Doctrine of Precedent Essay Example | Topics and Well Written Essays - 1750 words

Doctrine of Precedent - Essay Example Therefore, there is a dire need for a coherent case law. This is because it helps in strengthening the predictability of decisions and improves their authority. The doctrine of precedent also known as stare decisis provides that the decision of a higher court within the same jurisdiction acts as binding authority on a lower court within the same jurisdiction (Brassil & Brassil 2000). However, the decisions of higher courts act only as persuasive authority to lower courts in different jurisdiction. Therefore, the concept of judicial precedent requires cases to be decided in a similar way when the material facts are the same. The doctrine is only concerned with the legally material facts in order to arrive at similar decisions (Siltala 2000). On the other hand, Ratio decidendi translates to â€Å"reason of deciding† and can be defined as the material facts of a given case in addition to the decision thereon. Under common law, the doctrine of precedent is used to offer direction, certainty, consistency, and impersonality (Harlow 2005). Even as the doctrine of precedent is one of the most significant features of the common law, this doctrine is not without challenges. It is very important for any judge to identify a clear ratio decidendi in any precedent (Duxbury 2008). One of the main challenges in making decisions guided by precedents is the possibility of two conflicting methodologies employed by Lords to reach a decision. This paper will focus on the impact of the two conflicting approaches used by Lords Wilberforce and Bridge in McLoughlin v O’Brian 1983 and show how the choice between these two conflicting approaches would result to completely different results for the claimants in Alcock v Chief Constable of South Yorkshire Police 1992. McLoughlin v O’Brian 1983 AC 410 In this case, the plaintiff’s husband and their three children were involved in a road accident that was allegedly caused by negligence of the defendants. The accid ent caused the death of one of the plaintiff’s children while the husband and the other two children sustained serious injuries. When the accident happened, the plaintiff was at home two miles away from the scene. A motorist who witnessed it at the scene passed the information on the accident to the plaintiff. After the information, the plaintiff was taken to the hospital where her family members were admitted. When she looked at the extent of their injuries and the news of the death of her daughter, the plaintiff suffered severe and continuous nervous shock. The plaintiff sued the defendants claiming damages against them for the nervous shock, distress, and injury to her health ultimately caused by the defendant’s negligence. However, the suit was not successful because the judge felt that the plaintiff’s injury was not reasonably foreseeable. The plaintiff believed that the defendant’s negligence led to her suffering. This case involved the tort of negl igence that has been a topic of discussion on the evidence of negligence (Stephenson 1996). In tort law, negligence is defined as the failure to execute reasonably, that is, as a normal man would perform. Therefore, according to Harlow (2005) â€Å"negligence is the omission to do something which a reasonable man, guided upon those considerations which normally regulate the demeanor of human affairs, would do, or do something which is prudent and reasonable man would not do.† Having defined negligence as a tort, it is of importance to note that it has remained the most vital tort in modern law (p. 8). This is because it utterly concentrates on the infringement of a legal duty to take care, which may result to damage of property or injury to the claimant. Negligence is known to cause individuals

Technology and beck's concept of world risk society Essay

Technology and beck's concept of world risk society - Essay Example Using this definition as the starting point, we get the subsequent argument that ‘Systemic events’ showed that industrial societies were generating hazards ‘that they could not control’ (Beck, 1999, 51, 44, 72). ‘Compounded risk’ had become the new meta-norm in a networked society (Daniell, 2000, 18). Hence, the thinking here is that the world is spinning out of control with people in the grip of â€Å"blind and impersonal† forces that they can neither control nor comprehend. In this context (Obama, 2006), the development of contraceptive pills and their widespread use has to be seen as a valiant effort at providing â€Å"space† to the marginalized (ethnic minorities, women) as a means of empowering them and providing them with reproductive choices. Ulrich Beck’s World Risk Society (1999) was a sociological meditation on the interlinked forces of ‘globalization, individualization, gender revolution, underemployment, and global risks (as ecological crisis and the crash of global financial markets)’ (Beck, 2000, 2). Beck examined the ‘risk calculus’ concept, the power dynamics and sociology of risk (why groups profit from ‘manufactured uncertainty’), the ‘sub-politics’ of global dissent (anti-globalist and environmental campaigns), and how reflexive modernity uses conjecture in response to crises. Beck’s work was essentially a treatise on the chaos that the processes that we shall talk about subsequently were unleashing on the world. In this context, Beck was in consonance with other social scientists that foresaw a dystopian vision for humanity and tried to warn us to the inherent dangers. In such a bleak scenario, it is worthwhile to consider the fact that the development of contraceptive pills is indeed a bright spot in an otherwise anarchical situation. For instance, Kaplan in his book The