Law and Regulatory Framework of justice

This rule is simply interpreting a statute with the end view of suppressing a mischief in accordance with the true intent of the Parliament. This rule traces its origin from the Heydon’s case. It examines “the law before the Act was passed and what the Act was intended to amend. The judges interpret this Act to cover any defect” (AS Law, Op. Cit. ) to suppress the mischief. Thus, in Smith v. Hughes (1960), a prostitute solicited from inside a building to the street.

The court held that a private building was a “street or public place” for purposes of the Act to prevent the mischief of harlotry. However, this rule applies only when the statute is ambiguous. As per Charles’ case, the mischief rule would have me decide in his favor. It is clear that in passing the Act the Parliament intended to suppress the mischief of unsafe and polluted city space and not disabled persons from entering city centres with motorized wheelchairs. What Rule Shall Apply? Now as to the question of what of the three rules shall apply, I am constrained to choose the mischief rule.

First, the literal rule can create absurd results and too much reliance on the plain and ordinary language of statutes may frustrate the ends of justice. Second, the golden rule may only modify the literal meaning of a statute and nothing further, sometimes even frustrating the true wishes of the Parliament. On the contrary, the mischief rule is founded on exploring the will of the Parliament, the spirit of which is to suppress a preconceived mischief. After all and most importantly, “it is not the letter that killeth but the spirit that giveth life.

” PART B Ratio Decidendi and Obiter Dictum Ratio decidendi is defined as “the legal reasons of a judge in reaching a finding in a case brought before the court” (Gillams Solicitors (2007), http://www. gillhams. com/dictionary/243. cfm). In simple terms, it is the rationale or reason of the decision or that upon which the judge’s decision is founded. According to Gillhams the ratio decidendi is binding on lower courts and stands in contrast to obiter dicta, the latter apparently not binding on lower courts but a mere statement of things by the way.

Gillhams further clarifies that obiter dicta are “comments made by a judge in a decision that do not form part of the legal reasoning in reaching the decision. ” Thus, the basis of all the legal points establishing the court’s decision in deciding a dispute between the parties or all legal arguments which forms part of a judicial conclusion is essentially the ratio decidendi of a case. All other pronouncements not relevant to the decision are obiter dicta. The value of ratio decidendi in law cannot be ignored. In fact, it is the ratio decidendi which may be the basis of a precedent in the future.

A precedent, a common law feature, is said to be established when a final decision has been rendered regarding a judicially contestable issue. Where “a set of circumstances occur in the future that are essentially the same” (Gillams, Op. Cit. ) with a previous decision, the same decision shall be applied on the former. According UK Law and Safety, the concept of judicial precedence brings consistency to the legal system by allowing the rendering of decisions based on legal theories established as a custom with slight deviations owing only to a change in circumstances.

This concept of judicial precedence is in consonance with the principle of stare decisis. Gillams describes this as the “principle in common law jurisdictions that previously made decisions - precedents - are binding. ” This principle apparently applies to the holding of a court (the ratio decidendi) and not to mere comments or opinions of the court (obiter dicta).

List of References

AS Law: Sources of Law and Law Making, online guide, viewed 20 December 2007,