Laws in general should be relevant and reflect the current needs of society. There are many advantages to the doctrine of judicial precedent with one of the main advantages being the ability to save time when making a decision on a case. Another strength of precedent is the level of flexibility available. The advantages and disadvantages of judicial precedent work to create system that checks the crevices of previous decisions while shining the light of the law upon the facts of every case. The role of precedent in judicial decision villanova university. Advantages and disadvantages of precedent week five. Judicial precedent has been accepted as one of the important sources of law in most of the legal systems. Judicial precedent offers the legal system access to consistency and predictability. Judicial precedent when critically analysing to what extent the doctrine of judicial precedent affects judicial law making, one must first contemplate what the doctrine of judicial precedent is. Advantages usinesses and commerce can take the legal recourse easily if they know that the doctrine of judicial precedent will act in their favor. Judicial precedent is therefore an important source of law in botswana. What are the advantages and disadvantages of the doctrine of stare decisis for the develpment of law.
It may be a small idea in some circumstances, but it can also provide profound results. What are the advantages and disadvantages of judicial precedent. There are both advantages and disadvantages of the doctrine of precedent and the way in which judges may make new law. Youll have the opportunity to read a case yourself and write a casenote. In what sense does case law tend to promote efficiency. A judicial precedent the doctrine of binding precedent or stare decisis, refers to the fact that, the decision of a higher court will be binding on a court lower than its hierachy. Through looking back at past decisions and cases with similar material facts, judges are able to make decisions in an efficient manner if they believe that the precedent previously established was. A doctrine or policy by which the lower courts in hierarchy are required to follow rules or principles laid down in previous judicial decisions by higher courts. The doctrine of judicial precedent 153 to possess a clear understanding of the intricacies of judicial precedent. Study 6 advantages and disadvantages of judicial precedent flashcards from brad c. Doctrine of precedentstare decisis rules of the common law are laid down in cases. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3.
The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. What are the advantages of judicial precedent and what are. Advantages and disadvantages of doctrine of stare decisis. The doctrine of judicial precedent is fundamentally a rule that all lower courts are to be bound by the decision or ratio decidendi of the higher courts. Advantages and disadvantages of judicial precedent. Name the three things that introduce an element of flexibility into the doctrine of judicial precedent. The courts are bound within limits by prior decisions of superior courts. First, even when a layperson uses the term precedent there is an implication that what. The doctrine of precedent presents several disadvantages. The advantages are certainty know what to expect as previous decisions followed consistency and fairness similar cases are dealt with in same way precision case law helps to define law areas, so there is great detail. Youll be introduced to the doctrine of judicial precedent and the question of judges as lawmakers. Discuss the role and importance of the doctrine of judicial precedent. Advantages and disadvantages of binding precedent pros.
Indeed, the importance of establishing the cause of action lies even earlier than this. Stare decisis is a term used with binding precedent. Advantages and disadvantages of binding precedent pros and cons. May 06, 2019 the advantages and disadvantages of judicial precedent work to create system that checks the crevices of previous decisions while shining the light of the law upon the facts of every case. Some of the questions in your exams will ask for you to explain the advantages andor disadvantages of certain areas of law in our legal system. Dec, 2012 judicial precedent judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar. Since a judicial opinion may be interpreted in different ways, judges have significant latitude even when dealing.
The advantages and disadvantages of the doctrine of precedent. Introduction this submission will discuss the problems created by the doctrine of judicial precedent and will attempt to find solutions to them. Judicial precedent can be applied on cases and to be treated similiarly when the material facts of the cases are identical. On the other hand, case law has its disadvantages too which we known it as weaknesses. Overruling only used sparingly to promote consistency so also unlikely to be overruled e. What are the advantages and disadvantages of judicial. Learn vocabulary, terms, and more with flashcards, games, and other study tools.
In judicial precedent, the decision is taken by following the similar cases happened in the past. Discuss advantages and disadvantages of doctorine precedent. Precedent means decision given by the superior courts is binding on inferior courts and to be followed in future in similar cases doctrine of precedent bring certainty, predictability and uniformity in law. In order to examine the statement, scrutiny of the doctrine of the judicial precedent is required. The doctrine of judicial precedent means that judges can refer back to previous decisions to help decide similar cases where the law and facts are alike. What are the advantages and disadvantages of the doctrine. Judicial precedent is also known as stare decisisin latin, which literally means to stand by decided matters. Judicial precedent a explain what is meant by the doctrine of precedent. So judicial decision is based on the principle of stare decisis. Here is a look at some of the advantages of the judicial precedent. The disadvantages of the doctrine of stare decisis. Oct 07, 2016 advantages and disadvantages of precedent discussed using a number of key cases. Jan 23, 2017 consequently, there are advantages and disadvantages to the doctrine of judicial precedent which will both be discussed in this study. Essay on advantage and disadvantage of judicial precedent.
One strength of the operation of precedent is that it provides for a level of consistency and certainty. The role of judicial precedent 119application of stare decisis 1519authoritative force of stare decisis 115bills and notes 1112condemnation proceedings 1011constitutional law 23, 14contracts 5,1718criminal law 56flexibility of the doctrine 2, legislature 1415mortgages 7personal property 4. First i will address how the process of judicial precedent works, including the hierarchical structure of the courts, moving on to the advantages and disadvantages of using the doctrine. The problems created by the doctrine of judicial precedent. Advantages and disadvantages of the doctrine of binding. Key rules of judicial precedent and its advantages and disadvantages for business. Dec 01, 2019 with binding precedent, there is only one speech, which is a combination of more than three judges rulings.
