Judicial Precedent (Advantages And Disadvantages) Flashcards
What are the advantages of precedent?
- Certainty.
- Consistency and fairness in the law.
- Precision.
- Flexibility.
- Time saving.
What are the disadvantages of precedent?
- Rigidity.
- Complexity.
- Illogical distinctions.
- Slowness of growth.
Why is certainty and advantage of precedent?
As courts follow previous decisions people know what the law is and how it may be applied to their case. Allows lawyer to effectively advise clients on the outcome of their cases and allows businesses to know that financial and other arrangements they make are recognised by law. The Practice Statement points out how important certainty is.
Why is consistency and fairness in the law an advantage of precedent?
It is seen as just and fair that similar cases should be decided in a similar way, the law must be consistent if it is to be credible.
Why is precision an advantage of precedent?
As the law is set out in cases the law becomes very precise. It becomes well illustrated and builds up through the different variations of facts in the cases that come before the courts.
Why is flexibility an advantage of precedent?
The law can change as the Supreme Court can use the Practice Statement to overrule previous decisions. It also gives all courts some freedom to develop the law.
Why is time-saving an advantage of precedent?
Where a principle has been established, cases with similar facts are unlikely to go through the lengthy process of litigation.
Why is rigidity a disadvantage of precedent?
The fact that lower court have to follow higher court decisions and the fact that the Court of Appeal must follow its previous decisions means the law can be too inflexible and bad decisions made in the past can be repeated.
Few cases go to the Supreme Court. Change in the law will only occur if parties have the courage, persistence, time and money to appeal their case.
Why is complexity a disadvantage of precedent?
Due to the number of reported cases it is often hard to find the relevant case law. Additionally, the judgements themselves can be confusing as with no clear distinction between comments and the reason for the decision, this makes it difficult sometimes to extract the ratio decidendi (e.g. in Central Asbestos Co. Ltd v Dodd).
Why is illogical distinctions a disadvantage of precedent?
Use of distinguishing to avoid past decisions can lead to ‘hair-splitting’ so that some areas of the law have become very complex. The differences between some cases may be very small and appear illogical.
Why is slowness of growth a disadvantage of precedent?
Judges are aware that some areas of the law are unclear or in need of reform but they cannot do anything unless a case that needs to be decided. This a one of the criticisms of why the Court of Appeal shouldn’t have to follow its own previous decisions. About 50 cases go to the Supreme Court each year meaning there will be a long wait for a suitable cases to go that high and have the potential of for change.
