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Judicial Precedent - Doctrine of Judicial Precedent (What is it? (when a…
Judicial Precedent - Doctrine of Judicial Precedent
What is it?
when a new case is being decided, the judge needs to decide if a previous decision is relevant
if so, the judge should follow that precedent, applying the same principle of law to the current case
if the precedent is a decision of a court superior to it in the hierarchy then a court must follow or stand by that precedent in the present case
if the precedent is one of the higher court's own previous decisions, then - subject to certain exceptions - it must follow the precedent
if the precedent is a decision of a court inferior to it in the hierarchy, then it is not bound to follow precedent, but may do so if it chooses
leads to consistency and fairness in the law
based on the principle of stare decisis
Advantages of the Doctrine of Judicial Precedent
flexibility
there is the possibility that the law can change and develop
allows the law to meet changes in society such as social and technological changes
ex = :red_flag: BRB v Herrington overruling :red_flag: Addie v Dumbreck
however, allowing judges the flexibility to overrule/distinguish (and not follow binding precedent) means that they can be accused of judicial law making
consistency/certainty
principle of stare decisis, past decisions followed by courts, outcomes are fairly certain
gives law credibility and the public have more faith
ex = claimant + defendant in a contract dispute can get legal advice on the likely outcome of their cased based on a prev. decision where the facts were similar
however, absolute consistency can lead to rigid, inflexible law that may not adapt to changes in society. The outcome is not always certain as the courts avoid following precedent by distinguishing or overruling
precision
legal principles are set out in cases with particular facts and different areas of law become very precise and detailed
the law can be applied to different situations in a detailed way to achieve justice
ex = common law defence of duress has gradually built up through different cases to provide detailed guidance to the courts as to when the defence can be successfully used by defendants
however, the law can become so detailed that it is very complex and inaccessible (difficult to understand)
Disadvantages of the Doctrine of Judicial Precedent
rigidity
as lower courts have to follow decisions of higher courts and higher courts generally have to follow their own, the law can become inflexible
higher courts may wish to develop outdated law but they cannot until there is a case before them on appeal that deals with relevant facts
ex = the law on marital rape stayed the same for centuries and was confirmed in :red_flag: R v Miller - only changed when :red_flag: R v R came before HL
however, rigid law is also consistent law and consistency can be seen as just
complexity
very difficult for judges, lawyers and public to locate relevant case law - it is difficult to extract ratio decidendi from the lengthy judgement
makes the law less available in terms of finding out what it is and understanding it
ex = there are around 500,000 reported cases in existence, all with their own judgements etc.
however, complexity means that it can deal with a variety of detailed issues in a precise way
undemocratic/unconstitutional
ability of higher courts to develop law may be seen as judicial law making
unconstitutional because it is contrary to the doctrine of separation of powers, and is undemocratic because judges are unelected, unlike Parliament - the supreme law maker
ex = when HL created original precedent in the :red_flag: Gillick case, they made new law
however, the ability of higher courts to develop the law means that it can adapt to new situations