2A.4.4 Advantages and Disadvantages of Judicial Precedent Flashcards
Advantages of Judicial Precedent
- Certainty
- Consistency and fairness in the law
- Precision
- Flexibility
- Time saving
- Filling gaps
Disadvantages of Judicial Precedent
- Rigidity
- Complexity
- Illogical distinctions
- Slowness of growth
- Uncertainty
How is certainty an advantage of judicial precedent?
Because judges follow past decisions, people know what the law is and how it is likely to be applied in their case.
This allows lawyers to advise clients on the likely outcomes of cases.
It also allows people to operate their businesses knowing that financial and other arrangements they make are recognised by law.
How is consistency and fairness in the law an advantage of judicial precedent?
It is seen as just and fair that similar cases should be decided in a similar way. The law must be consistent in its application if it is to be credible.
How is precision an advantage of judicial precedent?
As the principles of relevant law are set out in actual cases, the law becomes very precise. It is well illustrated, and a body of rules gradually builds up through the different variations of facts in the cases that come before the courts.
How is flexibility an advantage of judicial precedent?
There is room for the law to change with society as the Supreme Court can use the Practice Statement to overrule past cases that may not reflect current trends.
- In BRB v Herrington, the House of Lords considered that there had been considerable social change since the previous precedent was decided in 1929.
How is time saving an advantage of judicial precedent?
When a principle has been established, it can be seen through the whole system of law reporting.
Lawyers are able to safe time and advise their clients that a case with similar facts or principles of law to a precedent is unlikely to be worth taking through the lengthy and costly process of litigation.
How is filling gaps in the law an advantage of judicial precedent?
Where there is no statute law on a topic, such as the occupiers’ liability towards trespassers before 1984, judges are able to fill gaps to ensure that the law is not at a standstill.
How is rigidity a disadvantage of judicial precedent?
The law can be too inflexible and previous bad decisions may be continued because:
- Lower courts have to follow decisions of higher courts
- The Court of Appeal has to follow its own past decisions
Also, as so few cases reach the Supreme Court, change in the law will only take place if parties have the courage, the persistence and the money to appeal their case to the highest court.
How is complexity a disadvantage of judicial precedent?
- Since there are nearly half a million reported cases, it may not be easy to find all the relevant case law, even with computerised databases.
- Court judgements can be very long, with no clear distinction between comments and the reasons for the decision. This makes it difficult in some cases to extract the ratio decidendi.
How is illogical distinctions a disadvantage of judicial precedent?
- The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ so that some areas of the law have become very complex.
- The differences between some cases may be very small and appear illogical.
How is slowness of growth in the law a disadvantage of judicial precedent?
- Judges are well aware that some areas of the law are unclear or in need or reform; however, they cannot make a decision unless a case comes before the courts to be decided.
- Only about 50 cases per year go to the Supreme Court. There amy be a long wait for a suitable case to be appealed as far as the Supreme Court to bring about a change in the law. This is because the Court of Appeal binds itself.
How is uncertainty a disadvantage of judicial precedent?
This can arise when a higher court reverses a decision of a lower court.
* This happened in R v Kingston (1994): the House of Lords reversed the decisions of the Court of Appeal and dismissed the D’s arguments that his involuntary intoxication could be used as a defence.
