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Legal Doctrines And Principles
A legal doctrine is a framework, set of rules, procedural steps, or test, often established through precedent in the common law, through which judgments can be determined in a given legal case. For example, a doctrine comes about when a judge makes a ruling where a process is outlined and applied, and allows for it to be equally applied to like cases. When enough judges make use of the process, it may become established as the '' de facto'' method of deciding like situations. Examples Examples of legal doctrines include: See also * Constitutionalism * Constitutional economics * Concept * Rule according to higher law * Legal fiction * Legal precedent * '' Cogitationis poenam nemo patitur'' * ''Ex aequo et bono ''Ex aequo et bono'' (Latin for "according to the right and good" or "from equity and conscience") is a Latin phrase that is used as a legal term of art. In the context of arbitration, it refers to the power of arbitrators to dispense with appli ...'' Reference ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Procedural Law
Procedural law, adjective law, in some jurisdictions referred to as remedial law, or rules of court, comprises the rules by which a court hears and determines what happens in civil procedure, civil, lawsuit, criminal procedure, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process (in the U.S.) or fundamental justice (in other common law countries) to all cases that come before a court. Substantive law, which refers to the actual claim (legal), claim and defense (legal), defense whose validity is tested through the procedures of procedural law, is different from procedural law. In the context of procedural law, procedural rights may also refer not exhaustively to Right to Information Act, 2005, rights to information, access to justice, and right to counsel, rights to public participation, and right to confront accusers, as well as the basic presumption of innocence (meaning the prosecution regularly must meet th ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Vicarious Liability
Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, '' respondeat superior'', the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability, or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee. Employers' liability Employers are vicariously liable, under the '' respondeat superior'' doctrine, for negligent acts or omi ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Ex Aequo Et Bono
''Ex aequo et bono'' (Latin for "according to the right and good" or "from equity and conscience") is a Latin phrase that is used as a legal term of art. In the context of arbitration, it refers to the power of arbitrators to dispense with application of the law, if appropriate, and decide solely on what they consider to be fair and equitable in the case at hand. However, a decision ''ex aequo et bono'' is distinguished from a decision on the basis of equity (''equity intra legem'') and even tribunals with ''ex aequo et bono'' powers generally consider the law too. "Whereas an authorisation to decide a question ''ex aequo et bono'' is an authorisation to decide without deference to the rules of law, an authorisation to decide on a basis of equity does not dispense the judge from giving a decision based upon law, even though the law be modified". Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court may decide cases ''ex aequo et bono'' ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Cogitationis Poenam Nemo Patitur
The Latin expression ''cogitationis poenam nemo patitur'' is used in the field of criminal law to express that only a conduct, and not a simple thought, can constitute a crime. This phrase originally appeared in the "Institutions" of the jurist Ulpian (170-228). Later, it appeared in the Digest, a compilation of Roman legal texts carried out by order of the Byzantine emperor Justinian in the sixth century. Its translation would be "no one can be punished for their thoughts". According to this, thinking about stealing something is not punishable, while committing a robbery is. This principle of Roman law assumes that no thought or desire of a human being can be a criminal, until this manifestation of thought or desire is externalized, causing unjust conduct that causes damage to a protected legal asset. [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Legal Precedent
Precedent is a judicial decision that serves as an authority for courts when deciding subsequent identical or similar cases. Fundamental to common law legal systems, precedent operates under the principle of ''stare decisis'' ("to stand by things decided"), where past judicial decisions serve as case law to guide future rulings, thus promoting consistency and predictability. Precedent is a defining feature that sets common law systems apart from civil law systems. In common law, precedent can either be something courts must follow (binding) or something they can consider but do not have to follow (persuasive). Civil law systems, in contrast, are characterized by comprehensive codes and detailed statutes, with no emphasis on precedent, and where judges primarily focus on fact-finding and applying codified law. Courts in common law systems rely heavily on case law, which refers to the collection of precedents and legal principles established by previous judicial decisions on s ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Legal Fiction
A legal fiction is a construct used in the law where a thing is taken to be true, which is not in fact true, in order to achieve an outcome. Legal fictions can be employed by the courts or found in legislation. Legal fictions are different from Presumption, legal presumptions which assume a certain state of facts until the opposite is proved, such as the presumption of legitimacy. The term ''legal fiction'' is sometimes used in a pejorative way. Jeremy Bentham was a famous historical critic of legal fictions. Proponents of legal fictions, particularly of their use historically, identify legal fictions as "scaffolding around a building under construction". Common law examples Adoption Adoption, Child adoption is a legal fiction in that the adoptive parents become the legal parents, notwithstanding the lack of a biological relationship. Once an order or judgment of adoption is entered, the biological parents become legal strangers to the child, legally no longer related nor with a ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Rule According To Higher Law
