Question of law

In law, a question of law, also known as a point of law, is a question that must be answered by applying relevant legal principles to interpretation of the law.[1] Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence as well as inferences arising from those facts. Answers to questions of law are generally expressed in terms of broad legal principles and can be applied to many situations rather than be dependent on particular circumstances or factual situations. An answer to a question of law as applied to the particular facts of a case is often referred to as a "conclusion of law."

In several civil law jurisdictions, the highest courts consider questions of fact settled by the lower court and will only consider questions of law. They thus may refer a case back to a lower court to re-apply the law and answer any fact-based evaluations based on their answer on the application of the law. International courts such as the Benelux Court of Justice and the European Court of Justice will only answer questions of law, asked by judges of national courts if they are not certain about the interpretation of the law of multilateral organizations.

While questions of fact are resolved by a trier of fact, which in the common law system is often a jury, questions of law are always resolved by a judge or equivalent. Whereas findings of fact in a common law legal system are rarely overturned by an appellate court, conclusions of law are more readily reconsidered.

Question of fact

In law, a question of fact, also known as a point of fact, is a question that must be answered by reference to facts and evidence as well as inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles. The answer to a question of fact (a "finding of fact") usually depends on particular circumstances or factual situations.[2]

All questions of fact are capable of proof or disproof by reference to a certain standard of proof. Depending on the nature of the matter, the standard of proof may require that a fact be proven to be "more likely than not" (there is barely more evidence for the fact than against, as established by a preponderance of the evidence) or true beyond reasonable doubt.

Answers to questions of fact are determined by a trier of fact such as a jury, or a judge. In many jurisdictions, such as the United Kingdom, appellate courts generally do not consider appeals based on errors of fact (errors in answering a question of fact). Rather, the findings of fact of the first venue are usually given great deference by appellate courts.[3]

The distinction between "law" and "fact" has proved obscure wherever it is employed. For instance, the common law used to require that a plaintiff's complaint in a civil action only state the "facts" of his case, not any "legal conclusions." Unfortunately, no one has ever been able to tell whether the allegation that "on November 9, the defendant negligently ran over the plaintiff with his car at the intersection of State Street and Chestnut Street" is a statement of fact or a legal conclusion. In fact, the distinction between law and fact is just the legal version of the philosophical distinction between "empirical" and "analytical" statements, a distinction on whose existence philosophers have been unable to agree to this day.... we will see that many defendants charged with impossible attempts are not in fact attempting the crime they are charged with attempting. They merely think they are committing a crime.... It would be merely foolish to assert that it is of no interest whatever to know that The Disciples is a forgery. But to the man who has never heard of either Vermeer or van Meegeren and who stands in front of The Disciples admiring it, it can make no difference whether he is told that it is a seventeenth-century Vermeer or a twentieth-century van Meegeren in the style of Vermeer. And when some deny this and argue vehemently that, indeed, it does make a great deal of difference, they are only admitting that they do know something about Vermeer and van Meegeren and the history of art and the value and reputation of certain masters. They are only admitting that they do not judge a work of art on purely aesthetic grounds, but also take into account when it was created, by whom, and how great a reputation it or its creator has.[4]

See also

Notes and references

  1. ^ Proffatt, John (1877). A Treatise on Trial by Jury, Including Questions of Law and Fact (1986 reprint ed.). Buffalo, NY: William S. Hein & Co. ISBN 9780899417073.
  2. ^ "Question of fact". Legal Information Institute. Cornell University Law School. Retrieved 11 November 2014.
  3. ^ Sharma, Riecha; Tacey, Sam. "The Decision is Final: English High Court Rules That There Can Be No Appeal Against Arbitration Awards on Issues of Fact". edwardswildman.com. Edwards Wildman Palmer. Retrieved 11 November 2014.
  4. ^ Katz, Leo (1987). "The Crime That Never Was: a Fake Opinion in Case involving Facts". Bad Acts and Guilt Minds: Conundrums of Criminal Law. Chicago, IL: University of Chicago Press. pp. 276–293. ISBN 9780226425924.
Bar (law)

In law, the bar is the legal profession as an institution. The term is a metonym for the line (or "bar") that separates the parts of a courtroom reserved for spectators and those reserved for participants in a trial such as lawyers.

Canada (AG) v Mossop

Canada (AG) v Mossop, [1993] 1 SCR 554 was the first decision of the Supreme Court of Canada to consider equality rights for gays. The case is also significant as one of Justice L'Heureux-Dube's most famous dissents where she proposes an evolving model of the "family".

