Disadvantages of JP Flashcards
Judicial precedent is a very undemocratic form of law-making
-Example
- The role of the judge, according to Montesquieu’s theory of Separation of Powers, is to apply the law.
- For example, Donoghue v Stevenson the courts created a brand new area of law, and found D liable using the test that they had just created
Judicial precedent is a very undemocratic form of law-making
- Explanation
JP means that by making decisions that become law, judges are creating law which is the role of parliament.
Judicial precedent is a very undemocratic form of law-making
-Why is this a disadvantage
- It gives too much power to judges who are not elected by the public unlike MPs in parliament who are elected to represent society.
- Judges are often considered to be out of touch with society due to age, class, gender, this could lead to unjust and prejudicial verdicts.
Binding precedents can make the law rigid.
-Example
This can be seen in Knuller v DPP in which adverts for homosexual men looking for sex was held to be corrupting public morals based on the precedent set in Shaw v DPP.
Binding precedents can make the law rigid.
-Explanation
As Courts are bound by the decision of higher courts, so all lower courts must follow the decision even if it seen as harsh or wrong.
Binding precedents can make the law rigid.
-Why is this a disadvantage?
- This could lead to unjust or absurd outcomes, as judges are restricted, and must follow the past precedent even if they disagree with the outcome.
- Absurd outcomes could affect public faith in the system.
The retrospective nature of judicial precedent makes it harsh.
Example:
R v R. At the time of the offence, rape within marriage did not exist. (this was not a crime). When it later went to court, the HofL ruled a husband no longer had the right to have sex with his wife regardless of her consent.
He was guilty of rape even though at the actual time of the incident, this was not a crime.
The retrospective nature of judicial precedent makes it harsh.
-Explanation
When a party does something and is later taken to court because of it, the decision made by the judge applies back to when the incident occurred.
The retrospective nature of judicial precedent makes it harsh.
-Why is this a disadvantage?
This means D could be guilty of a crime before that crime exists, which is unfair
Judicial precedent, particularly original precedent, creates uncertainty for parties as there is no precedent to cover the situation.
-Example
- This can be seen in Bland where he had been in PVS for three and a half years, following the Hillsborough disaster. The HofL granted permission to withdraw support, knowing he would die.
- In Re A the parents refused to allow the doctors to separate their conjoined twins knowing one would die. The CofA made the difficult decision in this unique case that they were to be separated.
Judicial precedent, particularly original precedent, creates uncertainty for parties as there is no precedent to cover the situation.
-Explanation
Parties do not know their legal position until a final decision is made by the judge.
Judicial precedent, particularly original precedent, creates uncertainty for parties as there is no precedent to cover the situation.
-Why is this a disadvantage?
As law is being made in that case, it is difficult for lawyers to predict the outcome of cases and advise their clients.
Being able to avoid binding precedent creates inconsistency
-Example
- In Merritt v Merritt as the agreement was between a husband and wife who were separated, their agreement was legally binding and therefore avoided the decision in Balfour v Balfour where the agreement was not legally binding. These two results are inconsistent.
- Also in Brown consent was not available for ABH as it was for sexual gratification, this is not consistent with the later case of Wilson where the judge allowed consent to be a defence for ABH, because the couple were married.
Being able to avoid binding precedent creates inconsistency
-Explanation
-The reasons for avoiding are too vague, as a judge merely needs to distinguish between minute case facts in order to avoid precedent. This gives them a very wide scope.
Being able to avoid binding precedent creates inconsistency
-Why is this a disadvantage?
- As the law can be changed quickly, it leaves parties not knowing where they stand.
- Inconsistent verdicts can seem unfair, and so the public will have less faith in the system.
