Different kinds of precedent (Just advantages disadvantages)

Question 1

What is judicial precedent (stare decisis)?

Answer 1

Standing by or following decisions in previous, similar cases

Question 2

What are the advantages of judicial precedent?

Answer 2

• Certainty
• Consistency and fairness in the law
• Precision
• Flexibility
• Time-saving

Question 3

What are the disadvantages of judicial precedent?

Answer 3

• Rigidity
• Complexity
• Illogical distinctions
• Slowness of growth

Question 4

Why is certainty an advantage of judicial precedent?

Answer 4

Because the courts follow past decisions, people know what the law is and how it is likely to be applied in their case

Question 5

Why is consistency and fairness in the law an advantage of judicial precedent?

Answer 5

Seen as just and fair that similar cases should be decided in a similar way

Question 6

Why is precision an advantage of judicial precedent?

Answer 6

As the principles of law are set out in actual cases the law becomes very precise; it is well illustrated and gradually builds up through the different variations of facts in the cases that come before the courts

Question 7

Why is flexibility an advantage of judicial precedent?

Answer 7

• The use of distinguishing gives all courts some freedom to avoid decisions and develop law
• There’s room for the law to change as Supreme Court can use the practice statement to overrule cases.
• E.g. R v shivpuri (1986) first use of practice statement in a criminal case, (1972) Herrington first major use of the practice statement in civil law, Knauer v Ministry of Justice (2016)

Question 8

Why is time-saving an advantage of judicial precedent?

Answer 8

Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation

Question 9

Why is rigidity a disadvantage of judicial precedent?

Answer 9

• Lower courts have to follow the decisions of higher courts together with the fact the Court of Appeal has to follow its own past decisions can make the law too inflexible so that bad decisions made in the past may be perpetuated.
• Added problem that so few cases go to the Supreme Court.
• Change in the law will only take place if parties have the courage, persistence, and money to appeal their case

Question 10

Why is complexity a disadvantage of judicial precedent?

Answer 10

• As there are soo many reported cases it’s not easy to find all the relevant case law even with computerised databases.
• Judgements themselves are also often very long with no clear distinction between comments and the reasons for the decision

Question 11

Why is illogical distinctions a disadvantage of judicial precedent?

Answer 11

• The use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ so that some areas of the law has become very complex.
• The differences between some cases may be very small and appear illogical

Question 12

Why is slowness of growth a disadvantage of judicial precedent?

Answer 12

• Judges know some areas of law are unclear or in need of reform; however, they cannot make a decision unless there is case before the courts to be decided.
• This is one of the criticisms of the need for the Court of Appeal to follow its own previous decisions, as only about 50 cases go to the Supreme Court each year.
• There may be a long wait for a suitable case to be appealed as far as the Supreme Court