Certified question

In the law of the United States, a certified question is a formal request by one court from another court, usually but not always in another jurisdiction, for an opinion on a question of law.

These cases typically arise when the court before which litigation is actually pending is required to decide a matter that turns on the law of another state or jurisdiction. If that other jurisdiction's law is unclear or uncertain, a certified question can then be sent to that jurisdiction's courts to render an opinion on the question of law that arose in the court in which the actual litigation is pending. The courts to whom these questions of law are certified are typically appellate courts or state supreme courts.

Constitution bench (India)

Constitution bench is the name given to the benches of the Supreme Court of India which consist of at least five judges of the court which sit to decide any case “involving a substantial question of law as to the interpretation” of the Constitution of India or "for the purpose of hearing any reference" made by the President of India under Article 143. This provision has been mandated by Article 145 (3) of the Constitution of India. The Chief Justice of India has the power to constitute a Constitution Bench and refer cases to it.Constitution benches have decided many of India’s best-known and most important Supreme Court cases, such as A. K. Gopalan v. State of Madras, Kesavananda Bharati v. State of Kerala (basic structure doctrine) and Ashoka Kumar Thakur v. Union of India (OBC reservations) etc.

Court Martial Appeal Court of Canada

The Court Martial Appeal Court of Canada (CMAC) (French: Cour d'appel de la cour martiale du Canada) hears appeals from Courts-martial of Canada ("courts martial").

In Canada, courts martial are presided over by independent military judges from the office of the Chief Military Judge. They have the jurisdiction to try military personnel, and those civilian personnel that accompany military personnel abroad, for crimes that contravene the Code of Service Discipline and the National Defence Act; which incorporates many of the offences under the Criminal Code and related statutes.

The CMAC was established in 1959 by Parliament under the National Defence Act, to replace the Court Martial Appeal Board. Due to the court's small caseload, justices of the CMAC are cross-appointed from justices of provincial superior courts and the Federal Court and Federal Court of Appeal. Appeals from the CMAC lie with the Supreme Court of Canada. Appeals require leave from the Supreme Court, unless a justice of the CMAC dissents on a question of law, in which case there is an appeal as of right to the Supreme Court.

Doe v. Holy See

Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009), was a lawsuit involving the sovereign immunity status of the Holy See in relation to the Catholic sexual abuse scandal in the United States. The threshold question of law in the case was whether the Foreign Sovereign Immunities Act allows the Holy See, a sovereign state in international law, to be sued for acts of local Catholic clergy.

U.S. District Court Judge Michael Mosman ruled that the Holy See cannot be held liable because there was no relationship of employment in the case. Jeff Anderson, attorney for the plaintiff, said he would appeal the decision. The case was finally dismissed in August 2013.

Family law

Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.

Glover v. United States

Glover v. United States, 531 U.S. 198 (2001), was a United States Supreme Court case decided in 2001. The case dealt with a technical question of law relating to whether a showing of prejudice in incorrect sentencing decisions is required for a correction of that sentence.

Guey Heung Lee v. Johnson

Guey Heung Lee v. Johnson, 404 U.S. 1215 (1971), was a United States Supreme Court case regarding the desegregation of schools in San Francisco.

In 1971, the San Francisco Unified School District attempted to desegregate the school system by reassigning pupils attending segregated schools to other public schools. The School District submitted a comprehensive plan for desegregation which the District Court approved.

Some Chinese parents protested the move, because in the Asian schools the students could learn about their cultural heritage, and they would lose this if they went to public schools.The Court of Appeals for the Ninth Circuit entered a temporary stay pending a hearing in the District Court. Four days later, however, the Court of Appeals vacated that stay sua sponte. The District Court then denied the stay. Thereupon, a different three-judge panel of the Court of Appeals heard oral argument on the motions for a stay and denied those motions.

The Supreme Court too denied the stay, saying

So far as the overriding questions of law are concerned, the decision of the District Court seems well within bounds. It would take some intervening event or some novel question of law to induce me as Circuit Justice to overrule the considered action of my Brethren of the Ninth Circuit.

Jain law

Jain law or Jaina law is the modern interpretation of ancient Jain law that consists of rules for adoption, marriage, succession and death prescribed for the followers of Jainism.

