodia
/ Cambodia (Democratic
Kampuchea).
However, until 2005 only five countries
that remained under communist rule in
China, Laos, Vietnam,
Cuba and North Korea.
To conclude
Marxist
ideas are closely associated with despotic communist regimes, since these
regimes have claimed Marxism as their official ideology. Unfortunately, the
Marxist dream of a lawless society has led only to gross inequality and
class-oriented policies. In fact, Marxist regimes have been far more efficient
in the art of killing millions of individuals than in the art of producing any
concrete or perceived form of social justice.
It is also important to understand that Marx is not a
legal theorist attempting to answer narrow questions of what the law “is” or
“ought” to be. Marx’s ability to use social and economic contexts to examine
the “role” of law, rather than observe what the law is or ought to be, is his
most distinguishing legacy. Do not view Marx as a legal theorist since he is so
much more. View Marx as a social scientist who, in great measure, reduces law
to a tool by those in economic power to exploit the masses. Apart from all this
, Marxism
is still very much alive, and that it has deeply influenced a legal thinkers,
who have affiliated some of its ideas . This may be
regarded as a dangerous development, since history analytically demonstrates that whenever Marxist legal
theory is applied, at least two of its most dreadful characteristics invariably
appear, namely, judicial partiality and political arbitrariness
REFERENCES
21. Jurisprudence January 2006 George D .Pappas, Esq., LL.M. International
Center for Legal Studies
Jurisprudence January 2006 George D .Pappas, Esq., LL.M. International
Center for Legal Studies
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thats how i do it ...and im proud of my work (err..yea im stil learning usage of grammar at the moment )
