Legal Talks: Judicial Binding Precedent Vs Judge Made Law

The question on judicial precedent being the binding precedent has to be distinctly differentiated. Binding precedent confirms to the hierarchy of courts whereas mere precedent could be persuasive. Today, this doctrine is in the danger of fading off due to the departure mechanism being a tool for judges to move away from the precedent created by higher courts or the same capacity courts. Whilst such endeavor, the question arises does this leads to judges to be a “judicial legislator” i.e. to make law. This discretion apparently is argued as too liberal because the orthodox belief that judge should only interpret statutes and higher court’s decision by looking into the “ratio decidendi” and “obiter dicta” is being defeated. Obviously, this is their constitutional role.

The doctrine of “stare decisis” would sufficiently mean all cases which have similar facts that shall be treated alike simply for the reason for the degree of certainty and in order to avoid injustice at the same time restricts unduly development of law to some extent. However, what generally binds is the ratio decidendi which is the material significant decision and not the obiter dicta which is merely the significant opinion or view provided by either assenting or dissenting judges in the higher court. This argument today is being whittle down for the reason of the attitude of judges i.e. the school of thought of declaratory theory and judge made law theory.

Judges who adhere to the declaratory theory of law where the allegiance owed to the parliament which is considered to be the most supreme law making body based on doctrine of parliamentary supremacy and notion of separation of powers, judges consider themselves to be merely interpretative. Those who belonged to this school of thought undoubtedly Ld Simmonds, Ld Hodson and Ld Salmon who do not give room for judicial creativity and label themselves as passivists judge.

On the contrary, some judges do create reasons and do not want to mechanically follow higher court’s decision by creating new law or expanding the old law. The question is who lingers on this arguments without doubt is Ld Denning or Ld Woolf who have this contention that they’re activist judge whom I would daringly say has created many rooms on judicial creativity. One of the case that ought to be applauded by Ld Denning was Central London Property Trust v High Trees House where he championed the doctrine of Promissory Estoppel and also in the case of Brb v Harington that an occupier owes a duty of care to non-visitors based on grounds of common humanity which later this principle was formed in the Occupier’s Liability Act 1984. this evidently shows that activists judges have prompted parliament to enact law while the conservative beliefs would be enactment of Parliament prompted judges to make law.

To reconcile this two position could be an attempt which would be beyond imagination because this is two different world of school of thoughts. It can be easily concluded that it is the attitude of judges respectively that brings about the judge made law theory on their own whims and fancies probably out of necessity and for want of justice.

However, the departing tools of the exception as laid out by Ld Gardiner in Practice Statement 1966 for the HoL and the Young v Bristol Aeroplane exception has seeped into the system besides the distinguishing factors as what Prof. M. Zander profoundly said “distinguishing the indistinguishable” to some extent.

Hence, there seems to be too many opinions on whether this doctrine of binding precedent is a myth or is it a rule of law that all judges should adapt the “stare decisis” attitude. Prof. Glanville Williams found it strange that the authority that precedent is binding them is the normal HoL instead of parliamentary authority. This clearly indicates why should a judge follow higher authority’s decision besides parliament. Sir Rubert Cross was on the contrary opinion where he indicated that a judge is bound by ratio decidendi. This jurisprudential debate has been going too long. however, there has been no attempt by parliament to put a stop, hinder or prevent that judge made law theory. But whenever lower courts depart from their decision, [higher courts] they are normally reprimanded and admonished upon an appeal either by overruling or reversing which is best illustrated when Murphy v Brentwood District Council overruled Anns v Merton, Anderton v Ryan being overruled by R v Shivpuri, and DPP v Lynch being overruled by R v Harvey.

The question as to what extent the doctrine of binding precedent allows judges to make law would be to be accurately stated depends on other factors such as some judges would avoid the clutches of an unwelcome precedent. Some judges do not believe in the fairy tales of cases. Some judges believe that an adjudication must be settled according to the growth of time and the sophistication of today’s world. some judges also believes that “nakedly usurping the function of parliament” as Ld Simmonds indicated and as what Ld Denning identified his position that at times judges ought to “fill up the gaps” that was unintended by parliament.

