evaluation of precedent (12)

Question 1

what are the advantages of precedent?

Answer 1

certainty

does have some flexibility

system is easy to use and reliable

Question 2

Evaluation of precedent - certainty

Answer 2

• Provides certainty, predictability and consistency
• This allows people to plan their affairs with knowledge of what the law is
• creates a stable environment for people to plan business affairs e.g wills and contracts
• main motivation behind London Street Tramways case (bound House of Lords to its’ own decisions)

Question 2

what are the disadvantages of precedent?

Answer 2

strict adherence prevents the law from developing

flexibility is judicial law making

large body of law causes problems

Question 3

Evaluation of precedent - strict adherence prevents law from developing

Answer 3

• Stops the law from developing in response to social, economic and technological advances
• R v R is a good example - took until 1991 for the law to change regarding rape within marriage
• Herrington v BR Board - changed the law regarding liability to trespassers (widely seen that building sites should now try and make it difficult for people (children) to get onto the site)

Question 4

Evaluation of precedent - does have some flexibility

Answer 4

• there are always ways around precedent i.e Practice Statement in Supreme Court which allows them to overrule themselves and some exceptions in the CoA where they can overrule themselves
• Judges can also distinguish cases to avoid precedent e.g R v Wilson and R v Brown

Question 5

Evaluation of precedent - flexibility is judicial law making

Answer 5

• critics argue that avoiding precedent is judicial law making
• goes against seperation of powers and parliamentary supremacy
• undemocratic as judges are not elected and not accountable for their decisions

Question 6

Evaluation of precedent - system is easy to use and reliable

Answer 6

• System of precedent is well established and dates back hundreds of years building up a huge body of law
• Decisions and principles have been refined and tested over time settling debates on the law
• precedents readily available to lawyers who can advise their clients appropriately
• do not have to argue cases from scratch each time
• modern commercial databases makes the job of looking for precedents even easier

Question 7

Evaluation of precedent - large body of law causes problems

Answer 7

• there are hundreds of thousands of past cases and it can be very difficult to find and identify past precedents
• distinguished cases can cause difficulties as it can be unclear which one to follow
• ratio isn’t always clear or identifiable which can cause difficulties
• judgements are often long and complex with no clear distinction between what is ration and what is obiter e.g Dodd’s case 1973