precedent

advan and disadvan

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  • Created by: Bryony
  • Created on: 05-01-11 15:40

Advantages of Precedent

Consistency

-there are no random decisions

-it is fair and equal

-it maintains justice

-people can plan their affairs

 

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Advantages of Precedent

Predictability

-people can be certain about the outcome of a case

-lawyers can advice their clients

-people can be certain of the outcome of their actions (deterant)

-the government will know who to help

-as they only help people who are likely to be successful so tax payers money is not wasted

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Advantages of Precedent

Flexibility

-judges can develop rules to new situations

-they can also update outdated rules

-example: R v. R 1991

-society has developed in terms of womens rights

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Advantages of Precedent

Original Precedent

-new precedent can be created

-when an area that has never been looked at

-example: Donoghue v. Stevenson

-negligence had never come up before

 

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Disadvantages of Precedent

Uncertainty

-lawyers are unable to predict the outcomes of cases

-due to methods of avoiding precedent

-there is no garantee of an outcome

-example: Merritt v. Merritt

-when they begun their case they would have thought it would have the same outcome as Balfour v. Balfour

 

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Disadvantages of Precedent

Complexity

-it is a complex job locating the ratio decidendi in a law report

-some courts there are 7 judges which means more than one ratio

-there is also a high volume of cases so the right one is hard to find

-over half a million pages

 

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Disadvantages of Precedent

Rigidity

-unjust decisions lead to further unjustices

-a law may also become out of date

-if HOL set an unjust precedent it cannot be overruled unless another case is appealed with similar facts

 

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Disadvantages of Precedent

Retrospective Effect

-law that judges make applied to events that have already happened

-unlike parliaments law making

-judges law is backward looking

-example: R v. R 1991

-when D had ***** his wife it was not illegal

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Disadvantages of Precedent

Unconstitutional and Undemocratic

-judges are overstepping their constitutional role

-judges are not elected

-they are not ment to make law they are ment to apply it

-the laws they make are not publicy debated before they come into force

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Advantages of Avoiding Precedent

Potential for Growth

-judges have opportunity to modernise and develop

-law is not totally rigid because mechanisms

-example: R v. R 1991

-new precedent was appropriate to modern thinking

 

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Advantages of Avoiding Precedent

Unfair Laws can be Replaced

-unfair laws can be abandoned and new ones replace them

-example: Brb v. Herrington

-this replaced Addies & Sons v. Dumbreck 1929

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Disadvantages of Avoiding Precedent

Uncertainty

-there is the possibility of judges avoiding precedent

-means we will not know the outcome

-there is no justice in people not knowing how to conduct their lives

-D's cannot be advised as lawyers do not know the likelihood of pursuing a successful case

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Disadvantages of Avoiding Precedent

Retrospective Law Making

-avoiding precedent means making a change

-this is unjust as its backward looking

-example: R v. R 1991

-it wasn't illegal when he had carried out the act

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Disadvantages of Avoiding Precedent

Judges making Laws

-it should be parliament making law

-judges should apply the law

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