Questions and Notes on Precedents and Other Sources of Law -1

Questions and Notes on Precedents and Other Sources of Law -1

1.      Germany, France and Italy judicial precedent has only instructive value and not authoritative value.

2.      Who said “It is an established rule to abide by the former precedents where the same points come again”?

Blackstone

3.      Who said “Adherence to precedent should be the rule and not an exception”?

Cardozo

4.      Who said “Precedents are those judicial pronouncements of the court which carry with them certain authority having a binding force”?

Keeton

5.      Differentiate between the deductive and inductive method of  judicial decision

Deductive method is applicable when the legal rule applicable to any particular case is fixed and certain and the Judge is required to apply this rule as justice according to the law without any reference to his personal view.

Inductive method involves reasoning inductively and in the process the Judge is bound by the decisions of the courts higher than his own Court.

6.      Who wrote the book `A Textbook on Jurisprudence`?

Paton

7.      Who wrote the book `The Nature of the Judicial Process`?

Cardozo

8.      In which cases it was held by the Supreme Court that it is not bound by its own decisions?

a.      Bengal Immunity Case

b.      AR Antulay v RS Nayak

9.      In which case the Supreme Court held that `what is applicable is the ratio decidendi`?

Somwati v State of Punjab

10.  In which case the Supreme Court held that `the judgments of Privy Council are not binding on the Supreme Court`?

Srinivas v Narayan

11.  Who said that “the function of judge is to discover in the existing law the principles that govern the facts of individual cases, hence they are law finders and not law makers”?

Blackstone

12.  Who wrote the book `Juris dicere et non just dare`?

Blackstone

13.  Who said “There is in fact no such thing as Judge made law for the Judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has not previously been authoritatively laid down that such law is applicable”?

Lord Esher

14.  Who calls the Declaratory Theory as hypocritical and a childish fiction employed by common law judges that law is not made by them?

Austin

15.  Who said “Precedents are merely interpretive of the existing law; they do not create new law”?

Carter

16.  Who wrote the book `Law its Origin Growth and Functions`?

Carter

17.  What are the circumstances in which binding force of judicial precedents either partially of totally are destroyed?

a.      If the precedent is rendered in ignorance of any statute or any other rule having force of statute.

b.      If it is inconsistent with the decision of a higher court.

c.       Court is not bound by its earlier decisions which are conflicting with each other.

d.      A sub silentio judgment in which the point of law involved is not fully argued or not perceived by the court.

e.      A dissenting note might in future lead to overruling or the precedent.

f.        Decisions founded on misconceived principles or in conflict with the fundamental principles of law lose their binding force totally.

g.      A decision ceases to be binding if the statute inconsistent with it is subsequently enacted. “Cessante ratione legis cessat ipsa lex”

18.  Who said “Ratio decidendi is a rule of law expressly or impliedly treated by the Judge as a necessary step in reaching his conclusion”?

Rupert and Cross

19.  Who said “Ratio decidendi roughly denotes the law applied by and acted upon by the Court or the rule which the court regards as governing the case”?

Salmond

20.  Who wrote the books `The Ratio Decidendi of a case, Essays in Jurisprudence and Common Law`?

Goodhart

21.  Who wrote the book `Precedent in English Law`?

Rupert and Cross

22.  Who defined obiter dicta as “A conclusion based on a fact the existence of which has not been determined by the court”?

Goodhart

23.  Which Article of Constitution embodies Stare Decisis?

Article 41

24.  In which case did Justice Cardozo determined the principle of `prospective overruling`?

Sunbust case

25.  Who said that law based on case law is incomplete because the Judge takes into consideration only those facts which are involved in the case before him?

Pollock

26.  Who was of the opinion that the judicial precedent is arbitrary in nature, as judges are answerable to no one?

Benthem

27.  Who said “Precedent in Common Law system served as an instrument of evolution according to the changing needs of society and demands of justice”?

Lord Denning

28.  Who said “It is the Judges that make the common law, just as a man laws for his dog”?

Benthem

29.  Who wrote the book named `Jurisprudence`?

Dias and Hughes

30.  What is the Blackstonian view/Declaratory Theory?

Judges do not make law; they just declare what has already been law.

31.  Who wrote the code containing Hindu personal laws?

Halhead. The Gentoo Code.

32.  Who has defined equity as “That portion of remedial justice which is exclusively administered by the Court of Equity as contra distinguished from the portion of remedial justice which is exclusively administered by the Court of common law”?

Story

33.  Who said “Equity is a set of rules which were in existence side by side with the original law and were based on well established principles of morality, natural justice, honesty and uprightness”?

Henry Maine

34.  Who hold that many legal systems give discretionary powers on Judges so that the rigidity and deficiencies of the prevailing law could be mitigated, called equity?

Allen

35.  Who did not recognize equity as an independent source of law, as it accounts for supplementing and reshaping the existing common law rather than originating it?

Salmomd

Questions and Notes on Precedents and Other Sources of Law -1

 

All rights reserved with Lex Luminati (c) Copyright 2017