Advantages and Disadvantages of Judicial Precedent

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  • Created by: Rachel
  • Created on: 12-01-14 13:57

Consistency

The doctrine of precedent (common law) allows judges to be consistent: they are encouraged to stand by decisions that have already been made (stare decisis) and to ensure that like cases are treated alike (cases with similar facts are treated in similar ways), so that people know what the law is. The doctrine of precent prevents judges from making haphazard decisions, and encourages them to think properly about what they are doing. The rule that lower courts much follow higher courts supports this consistency: the Court of Appeal cannot overturn a Supreme Court/House of Lords decision such as Donoghue v. Stevenson. If the law needs to be changed, only the Supreme Court can do so. This ensure that the law will remain intact. 

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Predictability/ Certainty

Due to the fact that like cases will be treated alike, lawyers will be able to give sound and reliable legal advice to their clients. They can look at the decision in one case and be sure that if similar facts present themselves in future, a similar decision will be reached. For example, if a man decided to buy a bottle of Coca-Cola for his friend, it is likely that his friend would be able to sue Coca-Cola if here was a dead snail in the bottle, which made him ill: these facts would be so similar to the facts of Donoghue v. Stevenson that we can predict that Coca-Cola would likely lose this case. Sir Rupert Cross, in Precedent in English Law, points out that the doctrine of precedent is the 'strong cement' that allows English justice to remain rigid and certain. 

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Flexibility

It is true that judges can avoid following previous cases by distinguishing them on the facts (such as Merritt v. Merritt being distinguished from Balfour v. Balfour). So where two different cases have similar facts, the judges can claim that the facts are so different, that a different result is required. Some might argue that this is a bad thing. However, it is important that the law is flexible (easy to change) and not too rigid. The commone law is centuried old, and perhaps its greatest strength is that it is able to change when progress is needed; when courts are able to admit that errors were made in the past. The law is able to change with society and evolve gradually. For example, in R. v. R, the House of Lords brought the law up to date by overruling a centuries old rule that a man could not be found guilty of ****** his wife. Parliament had failed to address this issue. 

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Detailed Practical Rules

An advantage of the UK's common law system if that it enables the judges to make detailed laws. Normally five judges give Supreme Court judgments, but in Attorney-General v. Jackson, nine Law Lords gave judgments because the issue was so important (validity of the Parliament Act 1949). A Court of Appeal judgment alone can number over 80 pages if all threee judges speak at length. Futher, there are a wide range of Law Reporting series, such as the All England Reports, Weekly Reports and specialised reports like the Family Law Reports. The result is that there is a wealth of detail in the common law and the principles that are set out detail real-life situations, which are of practical value in future cases. 

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Saves Parliamentary Time

Court decisions prevent Parliament having to make laws. It is unrealistic to expect Parliament to make law in all the situations that affect our lives. The courts are better-placed to make these kinds of technical decision, as they decide real-life cases on issues that are brought before them. Parliament, on the other hand, tends to ignore such politically insignificant decisions and passes statutes which normally tidy up whole areas of law, such as the Fraud Act 2006. This was the case with marital ****. It had long been regarded by society as unacceptable, but Parliament had not found the time to change the law. The decision was finally made by the courts in R. v R in 1991. 

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Complexity

Many court decisions are difficult to understand. This is because of the complicated legal language the judges use, the often complex nature of the law and facts, particularly in large fraud and contract cases for example, and the fact that even judges who agree with each other on the result will disagree with each other on why they reached that result (ratio decidendi). If three judges reach the same decision but they all have different reasons, this can make it difficult to predict the result in similar cases in future. 

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Volume

The common law is centuries old. It is made up of nearly half a million reported cases and this number is growing continually. The sheer volume of judgments makes it difficult to research the law. Hundreds of decisions are reached each year: to find the law on a particular issue would mean searching through several decisions. It can be very difficult for lawyers and students to find what the ratio is in a particular case, by navigating through the words of several judges. 

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Uncertainty

There is an argument that the common law creates 'certainty'. Yet how can this be true, if some 'activist' judges choose to avoid following laws, by distinguishing them on the (sometimes trivial) facts? The power judges have to distinguish cases makes the law uncertain. Take the situation where a man decided to buy a bottle of Coca-Cola for his friend. His friend falls ill because of a dead snail in the bottle. The friend's lawyer might argue that the facts of Donoghue v. Stevenson are very similar. But the court might decide that it does not want him to be able to sue. The court might decide to prevent the friend from suing Coca-Cola because he caused his illness himself by having a weak stomach: the fact that he had a weak stomach meant that his case was materially different from Donoghue v. Stevenson. What could stop them from reaching such a decision? This does not create certainty at all, it might be argued. 

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Rigidity

Some say the common law system is flexible. However, J. A. G. Griffith argued that the Court of Appeal is reluctant to admit errors and change the law. Further, once the Supreme Court sets an unjust precedent, it cannot be overruled unless and until another case with similar facts goes all the way up the court hierachy (costing lots of money and taking lots of time) to the Supreme Court for reconsideration, or Parliament overrules the court decision. This happens very rarely. Thus common law is not actually flexible. It is in fact rigid and very difficult to change. Lord Denning argued in Davis v. Johnson that the Court of Appeal should be able to overrule its own previous decisions because it would save people the money they would have to spend to appeal to the Supreme Court.  

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Retrospective Effect of Decisions

The effect of a court overruling an earlier precedent is that people cannot rely on the law. They may act in the knowledge of what the law is at the time, only to have it changed if the case is appealed to a court that can change the precedent. This is what happened in R. v. R for example, the effect of which was to turn an act, which was lawful at the time it was committed, into a serious criminal offence. This unfairness party explains why judges have been so reluctant to use the Practice Statement. 

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Summary

Advantages:

  • Consistency
  • Predictability/ Certainty
  • Flexibility
  • Detailed Practical Rules
  • Saves Parliamentary Time

Disadvantages:

  • Complexity
  • Volume
  • Uncertainty
  • Rigidity
  • Retrospective Effect of Decisions
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