The rule according to a higher law is a philosophical concept that no law may be enforced by the government unless it conforms with certain universal principles (written or unwritten) of fairness, morality, and justice. Thus, ''the rule according to a higher law'' may serve as a practical legal criterion to qualify the instances of political or economical decision-making, when a government, even though acting in conformity with clearly defined and properly enacted law, still produces results which many observers find unfair or unjust. Doctrine The idea of a law of ultimate justice over and above the momentary law of the state—a higher law—was first introduced into post-Roman Europe by the Canon law (Catholic Church), Catholic canon law jurists. "Higher law" can be interpreted in this context as the divine law, divine or natural law or basic legal values, established in the international law—the choice depending on the viewpoint; no matter the source, it is a law above the l ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Concept
A concept is an abstract idea that serves as a foundation for more concrete principles, thoughts, and beliefs. Concepts play an important role in all aspects of cognition. As such, concepts are studied within such disciplines as linguistics, psychology, and philosophy, and these disciplines are interested in the logical and psychological structure of concepts, and how they are put together to form thoughts and sentences. The study of concepts has served as an important flagship of an emerging interdisciplinary approach, cognitive science. In contemporary philosophy, three understandings of a concept prevail: * mental representations, such that a concept is an entity that exists in the mind (a mental object) * abilities peculiar to cognitive agents (mental states) * Fregean senses, abstract objects rather than a mental object or a mental state Concepts are classified into a hierarchy, higher levels of which are termed "superordinate" and lower levels termed "subordinate". ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Constitutional Economics
Constitutional economics is a research program in economics and constitutionalism that has been described as explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the choices and activities of economic and political agents". This extends beyond the definition of "the economic analysis of constitutional law" and is distinct from explaining the choices of economic and political agents within those rules, a subject of orthodox economics. Instead, constitutional economics takes into account the impacts of political economic decisions as opposed to limiting its analysis to economic relationships as functions of the dynamics of distribution of marketable goods and services. Constitutional economics was pioneered by the work of James M. Buchanan. He argued that "The political economist who seeks to offer normative advice, must, of necessity, concentrate on the process or structure within which political decisions are observed to be made. Ex ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Constitutionalism
Constitutionalism is "a compound of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law". Political organizations are constitutional to the extent that they "contain institutionalized mechanisms of power control for the protection of the interests and liberties of the citizenry, including those that may be in the minority". As described by political scientist and constitutional scholar David Fellman: Definition Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper captured this aspect of the term in noting, "Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to 'consent' and certain other rights, freedoms, and privileges. Used prescriptively, its meaning incorporates those features of government se ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Tipsy Coachman
The Tipsy Coachman doctrine is a rule of law that upholds in a higher court a correct conclusion, despite flawed reasoning by the judge in a lower court. In other words, the lower judgment was right but for the wrong reason. The colorful "tipsy coachman" label comes from a 19th-century Georgia case, ''Lee v. Porter'', 63 Ga 345, 346 (1879), in which the Georgia Supreme Court, noting that the "human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it", quoted from Oliver Goldsmith's ''Retaliation: A Poem'' written in 1774: The Florida Supreme Court explained the doctrine in a 2002 appeal from a second-degree murder conviction: {{quote, We start with the proposition that generally, if a claim is not raised in the rialcourt, it will not be considered on appeal. However, notwithstanding this principle, in some circumstances, even though a trial court A trial court or court of first instance is a court hav ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
Common Purpose
The doctrine of common purpose, common design, joint enterprise, joint criminal enterprise or parasitic accessory liability is a common law legal doctrine that imputes criminal liability to the participants in a criminal enterprise for all reasonable results from that enterprise. The common purpose doctrine was established in English law, and later adopted in other common-law jurisdictions including Scotland, Ireland, Australia, Trinidad and Tobago, the Solomon Islands, Texas, the International Criminal Court, and the International Criminal Tribunal for the former Yugoslavia. Common design also applies in the law of tort. It is a different legal test from that which applies in the criminal law. The difference between common designs in the criminal law and the civil law was illustrated in ''NCB v Gamble'' 9591 QB 11 at 23, by Devlin LJ: The difference applies in US law as well. The United States Supreme Court reached the same conclusion in ''Sony Corporation of America v Un ... [...More Info...] [...Related Items...] OR: [Wikipedia] [Google] [Baidu] |
