Judicial precident Flashcards
(18 cards)
Advantage of judicial president- consistency
two/ more cases that are similar will be treated the same, promoted equality and justice. Eg DPP v Smith
Advantage of judicial precedent- predictability
lawyer’s can advise their clients on the predicted outcome, important for government funding and out of court settlements
Advantage of judicial precedent- flexibility
Law can be developed and flexible to meet changing , laws of society , law changed when parliament cannot.
Advantage of judicial precedent- detailed practise rules
cases are responses to real life cases , lots of detail in cases including examples of the obiter dicta
Disadvantage of Judicial precedent- complexity
judgemnets often complex and difficult to interpret what the point of law is. Appeal court can havr more than one judgment which can also be confusing
Disadvantage of judicial precedent- uncertainty
judges have various ways of avoiding binding precedent which creates uncertainty in law. Eg Balfour v Balfour and Merrit V merrit
Disadvantage of judicial precedent- volume
difficulty for anyone to research the law , hundreds of judgements made every year, researching would be extremely time consuming, internet somewhat useful.
Disadvanatge of Judicial Precedent- rigidity
unjust precedent set at high level can create further injustices, if supreme court creates a precedent then it cannot be overturned until a similar case goes to court, may take many years
What is the translation of stare decisis
means let the desicion stand
what does stare decisis mean
- most important element, has to follow the decision or binding legal principle
- provides certainty and consistency
what is the tranlastion of ratio decidendi
means reason for the decision
what does ratio decidendi mean
- made by the judge and is legally binding
- must be followed depending on heirachy of the courts
- point of law
what is the translation of obiter dicta
means things by the way
what does obiter dicta mean
- not part of binding precedent
- merely persuasive
- judge may speculate if facts had been different
what is binding precedent
one that must be followed, ratio decideni is binding on courts of same level
what is persuasive precedent
one that may be followed , obiter dicta , higher court is more persuasive the precedent
what is original precedent
if a point of arising from the case has never been decided before, judge will divide and set new original precedent
