What do you understand by precedent in the English legal system?
It is a legal case establishing a principle or rule that a court or other judicial body may utilize when deciding subsequent cases with similar issues or facts.
What are the advantages and disadvantages of having a legal system based upon the doctrine of precedent instead of having a legal system based upon codified law?
1. Provides certainty in law.
2. Judges have clear cases to follow.
3. Lower courts follow higher courts.
4. It also leads to an orderly development of the law. Only the Lords can overrule it’s previous decisions and the hierarchy of the courts ensures that lower courts follow higher courts.
5. Case law of real situations – viable statute law and therefore rule and principles are derived from everyday life. This means that it should work effectively and be intelligible.
6. The law can develop. There is flexibility especially since 1966.
7. Saves time – avoids unnecessary litigation.
1. There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear.
2. Case law can only change if a real case is brought. This requires someone to have the money (or the access to legal aid) to bring such a case. To take a case to the Lords is highly expensive.
3. Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns) Very few cases get to the Lords which is the only court which can overrule one of it’s own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime.
4. Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily.
5. It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson.
6. Too much distinguishing or use of Practice Statement damages certainty.
What does a court have to do if it has to decide on... [continues]
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