Joinder

In law, a joinder is the joining of two or more legal issues together. Procedurally, a joinder allows multiple issues to be heard in one hearing or trial and is done when the issues or parties involved overlap sufficiently to make the process more efficient or more fair. It helps courts avoid hearing the same facts multiple times or seeing the same parties return to court separately for each of their legal disputes. The term is also used in the realm of contracts to describe the joining of new parties to an existing agreement.

Judiciary Act of 1802

The United States Judiciary Act of 1802 (2 Stat. 156) was a Federal statute, enacted on April 29, 1802, to reorganize the federal court system. It restored some elements of the Judiciary Act of 1801, which had been adopted by the Federalist majority in the previous Congress, but was repealed by the Democratic-Republican majority earlier in 1802.The 1802 Act effectively cancelled the 1801 Act's legally-called-for reduction in the size of the Supreme Court. The 1801 Act had provided that the Court's size would be reduced by one Justice to a court of five, by not filling its next future vacancy. Instead, the 1802 Act restored the Court's full-strength size to six members by referring to its then-present membership, which had been unchanged since the passage of the 1801 Act. This reaffirmed full-strength size of the Court as consisting of six Justices would not be changed again until the addition of a seventh seat by the Seventh Circuit Act of 1807:

Be it enacted by the Senate and House of Representatives of the United Slates of America in Congress assembled, That from and after the passing of this act, the Supreme Court of the United States shall be holden by the justices thereof, or any four of them, at the city of Washington, and shall have one session in each and every year, to commence on the first Monday of February annually, and that if four of the said justices shall not attend within ten days after the time hereby appointed for the commencement of the said session, the business of the said court shall be continued over till the next stated session thereof. (bold added)

The Act restructured the circuit courts into six circuits, and assigned one Supreme Court justice to each circuit. Unlike the 1801 Act, no new circuit judgeships were created, so the justices were faced with having to return to the practice of "riding circuit" to hold court in each district within their circuit, along with the local district judge, during the majority of the year. No circuit courts were created for the judicial districts of Kentucky, Tennessee, Maine, or the territories, although the 1801 Act would have done so.Since the circuit courts were now to consist of only two judges, the Act permitted them to certify to the Supreme Court any question of law on which the two could not agree. Also, the district judge was not permitted to hear appeals of his own decisions, so appeals from the district courts were decided by the circuit justice alone. But the most important part of the Act was the provision that a quorum of only one judge was needed to convene a circuit court. As a result, Supreme Court justices could often rely on district court judges to convene circuit courts. With circuit riding largely optional, Supreme Court justices were no longer saddled with what they had previously felt was a tremendous burden. The Act's flexibility proved crucial to the demise of circuit riding, which essentially disappeared by 1840.

The Act also created additional district courts by dividing the District of North Carolina into the districts of Albemarle, Cape Fear, and Pamptico, and by dividing the District of Tennessee into the Eastern and Western Districts of Tennessee. No new judgeships were created for these courts; however, the district judges in North Carolina and Tennessee had to hold court in each district within their state, and the North Carolina judge also had to sit on the circuit court (which, however, continued to sit for the state as a whole, not in the separate district court districts).

The Act established a United States District Court for the District of Columbia, although this court is not the direct predecessor of today's court bearing the same name.

Legal archaeology

Legal archaeology is an area of legal scholarship "involving detailed historical reconstruction and analysis of important cases." While most legal scholars confine their research to published opinions of court cases, legal archaeologists examine the historical and social context in which a court case was decided. These facts may show what social and cultural forces were at work in a particular case. Professors can use legal archaeology to "sensitize students as to how inequality, specifically with regard to race, gender and class affects what occurs throughout the cases they study." A legal archaeologist might also research biographical material on the judges, attorneys, and parties to a court case. Such information might show whether a judge held particular biases in a case, or if one party had superior legal representation that caused the party to prevail in a case.

Legislation

Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a legislature or other governing body or the process of making it. Before an item of legislation becomes law it may be known as a bill, and may be broadly referred to as "legislation", while it remains under consideration to distinguish it from other business. Legislation can have many purposes: to regulate, to authorize, to outlaw, to provide (funds), to sanction, to grant, to declare or to restrict. It may be contrasted with a non-legislative act which is adopted by an executive or administrative body under the authority of a legislative act or for implementing a legislative act.Under the Westminster system, an item of primary legislation is known as an Act of Parliament after enactment.

Legislation is usually proposed by a member of the legislature (e.g. a member of Congress or Parliament), or by the executive, where upon it is debated by members of the legislature and is often amended before passage. Most large legislatures enact only a small fraction of the bills proposed in a given session. Whether a given bill will be proposed and is generally a matter of the legislative priorities of government.

