Precedent advantages and disadvantages Flashcards
what is the first benefit of judicial precedent and what 2 cases are the examples
creates certainty within the law
Jones v Sosss Re dowling
why does precedent create certainty
bases on stare decisis which means to stand by the decision which means same decisions will always be made in lower courts
who does certainty benefit
lawyers judges and defendants as certainty allows them to prepare for cases
what is the counter to precedent creates certainty
can create rigidity in law as judges in Re Dowling knew decision was wrong but had to follow which means bad decisions will be repeated and therefore injustice in many cases
what is the second benefit of judical precedent and what case examples are used
its is a fairly flexible doctrine
R v Shivpuri and Anderton v Ryan
why is precedent being flexible good
higher courts can distinguish and reverse and any courts can distinguish so can change past bad decisions
what happened in R v Shivpuri that used flexibility
R v Shivpuri was able to overrule Anderton v Ryan as court realised in past they made a bad decision so therefore the flexibility means that the law can adapt to society changing and bad decisions can be reduced
what is the counter to precedent being flexible
can create uncertainty in the law as its unclear if judge will change decision or stick with it
this is detrimental to lawyers, judges and defendants
what is the third benefit of judicial precedent and what case examples are used
it can respond to real life situations
R v R
what is good about precedent responding to real life situations
precedent is based on case law and cases deal will real life situations whereas statutes only deal with theocraticals
what happened in R V R and how was response to real life situations used
husband tried to force his wife to have sex with no consent and society no longer thought this was acceptable so court changed law ands made marital rape illegal
good as law can be updated with real life events and society
what is the counter to precedent responding to real life situations
as creating precedents is so easy it means that there are lots of different precedents which can make law complex and hard to understand over time
what is the fourth benefit of judicial precedent and what case examples can be used
allows for judicial creativity when there is a problem within the law
R V R
why is judicial creativity good
any courts can distinguish if existing laqw doesnt apply to current facts and original precedent allows judges to create precedent on areas of law that have not been decided yet
how was judicial creativity used in R V R
parliament had not given any guidance about marital rape so so judges where able to make this illegal in R V R
leads to justice and saves parliament time with minor situations
what is the counter to judicial creativity
goes against separation of powers as judges can make laws even though they are not democratically elected
what is the first disadvantage of judicial precedent and what case examples are used
precedent can be seen as rigid as based off stare decisis
Jones v Sosss and Re dowling
why can precedent be seen as rigid
same decisions must be followed in lower courts and higher courts reluctant to overrule precedents even when they can
what happened in jones v sosss and Re dowling that made precedent seem rigid
in jones v sosss the court knew that the decison in Re dowling was wrong but kept it for certainty
rigidity is bad as outdated law will not be changed quickly enough so injustices will be repeated in future
what is the counter to law being seen as rigid
can create certainty in the law as they stand by decisions making its easier for lawyers and defendants to prepare for cases and easier for judges to apply the law
what is the second disadvantage of precedent and what case examples are used
precedent is not very certain
merritt v merrit and balfour v balfour
why is precedent not certain
there are several ways of avoiding precedent
any court can distinguish and higher courts can overrule and change the law
what happened in merritt v merritt that made precedent not seem certain
merrit distinguished balfour on marital agreements in a case about money agreemets between a living couple we cant be sure of decision now due to
by having multiple decisions on similar cases it becomes hard to predict outcomes for lawyers judges and defendants handling cases
what it the counter to precedent not being certain
the flexibility can help avoid injustices where standing by decision would not be fair and allows law to update with society
what is the third disadvantage of precedent and what case examples do we use
precedent can be very complex
Re J
why is precedent complex
there are nearly half a million precedents already and even more get made through distinguishing
hard to tell difference between ratio decidendi and obiter dicta due to judgements being written in lengthy prose making it hard to apply law
what happened in Re J that made precedent complex
the judge could not figure out what the ratio was so had no idea which decision he would be making
bad as it defeats point of precedent and law cant be applied if you cant figure out what law is meant to be
what is the counter to precedent being complex
the fact its easy to make precedent makes it easy to respond to real life situations that come up in society
what if the fourth disadvantage of precedent and what case examples are used
precedent goes against seperation of powers
R V R
why does precedent go against seperation of powers
precedent allows judges to make laws which should only be a power of parliament as judges are not democratically elected
what happened in R V R that went against separation of powers
judges made marital rape illegal despite parliament never making a law about this themselves
problem as judges are not democratically elected so might not reflect society of parliaments wishes when making law
what is the counter to precedent goes against separation of powers
when parliament have not made any law previously then judges can make law with original precedents and save parliament time of making new laws themselves
