Disadvantages Of Precedent

Question 1

What are disadvantages of precedent?

Answer 1

1. Rigidity
2. Complexity
3. Illogical distinctions
4. Slowness of growth

Question 2

Why is rigidity a -

Answer 2

Binding precedent makes law too inflexible with bad decisions being perpetuated, especially if it takes long time for suitable case to reach superior courts to change it. Only cases that get to senior courts are parties that have money

Question 3

Why is complexity a -

Answer 3

With hundreds and thousands of cases, it’s difficult to locate relevant case law, even with computer databases, judgements very long with no clear distinction of ratio decidendi or obiter dicta e.g. in Re A (2000) theee judges gave different responses to justify seperation of conjoined twins

Question 4

Why is illogical distinctions a -

Answer 4

Some cases are distinguished in very minor or controversial points. “Hair splitting” can make it overly complex. For R v Wilson (1996) and R v Brown (1991), Defense of consent used in earlier not in latter, arguably bc of sexuality

Question 5

Why is slowness of growth a -

Answer 5

Judges well aware some areas of law or unclear or need reform, but cannot make decisions unless a case usb before courts, unable to reform law on martial rape until R V R (1991)