Advantages and disadvantages of judicial precedent
Some of the questions in your exams will ask for you to explain the advantages and/or disadvantages of certain areas of law in our legal system. The first area we are going to cover is the good or bad/the pros or cons/the positives or negatives of judicial precedent.
Advantages
Certainty If courts have to follow cases that have been set before, then it can be pretty easy to say how a case would turn out even before court proceedings are filed. This means that a solicitor can give clear, sound advice and suggest whether or not it would be useful or futile for a client to pursue a case. This can save the public people money and time in court; they could also avoid embarrassing or intimidating court cases. The House of Lords Practice Statement shows just how important certainty is. Flexibility If the courts are able to depart from their own decisions and overrule other decisions based on these principles discussed in the avoiding precedent section, then there is a certain flexibility within the law. R v Brown and R v Wilson is an example of this as the courts could use methods of avoiding precedent, so they had flexibility with their decisions. |
Disadvantages
Rigidity The courts have some ways to move and avoid precedent but these are restricted. If a case comes up in court it can be changed if it is a bad outcome, but cases and precedent can only change when a case comes to court. R v R 1991 could only change when the case came to court, but for a long time people clearly did not believe rape within marriage was acceptable. Government can only pass so many laws in its lifetime until policies and government change hands. It cannot put Acts of Parliament through quick enough to fix the problems that judges with powers to avoid precedent and bad cases could. Undemocratic Judges are there to apply the law. They are not in the courts to decide what the law should be. Government and Parliament are there as elected officials to forward our democracy. The courts read legislation and apply it into cases; they should not be there to change and deviate from the law if they do not want to or agree with it. Lord Esher stated in R v City of London Court stated that it was the judge's responsibility to give the words their ordinary meaning, and it was for Parliament to decide what the laws should be, and for judges to apply them Unpredictable If courts can avoid follow precedent, or depart from their decisions, then court cases could be unpredictable. An example is where we distinguish cases. If Brown and Wilson can be distinguished when they are very similar then it could be problematic for a solicitor to predict the outcome to his clients. There was very little difference between these cases so there are other opportunities where a judge could distinguish a case. Also, different Supreme Court judges and Court of Appeal judges could depart from decisions and cause problems. |