Evaluation of Precedent

Question 1

Certainty

Answer 1

• ADV
• Enables lawyers to advise clients accurately on law/how it will affect their case
• Helps individuals plan affairs according to likely outcome
• Stability for business affairs

Question 2

Fairness and consistency

Answer 2

• ADV
• Like cases treated alike which is fair/just
• Law not subject to whims of individual judges, greater credibility

Question 3

Flexibility

Answer 3

• ADV
• Fairly rigid overall, but can develop/evolve through distinguishing/overruling
• Means judges can develop the law to meet changing social/political/moral conditions

Question 4

Precision

Answer 4

• ADV
• Precise as minor variations of same principles arise
• Court cases are real (as opposed to theoretical in parliamentary law)
• Helps clarify meanings of particular statutory provisions

Question 5

Time saving

Answer 5

• ADV
• Vast body of precise law to rely on, means cases don’t have to constantly be re-argued from first principle
• Saves lawyers/courts/clients money and time

Question 6

Expertise of judges

Answer 6

• ADV
• Carry great authority, decisions respected as being impartial
• Helps new judges to rely on reasoning from judgements of senior judges

Question 7

Rigidity

Answer 7

• DISADV
• Binding precedent can make law to inflexible with bad decisions being perpetuated (takes time for suitable cases to get to courts which can change the law)
• Such cases may only get there because of money/persistence

Question 8

Complexity

Answer 8

• DISADV
• Difficult to identify relevant case law
• Judgements themselves are ofte long, with no clear distinction between obiter dicta and ratio decidendi (Re A)

Question 9

Illogical distinctions

Answer 9

• DISADV
• Some cases distinguished on minor/controversial points (‘hairsplitting’)
• Leads to area of law being over-complex (R v Wilson and R v Brown)

Question 10

Slowness of growth

Answer 10

• DISADV
• Areas of law are unclear/in need of reform, but judges can’t change law without a case before them (R v R)

Question 11

Judicial law making

Answer 11

• DISADV
• View that judges use precedent to make law they do not have the mandate to do, and only parliament should make law
• Judges argue they are simply adapting law to fit changing social conditions