Law of Precedent

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time, a law may be found as no longer applicable, or on the other hand, a new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
(traditionally... [continues]

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