Advantages and disadvantages of judicial precedent Flashcards
ADV: Creates certainty in the law
-Precedent is based on principle of ‘stare decisis’ meaning to stand by the decision so the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents.
-E.G Jones v SoSSS refused to overrule Re Dowling to maintain certainty.
-This benefits lawyers, judges and defendants, as certainty allows them to effectively prepare for cases.
-However, this can lead to rigidity in the law and injustices.
ADV: Actually a fairly flexible doctrine
-There are several ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule the law, and any court can distinguish.
-R v Shivpuri was able to overrule Anderton v Ryan, as there was a serious error that needed to be corrected quickly.
-Therefore precedent being flexible is good because bad decisions can be avoided and allows the law to be updated with society.
-creates uncertainty in the law, as it is unclear if a judge will actually keep the same decision, or what they might change the decision to if they are going to change it.
ADV: Can respond to real life situations
-Precedent is based on case law and cases deal with real life situations.
-E.G in R v R husband tried to force his wife to have sex without her consent; society no longer thought this was acceptable, so the court changed law to make marital rape a crime.
-This allows the law to develop with the times and be updated with society.
-However, the ability to create precedents so easily means there are lots of different precedents that can make the law complex and hard to understand over time.
ADV: Allows for judicial creativity
-Courts can distinguish if an existing law doesn’t apply to the current facts, and original precedent allows judges to create a law where there is no previous law at all.
-E.G judges created a brand new area of law (negligence) in the case of Donoghue v Stevenson when contract law would not solve the problem.
-This creativity leads to justice, and can save Parliament the time
of having to make laws to cover new or minor situations.
-However, this does go against separation of powers because it allows judges to make the law despite not being democratically elected.
DISADV: Can be seen as rigid
-Precedent is based on principle of ‘stare decisis’ meaning to stand by the decision so the same decision will always be made by lower courts and higher courts are reluctant to overrule their own precedents.
-E.G Jones v SoSSS refused to overrule Re Dowling to maintain certainty.
-This rigidity can lead to injustices in the law.
-However this benefits lawyers, judges and defendants, as certainty allows them to effectively prepare for cases.
DISADV: Actually not very certain
-There are several ways of avoiding precedent if a bad decision will be made. Higher courts can change and overrule the law, and any court can distinguish.
-R v Shivpuri was able to overrule Anderton v Ryan, as there was a serious error that needed to be corrected quickly.
-By having multiple decisions on similar cases, it becomes hard to predict the outcome, which has a negative effect on lawyers, judges and defendants trying to handle cases.
-However, this flexibility can help avoid injustices in cases where standing by the decision would be unfair.
DISADV: Can be very complex
-There are nearly ½ a million precedents
at the moment and even more get created through distinguishing; can be hard to tell the difference between obiter and ratio due to judgements being written in lengthy prose, making it hard for judges to actually apply the law.
-E.G Re J, the judge could not figure out what the ratio was and so had no idea what decision he was meant to be making.
-This is bad because it defeats the point of precedent; how can you apply the law if you can’t figure out what the law is meant to be?
-However, the fact that it is so easy to make precedent can be positive because it allows the law to respond quickly to real life situations that come up in society.
DISADV: Goes against separation of powers
-Precedent allows judges to make and change laws, when it should only be Parliament who have this power.
-E.G in R v R, judges chose to make marital rape illegal despite Parliament never making a law against this themselves.
-This is a problem because judges are not democratically elected, so judges may not reflect Parliament/society’s wishes when making precedent.
-However, when Parliament have made no law previously, judges have to make an original precedent which can ultimately save Parliament the time of making lots of new laws themselves.
