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Judicial precedent - Coggle Diagram
Judicial precedent
Ways to avoid precedent
Follow
Overrule
R v R
Reverse
Shogun fiance ltd v hudson
Distinguish
Balfour v Balfour and Merrit v Merrit
Different types of precedent
Original
New point of law which has never been decided
Donoghue v stevenson
Persuasive
This is part of the judgement that should be followed in similar cases but is not binding but the judge may decide to follow it.
Hill v baxter
Binding
Similar cases follow the decision made in the first instance
Carlill v carbolic smoke ball co
Evaluation
Advantages
Judges are legal experts whereas politicians are not always
Existence of precedent may prevent a judge from making a mistake
Judges can change law quicker than parliament can
Fair and just that cases are dealt with in a similar way
Creates certainty in the law
Disadvantages
Judges may be biased and out of touch with society
Case law is very bulky and complex making it difficult to find the law
Unpredictable whether it will be able to change the law
Ratio decidendi of a case may be difficult to find and misapplied in future cases
When making a decision a judge is bound by a previous decision from a previous case
Process is called doctrine of judicial precedent
Ratio decidendi-reasons for the decision
Obiter dica-other things said
Stare decisis-let the decision stand
Where the past decisions from judges creates laws for future judges to follow for cases.
Common law is judge made laws