The UK Legal Methods and Legal Systems - Essay Example

Order 197299     U.K Legal Methods and Legal systems Approaches to Law and Legal Reasoning Legal analysis is a matter of interpreting data in termsof high level concepts. But in law the data are like those for a system aimed at understanding natural language.hey tell a story about human events that may lead to a lawsuit. Statements of the law, too are written in natural language ad legal arguments are often arguments about what the language means or ought to mean. Few automated legal reasoning systems have been developed in domains of law in which a judicial decision maker ha extensive discretion in the exercise of his /her powers. When scrutiny is done on the trustworthiness or authority of reasoning, we might be asking about its rigor locally to some system or paradigm or worldly in its efforts to establish one system over all others. Most legal system do not support well argued stories on both sides, the reason is, it is not the case the physical universe supports well argued stories on both sides of arbitrary proposition of physical chemistry, this not only happens in law, there is confident in its regularity that we put lawyers under a professional obligation of zealous representation without even asking whether the clients case has a leg for zeal to stand on .Why do most cases support well argued stories on both sides? is it due to the nature of human conduct? is it due to the ambiguity of virtual and responsibility? is it due to flexibility of interpretation ?Is every deed somehow intrinsically subject to morally polar interpretations? or is it due to the content of ours laws? is it due to the ways that deeds, interpretations and interact?Consquently what the thought experiment proves is that at least our decisive part of reason why almost cases in our legal system do support well argued stories on both sides is that the content of our laws gives support to all these parties. The judge who has to choose between two well written briefs or two well argued precedents is forced to decide between two paradigms and to the extent operates one large step beyond normal legal reasoning toward revolutionary legal reasoning. But the judge is still working within a legal paradigm, still choosing premises from within the system, and in that sense is not fully revolutionary. Constitutional Aspect of Legal Method The U.K constitution is an unwritten one. Even though most of the constitutions exist in unwritten form, court judgements and treaties. The bedrock of British constitutional has traditionally been the doctrine of parliamentary supremacy or parliamentary sovereignity, accordingly to which statutes passed by parliament are the U.K `s supreme and final source of law.(wikipedia.org) Statutory law is often considered the most important source of the British constitution. In practice some principles and elements of he constitutional, such as rule of law, are ancient and ingrained in the U.K `s political culture that they would extremely difficult to abolish. Parliamentary sovereignty and of the rule of law have been widely considered the most important principles of the constitution since the nineteenth century and attempts to substantially circumvent them would likely be met with backlash by the electorate of the monarch. Because the United constitution adheres to he principle of parliamentary soverignity, no hierarchy in statutory Acts parliament. In Thoburn v.Sunderland City Council, Lord Justice Law from the High Court decided that he would try establishing a principle of law of law on this matter, which the United Kingdom courts ought to recognise Statues 1: The Basics Statutes are laws enacted in parliament and have a wide coverage nationwide. In the construction of statutes, words and phrases shall be construed according to the commonly approved usage or language and technical words and phrases, and such have acquired a peculiar and appropriate meaning in the law, shall be construed and understood accordingly. Statutes2:Search for Legislative Intention Search for legislative intention is compelling because the application of a statute can be adversely affected it competing or contradictory meaning is assigned to it. It’s also important because of the relative “Superiority” of statutes in relation to common law. Using legislative history to interpret statutes is now normal practice in the federal system. Agencies and court do it non-timely. Despite use of legislative history there are no rules or even guidelines for its use other than the so called plain meaning rule which is largely ineffective. Legislative intention can be imported from the statute itself. Statutes should be read and interpreted bearing in mind the intended purpose of the legislature while enacting the statute. Common Law Reasoning Common law was splendidly auto theoretical contrivance in social context. The fact stands out above the background or speculative explanation the distinguishing mars o the common law as an intellectual tradition are resistant to systematization, its refusal to consider more than the case at hand, and the extraordinary weight of inertia with it resisted attempts at academic or comprehensively analytical statements of substantive rules and their presumptions. The life of common law has been in the clause of its elementary ideas. If rules of property give what seems an unjust answer try obligation, and equity has proved that from the materials of obligation. You can counterfeit the phenomena or property. If the rules of contract give what now seems an unjust answer, try tort. If the rules one tort, say deceit, given what now seems an unjust anwer, try another, try negligence. The starting point of re-conception of the common law history is the device of reasoning which we call the legal fiction. What follows is an attempt to make some suggestions, arising from an ongoing investigation of legal fictions in the history of common law thought concerning the significance of legal fictions for the theorists attempting the analytical description of common law process. One feature of the common law system at which might expect to see theoretical attention devoted is that there have always been, in both England and America, significantly overlapping jurisdiction among the different courts having authority to hear and determine disputes. Instead theorists have almost entirely ignored the problem with attention given to the courts rather than the legislative as the primary locale for rule formation, the proliferation or overlapping jurisdiction may perhaps be ascribed some functional significance, but theoretical simplification which allows the theorist to concentrate on a world containing a single law maker and single adjudicator is so attractive that it has over whelmed the obvious descriptive pressure for a richer analysis. Environmental