Judicial Precedent Flashcards
(9 cards)
Allows for judicial creativity (Adv)
Cause:
- Courts can distinguish if an existing law doesn’t apply to the current facts, and original precedent allows judges to create a law where there is no preious law at all
Example:
- In R v R no guidance about marital rape was given to parliament so judges were able to make it illegal
Consequence:
- This is good because this creativity leads to justice, and can save Parliament the time of having to make laws to cover new or minor situations.
CA: This undermines seperation of powers
Flexibility (Adv)
Casue:
- this allows judges to avoid precedent if it would result in a bad decision. Higher courts can change and overrule precedent and any court can distinguish precedent
Example:
- In R v Shivpuri the SC used the 1966 practice statement to overrule Anderton v Ryan, as the SC thought it was wrong and that the law needed to be corrected.
Consequence:
- This is because wrong decisions can be avoided or changed quickly so that they aren’t repeated, and so the law can be updated in line with societal changes.
CA: This leads to uncertainty and too many precedents made on one PoL
SC = Supreme Court PoL = Point of Law
Certainty (Adv)
Cause:
- Precedent is based on Stare Decisis. Therefore the same decision will always be made by lower courts. Higher courts also will follow precedent due to a reluctancy of overruling their own precedent.
Example:
- In Jones v SoSSS the HoL refused to overrule Re Dowling even though a majority of judges admitted their precedent was wrong, using certainty as a reason. This shows how important certainty is.
Consequence:
- This is good because:
-citizens can know their rights
-lawyers and defendants can prepare for the outcomes of cases properly
-Judges can apply the law easier
CA: Certainty can be rigid causing slow change and injustice
Laws can respond to real life situations (Adv)
Cause:
- Precedent is based on case law and deals with real life situations, whereas statutes from parliament onlt deal with hypothetical situations.
Example:
- In R v R the husband tried to force himself onto his wife. Society no longer saw this as acceptable so the HoL decided to make marital rape a crime to reflect the changing nature of society.
Consequence:
- This is good as the law can be made and changed in response to real events allowing for the law to be updated
CA: This undermines the separation of powers
Rigidity and Slowness of Growth (Dis)
Cause:
- Judicial precedent means that only senior courts can decide on and change precedent, making it slow to change.
Example:
- Jones v SoSSS, this is where the HoL refused to overrule ReDowling even though a majority of judges agreed it was wrong, this was done to uphold certainty
Consequence:
- This rigidity is a problem because outdated laws will not be changed quickly so the same result will repeat in the future, causing injustice.
CA: This certainty helps civilians know their rights
Uncertainty (Dis)
Cause:
- The courts have so many ways of avoiding precedent that it becomes hard to tell when a court will actually follow a precedent, and what method of avoiding they will use.
Example:
- In Merritt v Merritt it distinguished Balfour v Balfour on marital agreements. If a similar case between a couple living together comes up are we certain it will follow the same decision now?
Consequence
- Uncertainty is bad because people won’t know their rights, lawyers and defendants can’t aptly prepare for outcomes, and judghes will struggle to apply the law.
CA: Avoiding precedent in this way can stop outdated and wrong decisions
Precedent is complex (Dis)
Cause:
- There are nearly half a million precedents at the moment and even more are created through distinguishing.
- It is hard to tell the difference between obiter and ratio in the judgements because of how they are written, making it harder for later judges to apply the law
Example:
- In Re J the judge couldn’t figure out what the ratio was and so had no idea what decision he was meant to be making
Consequence:
- This is bad because it defeats the point of precedent; how can you apply the law if you can’t figure out what the law is meant to be?
CA: Experienced judges can navigate complexity to create fair outcomes.
Undermines the separation of power
Cause:
- This is because precedent allows judges to make and change laws, when it should only be parliament who have this power.
Example:
- In R v R judges chose to make marital rape illegal despite Parliament never making a law against this themselves.
Consequence:
- This is a problem because judges are not democratically elected, do judges may not reflect society’s wishes when making precedent
CA: Judges can change law when it is outdated quicker than Parliament
What are the Adv and Dis of Judicial Precedent?
Adv:
- Allows for judicial creativity
- Flexibility
- Certainty
- Real life situations
Dis
- Rigidity
- Uncertainty
- Preceden is complex
- Undermines separation of the powers
