advantages and disadvantages of judicial precedent1️⃣2️⃣

Question 1

Judicial Precedent – Advantages

P – Judicial precedent provides certainty, consistency, and fairness.

Answer 1

Dev/I/E:
Development: These principles are prioritised by judges, shown in the opening of Lord Gardiner’s Practice Statement, which has been used very sparingly.
Impact: This builds public trust and ensures equal treatment in similar cases.
Example: The first major use in civil law was in BRB v Herrington, six years after the Practice Statement.

Question 2

Judicial Precedent – Advantages

P – Judicial precedent makes the law precise and detailed.

Answer 2

Dev/I/E:
Development: Law reporting means judgments are recorded word for word, building up the law over time.
Impact: This clarity helps avoid confusion and ensures consistent interpretation.
Example: In R v Brown and R v Wilson, variations of facts helped define limits of consent.

Question 3

Judicial Precedent – Advantages

P – Judicial precedent allows for flexibility in the law.

Answer 3

Dev/I/E:
Development: Judges can create new precedent or avoid existing ones using methods like distinguishing.
Impact: This prevents unfair outcomes and allows the law to evolve with society.
Example: In Merritt v Merritt, the court distinguished it from Balfour v Balfour to reach a fairer outcome.

Question 4

Judicial Precedent – Advantages

P – Judicial precedent saves time in law-making.

Answer 4

Dev/I/E:
Development: Unlike Parliament, courts can make or apply law quickly, avoiding delays.
Impact: It allows quicker resolution of legal issues and keeps the system efficient.
Example: Once precedent is set, similar cases are resolved faster, reducing the need for repeated litigation.

Question 5

Judicial Precedent – Disadvantages

Judicial precedent can make legal reform slow and uncertain.

Answer 5

Dev/I/E:
Development: Legal change depends on cases reaching higher courts, which can take years.
Impact: The law can remain outdated for long periods.
Example: It took until R v R (1991) to update the law on marital rape, despite prior criticism.

Question 6

Judicial Precedent – Disadvantages

P – Judicial precedent is highly complex.

Answer 6

Dev/I/E:
Development: Judgments often contain multiple opinions, dissenting views, and unclear ratios.
Impact: This makes it difficult for even judges to identify the binding element of a case.
Example: In Dodd’s case, the Court of Appeal admitted they couldn’t find the ratio from a House of Lords case.

Question 7

Judicial Precedent – Disadvantages

P – Judicial precedent can lead to uncertainty.

Answer 7

Dev/I/E:
Development: Judges can avoid precedent through distinguishing or overruling, making outcomes unpredictable.
Impact: Lawyers may struggle to advise clients and individuals may lose confidence in fairness of the law.
Example: In Merritt v Merritt, the court distinguished from Balfour, and in R v Shivpuri, the House of Lords overruled a precedent from just a year earlier.

Question 8

Judicial Precedent – Disadvantages

P – Judicial precedent operates retrospectively.

Answer 8

Dev/I/E:
Development: When a new precedent is set, it applies to the case in front of the court and not from a future date.
Impact: This can lead to individuals being punished under a new interpretation of the law.
Example: In R v R, the defendant was convicted for something that wasn’t clearly illegal when it occurred.