Pros and cons of judicial precedent Flashcards
Saves time
Where a principle has been established, cases
do not have to be constantly re-argued from first principle, which saves lawyers, courts and clients’ time and money. Many are unlikely to go through the lengthy process of litigation.
Precision
System has been refining law over hundreds of
years the law and becomes very precise, as minor variations on the same principles arise, well illustrated by the numerous cases.
Certainty in the law
Because the law follows past decisions,
lawyers know what the law is and how it is likely to be applies, so they can give accurate advice and clients can make more informed decisions about pleading / starting a claim
o Law is not subject to whims of individual judges which lends greater credibility
o Stability for business and other financial arrangements to be founded on
Fairness & Consistency
Cases with similar facts are treated alike which
is fair, just, certain and rational.
o The law must be consistent if it is to be credible Elements of Flexibility
o Methods of avoiding precedent allows room
for development through distinguishing, overruling etc., which means judges can develop the law to meet changing social, political or moral conditions (e.g. R v R)
Undemocratic
Allows the law to be made by unelected judges o Judges should merely apply the law given to
them by Parliament under the principle of
Parliamentary Sovereignty.
o However, many judges argue that they are
simply adapting existing legal rules to fit changing social conditions (‘declaratory’ theory)
o e.g. Dodd’s Case (1973) – judges granted extension of limitation period imposed in the Limitation Act 1963
Illogical distinctions
Distinguishing can lead to ‘hair-splitting’ -
some areas of law have become very complex and the differences between some cases may be very small and illogical
o Flexibility of avoiding precedent means that lawyers cannot always accurately advise clients with certainty about the outcome of a case.
System is Rigid
The principle of stare decisis, the rigid court
hierarchy, binding precedents and the limited methods of avoiding precedent mean that out- of-date laws may last a long time.
o Changes in case law only happen if a party has the money and persistence to appeal decisions, which takes time - e.g. It took until 1991 to outlaw marital rape (R v R)
System is Complex
o There are nearly half a million reported cases –
it is not easy to find all the relevant case law,
even with computerised databases.
o Judgments themselves are sometimes very
long with no clear distinction between obiter and ratio (e.g. in Dodd’s Case (1973), even the CA said they were unable to find the ratio in a HL judgment!)
Stare decisis
Principle of stand by the decision and do not unsettle the established. Basically if material facts are the same, then judge must follow past decision.
Binding Precedent
Must be followed. Usually comes from a higher court. Broadly similar case facts . Precedent from case that become binding- Rylands v Fletcher and Read
Ratio Decidendi
Reason for the decision. Eg. DvS manufacturer owes DoC to the consumer
Persuasive Precedent
- Obiter dicta (neighbour principle)
- Courts in lower hierarchy (RvR HoL followed CoA)
- Decisions of Judicial Committee of the Privy Council. Wagon mound
- Dissenting judgements. Rose and Frank
- Decisions in cases from outside our court system (Australia NZ CA)
Original Precedent
New point of law. Will be both binding and original eg. Hunter v Canary Wharf
Law Reporting
law reports etc.