Looking at the above argument, it would be wrong to say that the doctrine of binding precedent allows judges to make law; but rather it helps to develop law w/o limits. Another stand would be the various departure mechanisms available to the judge although each mechanism can only be exercised with their respective limitations which again was created by judges has prompted judges to make law rather. As what prof. M. Zander’s that precedents should be treated as the next best evidence rule” and judges will always wish to have the best evidence or precedents as the case may be. This view reflects the fluidity and flexibility of the common law system and the actual practice of courts.

Dr. Phil’s Ten Life Laws in Five Minutes or Less

Dr. Phil McGraw is one of the most recognized and most controversial talk show hosts in America. Many people credit him for changing their lives. Others are turned off his abrasive, confrontational style. Dr. Phil McGraw has a PHD in psychology and practiced for 25 years. He then turned this experience with how the human mind operates into a hugely successful legal career as a trial strategist. It was through this work that he met Oprah Winfrey, who was so impressed with his style and his insights on life that she brought him to television and made him the TV star he is today. Dr. Phil considers himself a student of human nature first and foremost.

In his 1999 book “Life Strategies: Doing What Works, Doing What Matters,” he lays out his ten laws of life. As he puts it; “No one is going to ask you if you think these laws are fair, or if you think they should exist. Like the law of gravity, they simply are.” Agree or disagree – that’s Dr. Phil’s style.

Life Law #1: You either get it or you don’t.

According to Dr. Phil, those who “get it” understand how things work and have a strategy to create the results they want. Those who don’t are stumbling along looking puzzled, and can be found complaining that they never seem to get a break.

Life Law #2: You create your own experience.

This means taking responsibility for your life. Dr. Phil doesn’t believe in victimhood. If you’re in a bad relationship, if you’re in a job you hate, if you’re overweight, then you have no one to blame but yourself.

You are creating the situations you are in and the emotions that flow from those situations. You will never fix a problem by blaming someone else. Instead, start choosing the right behaviors and thoughts. Eventually, it will lead to the positive outcomes you want.

Life Law #3: People do what works.

Even the most destructive behaviors have a payoff. If they didn’t, you wouldn’t do them, right? So, if you want to stop behaving in a certain way, you have to recognize what you are gaining from it. Then figure out other, more constructive ways you can gain what you need.

Life Law #4: You cannot change what you do not acknowledge.

If you’re unwilling or unable to identify and consciously acknowledge your negative behaviors, characteristics or life patterns, then you will not change them. (In fact, they will only grow worse and become more entrenched in your life.) You’ve got to face it to replace it.

Acknowledgment means slapping yourself in the face with the brutal reality, admitting that you are getting payoffs for what you are doing, and giving yourself a no-kidding, bottom-line truthful confrontation. You cannot afford the luxury of lies, denial or defensiveness.

Life Law #5: Life rewards action.

Talk is cheap. It’s what you do that determines the script of your life. Measure yourself and others based on results — not intentions or words. Decide that you are worth the risk of taking action, and that your dreams are not to be sold out. Know that putting yourself at risk may be scary, but it will be worth it. You must leave behind the comfortable and familiar if you are to move onward and upward.

Life Law #6: There is no reality, only perception.

You know and experience this world only through the perceptions that you create. You have the ability to choose how you perceive any event in your life, and you exercise this power of choice in every circumstance, every day of your life. No matter what the situation, you choose your reaction, assigning meaning and value to an event.

Life Law #7: Life is managed; it is not cured.

You are a life manager, and your objective is to actively manage your life in a way that generates high-quality results. You are your own most important resource for making your life work. Success is a moving target that must be tracked and continually pursued.

Effective life management means you need to require more of yourself in your grooming, self-control, emotional management, interaction with others, work performance, dealing with fear, and in every other category you can think of. You must approach this task with the most intense commitment, direction and urgency you can muster.

Life Law #8: We teach people how to treat us.

