Describe The Adavabrages And Disadvantages Of Judicial Precedent Flashcards
What is a first advantage of judicial precedent in relation to flexibility?
It provides judges with the flexibility to update the law through methods of avoiding precedent such as overruling and distinguishing.
The House of Lords 1966 Practice Statement allows the Supreme Court to overrule its own previous decisions and make new law ‘where it appears right to do so’, as in British Railways Board v Herrington, overruling Addie v Dumbreck.
What is a disadvantage of judicial precedent in relation to illogical decisions
It can lead to illogical decisions and therefore uncertainty in the law.
The use of distinguishing can lead to ‘hair-splitting’, as seen in Merritt v Merritt where the judge avoided the binding precedent in Balfour v Balfour.
What is a second advantage of judicial precedent in terms of certainty?
It promotes certainty in the law through elements such as the court hierarchy and ratio decidendi.
Precedent means that people know what the law is and how it is likely to be applied in their case, allowing lawyers to advise clients confidently.
What is a second disadvantage of judicial precedent in terms of structure and pace
Judicial precedent is too rigid and slow, as the rigid court hierarchy and binding precedent mean that case law is not flexible and so bad decisions are made in the past may be repeated.
This means that bad decisions made in the past may persist.
What is a third advantage of case law?
Case law made by judges is precise and well illustrated, gradually building up as cases come before the courts.
How is the quality of case law described?
It is of very high quality as it is developed over many years by legal experts.
Can you provide examples of case law that illustrate its development?
Examples include the law on negligence in cases such as Donoghue v Stevenson and Caparo v Dickman, and the different elements of Rylands v Fletcher.
What is a disadvantage of judicial precedent in relation to complexity?
The complexity of judicial precedent makes it difficult to find and understand relevant case law.
How many reported cases exist?
There are over 500,000 reported cases.
What is a challenge with judicial judgments?
Judgments are often very long with no clear distinction between ratio decidendi and obiter dicta statements.
What is a fourth advantage of judicial precedent?
It saves time and money as similar cases are unlikely to go to court due to predictable decisions.
How does judicial precedent benefit lawyers?
Lawyers can advise their clients with certainty and avoid long and expensive court cases.
What is a further disadvantage of judicial precedent?
Judicial precedent is seen as undemocratic as it allows unelected judges to make the law.
What is the principle of parliamentary sovereignty?
It holds that judges should not make the law but apply the law given to them by Parliament.
Can you provide an example of a controversial moral issue related to judicial precedent?
An example is the law on marital rape, which was made illegal in R v R.
How do judges justify their role in making law?
Judges argue they are adapting existing legal rules to fit changing social conditions.
Give an example where it took time for the law to change in relation to marital rape
Example:It took until 1991 to outlaw marital rape in R v R.
