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Evolution of the Law and Judicial Activism - Case Study Example

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In the paper “Evolution of the Law and Judicial Activism,” the author discusses the case of Donoghue v. Stevenson that less than reasonable care would constitute a fault. There should have been a pre-existing duty of care, which should have arisen from the relationship between the parties to the case. …
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Evolution of the Law and Judicial Activism
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Download file to see previous pages In some instances, such fault had been the consequence of the inattention of the defendant. Accordingly, the courts associate fault with intentional offenses or carelessness of the parties involved. Moreover, courts determine the application of fault on wrongdoings or torts. Civil law determines fault in actions of parties where they had exercised less than reasonable care. This insufficient reasonable care would be sufficient to establish a prima facie fault. Previously, the courts had adhered to the principle of there being no liability without fault. Accordingly, a person could be held liable, only if he had committed some fault. This made it essential for a fault to exist. However, the commitment of a fault was not always sufficient for the existence of liability, and other factors were also to be present, in order to establish liability2.
The court held in the case of Donoghue v. Stevenson that less than reasonable care would constitute a fault. However, there should have been a pre-existing duty of care, which should have arisen from the relationship between the parties to the case3.
Subsequently, the concept of fault assumed the status of a legal requirement. The moral characteristics of fault were ignored by courts. Furthermore, the courts adopted an objective approach to the primary requirements of the inquiries into a liability, which became a barrier to the moral considerations inherent in fault. The present situation is that English courts treat fault as a mechanism that has been used to achieve several goals as done by delict or tort. The modern criminal justice system educates citizens, by the imposition of penalties4.
Judicial decisions are dictated, in the main, by precedent. The decision of a higher court has to be followed as precedent in a lower court that is hearing a similar case. For instance, in the UK the Court of Appeal should follow the previous decision of the House of Lords.  ...Download file to see next pages Read More
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