You either teach people to treat you with dignity and respect, or you don’t. This means you are partly responsible for the mistreatment that you get at the hands of someone else. You shape others’ behavior when you teach them what they can get away with and what they cannot.

Life Law #9: There is power in forgiveness.

Hate, anger and resentment are destructive, eating away at the heart and soul of the person who carries them. Forgiveness is not about another person who has transgressed against you; it is about you. Forgiveness is about doing whatever it takes to preserve the power to create your own emotional state. It is a gift to yourself and it frees you.

Life Law #10: You have to name it before you can claim it.

Not knowing what you want — from your major life goals to your day-to-day desires — is not OK. The most you’ll ever get is what you ask for. If you don’t even know what it is that you want, then you can’t even ask for it. You also won’t even know if you get there!

By being specific in defining your goal, the choices you make along the way will be more goal-directed. You will recognize which behaviors and choices support your goals — and which do not. You will know when you are heading toward your goal, and when you are off track.

Those are Dr. Phil’s 10 Life Laws, I hope you enjoyed them. Now for our question of the day. Of the 10 laws, which ones do you consider the most important? Are there any that Dr. Phil has left out? Please let us know in the comments below.

Thanks for watching, and a special Thank You to Dr. Phil for all of your contributions to the world of Self Improvement!

Legal Talks: Re A (Children) Conjoined Twins: Surgical Separation (2000)

Jodie and Mary are conjoined twins. They each have their own brain, heart and lungs and other vital organs and they each have arms and legs. They are joined at the lower abdomen. Whilst not underplaying the surgical complexities, they can be successfully separated. But the operation will kill the weaker twin, Mary. That is because her lungs and heart are too deficient to oxygenate and pump blood through her body. She is alive only because a common artery enables her sister, who is stronger, to circulate life sustaining oxygenated blood for both of them. Separation would require the clamping and then the severing of that common artery. Within minutes of doing so Mary will die. Yet if the operation does not take place, both will die within three to six months, or perhaps a little longer, because Jodie’s heart will eventually fail.

The parents cannot bring themselves to consent to the operation. The twins are equal in their eyes and they cannot agree to kill one even to save the other. As devout Roman Catholics, they sincerely believe that it is God’s will that their children are afflicted as they are and they must be left in God’s hands. The doctors are convinced they can carry out the operation so as to give Jodie a life which will be worthwhile. So the hospital sought a declaration that the operation may be lawfully carried out. Johnson J. granted it on 25th August 2000. The parents applied to the Royal Courts of Justice, London, for permission to appeal against his order.

The question, or rather questions, that arose out of this was:-

1. Does medical possibility entail legal and ethical necessity?
2. Are some lives more sacred than the other?

In deciding, the courts has relied on the defence of necessity as in Airedale NHS Trust v Bland (1993) where, as mentioned in bold above:- “Separation would require the clamping and then the severing of that common artery.” where clamping of the blood supplies in Re A is similar to withdrawal of artificial feeding that was deemed as lawful in Airedale NHS as patient was in persistent vegetative state, and hence maintenance of life was only by artificial feeding.

In distinguishing, it has to be noted that in Airedale NHS, withdrawal of artificial feeding was fair as patient was only surviving due to the artificial feeding. Persistent vegetative state, although not recognized by statute as death, is a condition of patients with severe brain damage who were in a coma. In this case, Tony Bland sustained catastrophic and irreversible damage to the higher centres of the brain and several attempts were made by Dr Howe and his team, along with Bland’s father, sister and mother, to try to elicit some response from him and for some signs of interaction. However, all attempts failed and he showed no sign of being aware of anything that took place around him.

Scans shows that whilst the brain stems remains intact, there was no cortical activity. The person who was Anthony Bland was gone and there was no reasonable possibility of recovery. With the support of his parents, the hospital applied for a court order allowing him to ‘die with dignity’.

In stark contrast, while the case of Re A relied heavily on the defence of necessity as in Airedale NHS, it has to be noted that the clamping of blood supplies took place while Mary was still alive, albeit being less viable than Jodie. The act of clamping the blood supplies was an intentional act as laid down in R v Woolin where as long as the act results in reasonable foreseeable consequences, it is sufficient to satisfy the mens rea element for murder.

