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Mechanics of precedent - advantages and disadvantages

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Advantages and disadvantages of the doctrine of judicial precedent

Convenient timesaving device

If a problem has already answer and been solved it is natural to reach the same conclusion.

Can become thoughtless

The convenience of following precedent should not be allowed to degenerate into a mere mechanical exercise performed without any thought.

 

Too many precedents

The citation of authority in court should be kept within reasonable bounds because it can be costly in terms of time and money.

Lord Diplock has warned of the 'danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase'

The House of Lords has decided that it will not allow transcripts of unreported judgments of the Court of Appeal, civil division, to be cited before the House except with its leave.

 

Greater certainty in the law

Is perhaps the most important advantage claimed for the doctrine of judicial precedent.

It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence.

 

Avoids mistakes

The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance.

 

Mistakes perpetuated

Judicial mistakes of the past are perpetuated unless bad decisions happen to come before the House of Lords for reconsideration. In any event, flexibility and certainty are incompatible features of judge-made law. A system that was truly flexible could not at the same time be certain because no one can predict when and how legal development will take place.

 

Too confusing

However, the advantage of certainty is lost where there are too many cases or they are too confusing.

Prevents injustice

The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a following case.

 

Causes injustice

The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it.

Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.

 

Ensures impartiality of judge

The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious.

 

Practical character

Case law is practical in character. It is based on the experience of actual cases brought before the courts rather than on logic or theory.

 

Limits development of the law

The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding.

 

Offers opportunity to develop the law

The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lies another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law.

 

Flexible

The case-law method is sometimes said to be flexible. A judge is not so free where there is a binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity.

 

Centralised nature of English Law means it is easier to follow

Following of precedent is easier in England than in many other countries because England has a centralised legal system with only a small number of courts.

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