Justice The right to clean environment is not only an environmental issue. It’s a human rights and health issue; too, for some people particularly working class communities, it is a life and death matter. The concern of a clean environment and free of pollution that can cause a health hazard has been emphasized throughout the democracies. A threat to life by environmental disaster has been looked at with caution and the environmental advocates have always been at the forefront preaching the gospel of maintaining a clean environment. The Kyoto protocol to have industrialised nations to reduce gas emissions to the atmosphere is one example. Though many democracies in the industrialised nation have been slow n ensuring that the protocol is implemented, the U.K is no exceptional I this case, has been at the forefront in trying to find a solution to the Kyoto. One leading case in the Indian Courts which occurred in 1985 where a company was engaged in he manufacture of oleum gas, negligiently left the turbines unattended occasioning a leakage and in the event affected thousands of people, some died and others suffered permanent incapacity. Subsequent generations were affected. The courts besides deciding on the monetary compensation decided that companies should put in place measures to ensure masses do not suffer injustices out of the acts of the companies engaged in manufacturing. It not only deprives people of their fundamental right to peaceful enjoyment of life but also right to live. The Supreme Court in its ruling said that people had a right to a lean environment and attributed such acts to a blatant denial of rights which are fundamental. Comparative Legal Method Despite the fact that comparative law for several decades has been the subject of ardent academic discussions and scientific scrutiny, ther is still some ambiguity as regards its principal designation in contemporary juridical sciences. What is comparative law perse a scientific method, a pure science or an educational discpline? The problem has been exciting comparatists since the very birth of comparative law of the 20th century. The theory of comparative method puts at the forefront comparison itself, while comparative law is frequently associated or even sometimes equated with it. There are always certain discrepancies about this theory concerning he purpose and the subject matter of comparison. The competent has to represent a process. H.Gtteridge for example, devoted an entire of his books on comparative law to he comparative process. He discusses various obstacles to comparison, including identifying sources and objects of comparison and also proposes to surmount those obstacles. Nevertheless, it appears hardly possible to determine the character of the comparison process. Comparatists only refer to the necessity of comparison of similar legal system. He fails to mention the significance of comparison for the establishment of differences in those legal phenomena which were initially believed to be identical or similar. Another distinctive feature of the theory of comparative law as a method of legal science is that it plays an important role in the interpretation of legal norms pertaining to various legal systems to another. Some comparatists are inclined to regard the applicability of comparative legal research. G.Samwel contends that comparative law is nothing more or less than methodology and that it main task consists in acting as a tool for the study of internal structures of legal knowledge. Y.Timkhnov adheres to the same position and assets that comparative law as a science has its own research subject and methodology. It is the starting point of all comparative legal researches the above thinkers stress that function is the starting point and basis of all comparative law and that different legal can be compare only if they solve the same factual problem, satisfying the requirement in adequate legal regulation. Comparative methods are applied in comparative law as basic specialised method of the research of legal phenomena. The emergency of comparative law as a science resulted from analysing and resolving new problems in general jurisprudence. Another viewpoint is that science of comparative jurisprudence originates from the synthesis of the comparative method with legal philosophy. Put differently, Comparative jurisprudence is a philosophical direction representing a comparative study of conceptual notions which constitute the institutional basis of one or more legal systems. The role of comparative jurisprudence in this case consists in constructing the methodological pillar of legal philosophy and pursuing the informational function. Irrespective of how we perceive comparative law as a method or as autonomous direction in legal research today it has become a reality it has acquired a solid standing and won universal application in other legal sciences. Comparative law is relatively young science in the system of jurisprudence. It has not yet been sufficiently investigated and there are many unanswered questions. What is comparative law? have received a great range of answers .It is most probable that comparative law will remain a stumbling block for legal scholarship for generations to come. Critique Approach to Law It is necessary to have a method to examine critically whether a normative system is effective. The system exists for Kelsen in the realm of the ought. However the concept of ought as such is an idea, existing in realm of thought. The ought can only have a psychological existence, because the idea representation which the subjects of the norm make with respect to the content of the norm is a cause of the realization by these some subjects of the state of fact prescribed by the norm. This insistence upon a real dimension to law informs Marganthans critique of Kelsen`s theory of the hierarchy and dependency of norms enjoy validity through a process of delegation must have an empirical dimensions. Never forget that everything that Hitler did in Germany was legal Martin Luther King Junior, one of the renowned civil rights activists in the United States and of 21st Century had view on the manner in which the Jewish Holocaust in Germany and other injustices he effected on people. He referred to this because according to him Hitler he was doing legalities and he had the force of the law to everything he did. Just because the courts never condemned his actions it means it was widely accepted by the law in force. As no legal action could be taken on perpetrators of the injustices then it is presumed that all was legal within the laws of the land at that time. Hitler never faced ant court for his acts and this failure of the laws to have him face the courts almost legalises his acts. Bibliography Sebastian Urbina, Legal methods-2002. cupAmericaarticle.pdf www.ejrc.cau.educ www.efcl.org Read More