20 - Case Law

Question 1

What is Case Law?

Answer 1

Case law may be defined as:
‘the establishment of law made by judicial decision based on the application of customary rules of law as they may apply to new cases as they arise’.

Difficulties can arise when determining law in a particular judgment
because case law is flexible and can reflect societal change.

Question 2

What is Precedent?

Answer 2

A Precedent, as the word suggests, means that something is based upon that which has gone before. In the Criminal Justice System a precedent is usually a legal case which has set a rule which other similar cases must follow.

A commonly used example of judicial precedent is that of ‘Negligence’.

Question 3

Case Law and Judicial Precedent – ‘stare decisis’

Answer 3

When deciding a case, Judges have to consider decisions formerly made in similar circumstances- Into this equation, however, comes the work of the hierarchy of the Courts themselves.

Consequently, Judges are bound to follow higher courts in
consideration of their judgment.

Question 4

In some circumstances however a Judge may avoid precedent…

Answer 4

Distinguishing: If a Judge finds a significant difference between the material facts of the cases he can depart from the precedent set.

Reversing: A Superior Court may change the decisions made in an inferior court in the same case.

Overruling: A Superior Court may change the decision of an inferior court in a different case.

Question 5

There are obvious advantages and disadvantages of such a system…Advantages

Answer 5

Certainty
Predictability  
Saves Time & Money
Consistency
Fair- Cases treated alike

Question 6

There are obvious advantages and disadvantages of such a system…Disadvantages

Answer 6

Rigid  
Leads to legal stagnation  
Encourages judicial laziness  
Stifles judicial creativity
Expensive to appeal to higher court to change precedent