Legislation is regarded as one of the three main functions of government, which are often distinguished under the doctrine of the separation of powers. Those who have the formal power to create legislation are known as legislators; a judicial branch of government will have the formal power to interpret legislation (see statutory interpretation); the executive branch of government can act only within the powers and limits set by the law.

Private law

Private law is that part of a civil law legal system which is part of the jus commune that involves relationships between individuals, such as the law of contracts or torts (as it is called in the common law), and the law of obligations (as it is called in civil legal systems). It is to be distinguished from public law, which deals with relationships between both natural and artificial persons (i.e., organizations) and the state, including regulatory statutes, penal law and other law that affects the public order. In general terms, private law involves interactions between private individuals, whereas public law involves interrelations between the state and the general population.

Special Leave Petitions in India

Special Leave Petitions in India (SLP) holds a prime place in the Judiciary of India, and has been provided as a "residual power" in the hands of Supreme Court of India to be exercised only in cases when any substantial question of law is involved, or gross injustice has been done. It provides the aggrieved party a special permission to be heard in Apex court in appeal against any judgment or order of any Court/tribunal in the territory of India (except military tribunal and court martial) The Constitution of India under Article 136 vests the Supreme Court of India, the apex court of the country, with a special power to grant special leave, to appeal against any judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in the territory of India. It is to be used in case any substantial constitutional question of law is involved, or gross injustice has been done.

It is discretionary power vested in the Supreme Court of India and the court may in its discretion refuse to grant leave to appeal. The aggrieved party cannot claim special leave to appeal under Article 136 as a right, but it is privilege vested in the Supreme Court of India to grant leave to appeal or not.

Status (law)

Legal status is the position held by something or someone with regard to law. It is a set of privileges, obligations, powers or restrictions that a person or thing has which are encompassed in or declared by legislation.

Statute

A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by legislative bodies; they are distinguished from case law or precedent, which is decided by courts, and regulations issued by government agencies.

Thesavalamai

Thesavalamai is the traditional law of the Sri Lankan Tamil inhabitants Jaffna peninsula, codified by the Dutch during their colonial rule in 1707. The Thesawalamai is a collection of the Customs of the Malabar Inhabitants of the Province of Jaffna (collected by Dissawe Isaak) and given full force by the Regulation of 1806. For Thesawalamai to apply to a person it must be established that he is a Tamil inhabitant of the Northern Province. The Law in its present form applies to most Tamils in northern Sri Lanka. The law is personal in nature thus it applicable mostly for property, inheritance, and marriage.Under this law, not all property could be given away. A person could give away only the tediatettam; i.e., joint property or property acquired by either spouse during the period after married life and or the priests acquiring from such properties. Even of the tediatettam property, the husband cannot alienate the whole property; the wife is entitled to half of it. Those properties inherited from the parents cannot be given away according to one's own wish. There are also cases of old ladies who do not have any children giving their properties to the temple.The landmark case Sivagnanalingam v Suntheralingam has given a new dimension to the tesawalamai law as it redefined its applicability.

The judgement expanded the applicability of thesawalamai by settling the following points.

The meaning of ordinary words is question of fact but the meaning to be attributed to enacted words is a question of law: The meaning of the expression "inhabitant of the Province of Jaffna" is a question of law.

Inhabitant means permanent inhabitant - One who has his permanent home in Jaffna in the nature of a domicile in the Northern ProvinceThere can only be a Sri Lankan domicile and to that extent the term differs from the expression inhabitancy. Yet the idea of permanent home underlies both concepts and rules for identifying a person's domicile can be applied to discover whether a family has a permanent home in the Northern Province and hence its members are inhabitants in that Province.

There is a strong presumption in favour of the continuance of a domicile of originThere can only be a Sri Lankan domicile and to that extent the term differs from the expression inhabitancy. Yet the idea of permanent home underlies both concepts and rules for identifying a person's domicile can be applied to discover whether a family has a permanent home in the Northern Province and hence its members are inhabitants in that Province.

The Thesawalamai is the personal law of the Tamil inhabitants of the Northern Province. It applies to them wherever they are and to their movable and immovable property wherever situated in Sri Lanka.

For the purpose of deciding on the rights of inheritance to the estate of a deceased husband, the time of his death is the relevant time and not the time of marriage.

Certain principles of Thesawalamai law are in conflict with international standards relating to equality, such as CEDAW.

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