Describe advantages and disadvantages of judicial precedent (12 marks) Flashcards
(9 cards)
1
Q
Adv. FLEXIBLE
A
Flexible
• Judges can change the law using tools like overruling or distinguishing. • This keeps the law up to date.
Example: In British Railways v Herrington, the court overruled an older case and said landowners do owe care to trespassers.
2
Q
Adv CREATES CERTAINTY
A
- Creates Certainty• Judges follow past cases, so people can predict outcomes.
• This is fair and consistent.
Example: The Caparo test helps people know when a duty of care is owed.
3
Q
Adv PRICISED AND DEVELOPED BY EXPERTS
A
- Precise and Developed by Experts
• Case law builds up step by step and is based on real cases. • Judges are legal experts, so the law is high quality.
Example: Negligence law from Donoghue v Stevenson and Caparo v Dickman
4
Q
A
5
Q
ADV SAVES TIME AND MONEY
A
Saves Time and Money
• If a case is similar to an older one, it might not even need a trial. • Lawyers can give clear advice based on past decisions.
6
Q
DISADV CAN BE UNCLEAR
A
- Can Be Illogical and Unclear• Judges may “split hairs” to avoid following a case by saying the facts are slightly different.
Example: In Merritt v Merritt, the judge avoided following Balfour v Balfour based on small differences.
7
Q
Disadv. Too slow
A
- Too Rigid and Slow• Lower courts must follow higher courts, even if the old rule is out of date.
• Change is slow, because it depends on cases being appealed.
Example: It took until 1991 (R v R) to make marital rape illeg
8
Q
DISADV complecated
A
Complicated
• Hard to find the right case and understand it. • Judges’ decisions are long, and it’s not always clear what the main legal reason (ratio decidendi) is.
9
Q
DISADV undemocratic
A
- Undemocratic• Judges are not elected, but they make laws through precedent.
• Some people think only Parliament should make laws, especially on big moral issues.
Example: Some think Parliament, not judges, should have decided on marital rape in R v R.
