Law of Precedent

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Law of Precedent

One of the major considerations on how someone is tried in a court of law depends upon the previous convictions of similar cases. This law of precedent (stare decisis) was founded hundreds of years ago as part of our common law. The literal translation of stare decisis is "that like cases be decided alike." Precedents in law play a fundamental role in the judicial processes of Canada. From stealing a loaf of bread ranging to murder in the first degree, there are precedents for any type of case that has ever occurred in Canada, and even many cases from Britain (prior to 1949 and the abolishment of the JCPC). Unfortunately, the law of precedent does have its downfalls.

Despite the fall backs of stare decisis, the law of precedent still holds true and important in our modern society. Some of the shortcomings of stare decisis are the following: As time changes, precedents need to change in order to accommodate society's new values and laws. Furthermore, the introduction of "social facts" in court cases has clouded over many existing precedents with many new facts and ideas that render the basics of stare decisis much more complicated.

One of the more common drawbacks to the law of precedent is that over time, a law may be found as no longer applicable, or on the other hand, a new decision may be found in a trial which can also be undesirable. Keep in mind that the courts are not supposed to create new policies to deal with new problems, that is the role of the legislature. This drawback is prevalent in two forms: The first is the ruling of a court case, and the second is the sentencing or judicial decision of a case.

In order to examine the first form an example is given. A long time ago, sexual harassment at the work place was virtually unheard of or it was ignored altogether. The case probably would not even make it to court. Nowadays if a boss (traditionally a man) simply inquires about an employee's sexual status...
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