Also, while in Airedale NHS, the removal of the artificial feeding was with the approval of the family members, in Re A however, the act to sacrifice Mary in order to let Jodie live, was not agreeable by Jodie and Mary’s parents, who were devout Roman Catholics.

In defence, Ward LJ has stated rather adamantly that courts are not court of morals.

Mary may have a right to life, but she has little right to be alive – she is killing Jodie. She sucks the lifeblood of Jodie. Mary will survive only so long as Jodie survives. Jodie will not survive long because constitutionally, she will not be able to cope. Mary’s parasitic living will be the cause of Jodie’s ceasing to live.

Ward LJ even went on further to say:

Prohibition of intentional killing was recognised as being “the cornerstone of law and social relationships” and is of “supreme moral value”. However… this is not an absolute rule. Life must be protected from unjust attack and deliberate taking of life is prohibited unless in self defense or in the legitimate defense of others.

My question, is this: Are some life more sacred than the other?

Doctor’s duty, in law, is to protect lives and it is widely known that an act by which a doctor’s primary intention is to bring about a patient’s death would be unlawful. Thus, can these decisions about the relative worth of life of an individual be legally made, when these decisions results in the loss of life that is considered to be less worthy.

The most crucial point to note in this debate would be the violation of the Human Rights Act 1998. Article 2 of the Act provides that everyone has a right to live and it is the positive duty on public authorities to protect the lives of individuals. Hence, by Re A being decided as such in year 2000, isn’t it a clear violation of the HRA 1998? In another words, common law defence of necessity prevails over an Act of Parliament? Where then, is the Supremacy of British Parliament?

The Secret Law Of Attraction Explained

In spiritual understanding, the physical world that seem to be real is not actually real world, it is an illusion. If you understand this, it can help you a lot in mastering the Law of Attraction. That is because the Law of Attraction is part of the Universal Laws and studies about it involves the world beyond physical reality.

Our physical reality is only an illusion created by the Mind itself. Our Mind is part of the Universal Mind; through which everything else is created and also connected. Before any material is created, it must first exist in the Mind in form of imagination and visualization. That is the scientific way of describing the Law of Attraction, where the inner world is the Mind and the outer world is the physical world; and the physical world follows the inner world.

To make the Law of Attraction more simple, it can be said in this way: Everything that we manifest or gain, first existed as thought in our mind. As we kept on focusing on it, the psychic energy of the thought form increased and the Universe transformed the energy into physical material or event. The outer world is nothing but the creation of the inner world. In the book version of The Secret, there’s quote from the Emerald Tablet (circa 3000 BC) and it says, “As above, so below. As within, so without.”

You can achieve anything as long as it is possible by just setting your mind on it. The reason is, if it can exist in your imagination, it can exist in the physical world too. As we have known now, everything in the outer world actually comes from the inner world. If you are having it in your inner world, you can have it too in your outer world. If you have it in your outer world but you don’t have it in your inner world, soon or later, the Law of Attraction will take it away from you.

Many of us knows Albert Einstein – A legendary physician. Actually, even Albert Einstein knew about the Secret Law of Attraction. He have taught it through his words and once he have said, “Imagination is everything. It is the preview of life’s coming attractions.” What does that mean to you? Albert Einstein is teaching the Law of Attraction! He says through imagination, we can manifest our dream into the physical world.

We all know Buddha too, he have said that “All that we are is the result of what we have thought.” That means everything that we are and everything that we will be or have, we first possessed it in our mind. That is exactly what the modern teaching of the Law of Attraction is all about. The term Law of Attraction is not mentioned by Buddha or Albert Einstein but the discovery of the Law had always been existed ages ago.

The main theme of this article was taken from Buddha’s words, “The mind is everything. What we think we become.” Our mind not only can make things happen, it can also create ideas out of nowhere. Sometimes that is the way the Universe communicates with us. When we want something, there’s always a way to get it and the Universe knows the best.