Lesson 2: Example of Judicial Review

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NAME OF THE LECTURER: 

OTIENO DENIS OUMA

PROFESSION: ICT & ENIGINEERING LECTURER

UNIT: TENDERING ESTIMATION

LESSON 2

TOPIC: LAW

EXPECTATIONS FROM THE STUDENTS:

By the end of the lesson, the trainees should be able


to;

a)explain sources of law

b)explain law of contract

c)explain law of contract

Example of Judicial Review

An example of judicial review is set forth in Texas v. Johnson,


491 U.S. 397 (1989). In Johnson, the US Supreme Court ruled
that burning a flag is protected self-expression under the First
Amendment to the US Constitution. Thus the Court reversed
the defendant’s conviction under a Texas statute that
criminalized the desecration of a venerated object. Note
how Johnson not only invalidates a state statute as being
inferior to the US Constitution but also changes the US
Constitution by adding flag burning to the First Amendment’s
protection of speech.

Other Sources
There are a number of other sources of law that may be given
greater or lesser weight in a particular country:
 writings of legal scholars - in civil law jurisdictions,
academic writings interpreting the constitution or
legislation have considerable influence on decisions of the
courts;
 edicts from a king/ ruler;
 in the case of certain Islamic countries, "Sharia law" in the
form of religious books and edicts from religious
groupings.

What Is Common Law?


Common law is a body of unwritten laws based on legal
precedents established by the courts. Common law influences
the decision-making process in unusual cases where the
outcome cannot be determined based on existing statutes or
written rules of law. The U.S. common-law system evolved from
a British tradition that spread to North America during the 17th-
and 18th-century colonial period. Common law is also practiced
in Australia, Canada, Hong Kong, India, New Zealand, and the
United Kingdom.

KEY TAKEAWAYS
 Common law, also known as case law, is a body of unwritten laws
based on legal precedents established by the courts.
 Common law draws from institutionalized opinions and interpretations
from judicial authorities and public juries.
 Common laws sometimes prove the inspiration for new legislation to be
enacted.
Understanding Common Law
A precedent, known as stare decisis, is a history of judicial decisions which
form the basis of evaluation for future cases. Common law, also known as
case law, relies on detailed records of similar situations and statutes because
there is no official legal code that can apply to a case at hand.

The judge presiding over a case determines which precedents apply to that
particular case. The example set by higher courts is binding on cases tried in
lower courts. This system promotes stability and consistency in the U.S. legal
justice system. However, lower courts can choose to modify or deviate from
precedents if they are outdated or if the current case is substantially different
from the precedent case. Lower courts can also choose to overturn the
precedent, but this rarely occurs.
Common Law vs. Civil Law
Civil law is a comprehensive, codified set of legal statutes created by
legislators. A civil system clearly defines the cases that can be brought to
court, the procedures for handling claims, and the punishment for an offense.
Judicial authorities use the conditions in the applicable civil code to evaluate
the facts of each case and make legislative decisions. While civil law is
regularly updated, the goal of standardized codes is to create order and
reduce biased systems in which laws are applied differently from case to case.

Common law draws from institutionalized opinions and interpretations from


judicial authorities and public juries. Similar to civil law, the goal of common
law is to establish consistent outcomes by applying the same standards of
interpretation. In some instances, precedent depends on the case-by-case
traditions of individual jurisdictions. As a result, elements of common law may
differ between districts.

Special Considerations
As judges present the precedents which apply to a case, they can significantly
influence the criteria that a jury uses to interpret a case. Historically, the
traditions of common law have led to unfair marginalization or
disempowerment of certain groups. Whether they are outdated or biased, past
decisions continue to shape future rulings until societal changes prompt a
judicial body to overturn the precedent.

