evaluation of judicial precendent-allexplinationshaveexamples

Question 1

advantages -5

Answer 1

certainty in the law
flexibility for some judges
consistency between cases
saves judges time
allows original precedents to be set

Question 2

what does it mean by certainty in the law
case

Answer 2

as judges are required to follow decisions made by previous judges this means lawyers can advise clients on outcome of case. r v howe sets a binding precedent regarding duress-future cases judges know that duress cant be used as a defense to murder

Question 3

certainty in the law counter arguement

Answer 3

makes the law too rigid and doesnt easily allow flexibility

Question 4

flexibility for some judges explination
case

Answer 4

some situtaions such as supreme/ court of appeal being able to overrule themselves- young v bristol aeroplane 1966- exceptions were given

Question 5

flexibility for some judges counter arguement

Answer 5

not available for every case and will usually not reach the supreme court for a precedent to be overruled

Question 6

consistency between cases explination
case

Answer 6

existence of binding precedents ensure all cases with similar facts are treated equally. knuller v dpp followed decision of shaw v dpp to ensure similar siturations are treated in the same way

Question 7

consistency between cases counter arguement

Answer 7

depends on biases of judges as many would see knuller and shaw as different

Question 8

saves judges time explination
case

Answer 8

can make clear statements about cases and how they can dealt with in the future saving time and money as then similar cases can be decided in lower courts. sweet v parsely tells us what the outcome of similar cases would be like

Question 9

counter arguement for saves time for judges

Answer 9

some precedenrs are overruled quicky so this doesnt always apply

Question 10

allows original precedent to be set
case

Answer 10

where there is an area of law with no legal huidance, a judge can fill the gap in this law.more likely to happen with change in technology and science. donoghue v stevenson allowed the nmeighbourhood principle to be created

Question 11

counter arguement for allows orginal precedent to be set
case

Answer 11

undemocratic as judges shouldnt be able to make these laws and parliament should be forced to do this instead or that judges will be bound to that once decision like schwepps later that day AT&E same sitch but bound to previous decision

Question 12

what are the disadvantages of judicial precedent- 4

Answer 12

it makes the law too rigid
complexity and volume of case law
slowness of growth in the law
retrospective effect

Question 13

explination for it makes the law too rigid

Answer 13

lack of flexibilty for common sense decisions
some precedents may have been set yearrss ago so this doesnt allow the law to be adapted to modern times
hard to get overruled as most cases dont go to the supreme court

Question 14

counter arguement for it makes the law too rigid

Answer 14

giving judges too much flexibility may be undemocratic as theyre unelected

Question 15

explination for volume and complexity of case
case

Answer 15

hard to seperated the ratio decidendi from the obiter dicta due to the length
numerous orevious cases in some areas making it a lot of pressure- donoghue v stevenson- thousands of decisions

Question 16

counter arguement for volume and complexity of case

Answer 16

possibly lots of guidance available for judges when making decisions

Question 17

explination for slowness of growth in the law
case

Answer 17

difficulty for judges to adapt to the law and its update- especially when this can only be done when a case is brought to court, appealed to a high enough court for the precedent to be overruled.
r v r still lawful to force wife into sex

Question 18

counter arguement for slowness of growth in the law

Answer 18

it can help ensure that the law is thoughtfully and carefully developed, taking into account all the relevant factors and potential consequences1. This can help prevent unintended consequences and ensure that the law is fair and just.

Question 19

retrospective effect explination
case

Answer 19

the law should not have the effect of punishing people for something that was not technically illegal at the time it happened. r v r- husband didnt techinally do anything illegal when firced wife into sex as it wasnt a crime then

Question 20

counter arguement to retrpspective effect

Answer 20

however people may attempt to exploit this loophole in the law. r v r would have known his actions are wrong but knew that he could avoid punishment on technicality