This system makes it difficult for marginalized parties to pursue favorable


rulings until popular thought or civil legislation changes the interpretation of
common law. Feminists in the 19th and early 20th centuries who fought for
women's rights often faced such difficulties. For example, in England, common
law as late as the 1970s held that, when couples divorced, fathers—rather
than mothers—were entitled to custody of the children, a bias that in effect
kept women trapped in marriages.

Example of Common Law


From time to time, common law has furnished the basis for new legislation to
be written. For example, the U.K. has long had a common law offense of
"outraging public decency." In the last decade, the authorities have used this
ancient common law to prosecute a new intrusive activity called upskirting: the
practice of sticking a camera in between a person's legs, without their consent
or knowledge, to take a photo or video of their private parts for sexual
gratification or to humiliate or distress. In February 2019, the U.K. Parliament
passed the Voyeurism (Offences) Act that officially makes upskirting a crime,
punishable by up to two years in prison and the possibility of placing a
convicted individual on the sex offenders register.
Understanding Common Law
A precedent, known as stare decisis, is a history of judicial decisions which
form the basis of evaluation for future cases. Common law, also known as
case law, relies on detailed records of similar situations and statutes because
there is no official legal code that can apply to a case at hand.

The judge presiding over a case determines which precedents apply to that
particular case. The example set by higher courts is binding on cases tried in
lower courts. This system promotes stability and consistency in the U.S. legal
justice system. However, lower courts can choose to modify or deviate from
precedents if they are outdated or if the current case is substantially different
from the precedent case. Lower courts can also choose to overturn the
precedent, but this rarely occurs.

Common Law vs. Civil Law


Civil law is a comprehensive, codified set of legal statutes created by
legislators. A civil system clearly defines the cases that can be brought to
court, the procedures for handling claims, and the punishment for an offense.
Judicial authorities use the conditions in the applicable civil code to evaluate
the facts of each case and make legislative decisions. While civil law is
regularly updated, the goal of standardized codes is to create order and
reduce biased systems in which laws are applied differently from case to case.

Common law draws from institutionalized opinions and interpretations from


judicial authorities and public juries. Similar to civil law, the goal of common
law is to establish consistent outcomes by applying the same standards of
interpretation. In some instances, precedent depends on the case-by-case
traditions of individual jurisdictions. As a result, elements of common law may
differ between districts.

Special Considerations
As judges present the precedents which apply to a case, they can significantly
influence the criteria that a jury uses to interpret a case. Historically, the
traditions of common law have led to unfair marginalization or
disempowerment of certain groups. Whether they are outdated or biased, past
decisions continue to shape future rulings until societal changes prompt a
judicial body to overturn the precedent.

This system makes it difficult for marginalized parties to pursue favorable


rulings until popular thought or civil legislation changes the interpretation of
common law. Feminists in the 19th and early 20th centuries who fought for
women's rights often faced such difficulties. For example, in England, common
law as late as the 1970s held that, when couples divorced, fathers—rather
than mothers—were entitled to custody of the children, a bias that in effect
kept women trapped in marriages.
Example of Common Law
From time to time, common law has furnished the basis for new legislation to
be written. For example, the U.K. has long had a common law offense of
"outraging public decency." In the last decade, the authorities have used this
ancient common law to prosecute a new intrusive activity called upskirting: the
practice of sticking a camera in between a person's legs, without their consent
or knowledge, to take a photo or video of their private parts for sexual
gratification or to humiliate or distress. In February 2019, the U.K. Parliament
passed the Voyeurism (Offences) Act that officially makes upskirting a crime,
punishable by up to two years in prison and the possibility of placing a
convicted individual on the sex offenders register.

ASSIGNMENT

1. state and explain the sources of law

2.explain law of tort

3. explain the law of contract

LINKS
1. https://www.lawteacher.net/free-law-essays/equity-law/
equity-modern-source-of-law-0833.php
2. http://kenyalaw.org/kl/fileadmin/pdfdownloads/Acts/
LawofContractAct_Cap23.pdf

END OF LESSON 2

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