The courts can more quickly lay down new principles, or extend old principles. The doctrine of precedent determines the relative weight to be accorded to the different cases. The principle of binding precedent is that a higher court is binding a lower court. Certainty with certainty, businesses know what to expect from certain actions. The advantages are certainty know what to expect as previous decisions followed consistency and fairness similar cases are dealt with in same way precision case law helps to define law areas, so there is great detail time saving saves time as no drafting and passing laws flexibility that law can changes with times the disadvantages are. Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given case is similar to another which follows it. The making of law in decided cases offers opportunities for growth and legal development which can not provided by parliament. Strengths and weakness of precedent year 12 legal studies. The doctrine of judicial precedent can be divided into binding precedent and persuasive precedent. For example, if a barrister is in the middle of a case and is ordering his affairs based upon a prior court ruling, the barristers current case will still suffer, even if that prior case ruling is unjustly overruled. The doctrine of precedent means that judges refer back to previous decisions to help them decide similar cases where the law and facts are alike. Advantages and disadvantages of precedent discussed using a number of key cases. In examining the development of our law reference was made to the role played by the judges in its evolution, the common law and equity being the product of judicial reasoning in that they have both evolved through the system of case law whereby law is made for the purpose of the decision of the. Judicial precedent means the process whereby judges follow previously decided cases where the facts are of sufficient similarity.
Binding precedent doctrine advantages and disadvantages. This doctrine means that similar disputes should be decided by reference to the same legal principles, and that lower courts are bound to follow the decisions of higher courts within the same court hierarchy. Judicial precedent judicial precedent is the process whereby judges follow previously decided cases where the facts or point of law are sufficiently similar. The doctrine of judicial precedent depends on two factors, court hierarchy and law reporting. Fundamentals level skills module, paper f4 bwa corporate and business law botswana december 2011 answers 1 this question requires candidates to discuss judicial precedent as a source of law in botswana citing its advantages and disadvantages. An advantage of judge made law is that decisions are based on principle meaning that judges are not making up the law as they go. An unjust overruling in one case can lead to injustice in all subsequent cases.
A judicial precedent becomes a binding precedent if the legal principle and the facts. A binding precedent is created when the facts of a latter case are sufficiently similar to the facts of a previous case. The concept of binding precedent may seem absolute. Businesses and commerce can take the legal recourse easily if they know that the doctrine of judicial precedent will act in their favour. Judicial precedent concerns itself with the influence and value of past decisions of case law and prior legal experience. Advantages and disadvantages of doctrine of stare decisis k. Overall, the doctrine of judicial precedent brings equally both advantages and disadvantages to the english legal system. The most significant advantage is the element of consistency and certainty that is brought in with the application of precedents. Binding precedent doctrine advantages and disadvantages binding precedent doctrine advantages and disadvantages introduction the concept of a binding precedent is basically a remnant of the common law that originated from the english judicial system, a system which is similarly adhered to by australia. This allows lawyers to advise their clients with some certainty as to their position and whether to take a case to court. Some rules and cases have greater authority than others.
Despite being referred to as being a fetter upon the courts, the rigid application of precedent is upheld in order to provide consistency. The advantage of judicial precedent is a less chaotic system, where the outcome can be better predicted, and justice can be more uniformly applied across the whole of the public. Binding precedent and english judicial lawmaking david vong u. First, stare decisis, which means to stand by the decided, whereby lower courts are bound to apply the legal principles set down by superior courts in earlier cases and appellate courts follow their. First, stare decisis, which means to stand by the decided, whereby lower courts are bound to apply the legal principles set down by superior courts in earlier cases and. Critically evaluate the advantages and disadvantages of the doctrine of binding precedent in english courts. Judicial precedent is also known as stare decisisin latin, which.
Doctrine of stare decisis also known as doctrine of binding judicial precedent. Judicial precedent or decisions is a process which is followed by the judges to take the decision. Abstract assignment essay help assignment help and. Court hierarchy is covered under the section of operation of the doctrine. Based on the explanation of doctrine of judicial precedent and the example of cases above, therefore, he is bound to the decision made by the court of appeal.
Here is a look at some of the advantages of the judicial. Judicial precedent is another important source of law, it is an independent source of law, where there are no legislations on the particular point in statute books, and judicial precedent works great. Case law is used to describe the collection of reported decisions of the courts, and the principles which stem from them. Aug 17, 2011 advantages and disadvantages of the doctrine of judicial precedents there are both advantages and disadvantages in following the method of precedents in deciding cases. The first advantage of judicial precedent is certainty. This doctrine is concerned with the influence and value of past decisions of case law and the judges prior legal experience. Feb 04, 2010 it is perhaps the most important advantage claims for the doctrine of judical precedent. Certainty a judge ultimately has to reach a decision in a case, and lawyers can advice their clients on the state of the current law and how it is likely to affect the case. Also, flexibility is the advantage of the doctrine of stare decisis. A judgement may be extremely long and it is for lawyers and judges in future cases to work out the ratio decidendi.
A judge is bound to follow the decision made by other judges or by the historical cases before they dealing in the cases with similar facts. What are the advantages and disadvantages of the doctrine of. Advantages and disadvantages of judicial precedent some of the questions in your exams will ask for you to explain the advantages and or disadvantages of certain areas of law in our legal system. Whereas, english law has formed over some 900 years it was not until the middle of the 19th century that the modern doctrine was reaffirmed. The lower court must follow the decision that made by a higher court. In the english legal system in the united kingdom, according to the act of settlement 1700, judges should theoretically make their decisions based purely on the logical deductions of precedent, uninfluenced by political or career considerations. The first area we are going to cover is the good or badthe pros or consthe positives or negatives of judicial precedent. The doctrine of judicial precedent 151 you ll out your claim form you must identify what it is you are suing forotherwise neither the court nor the defendant can respond. Role and importance of the doctrine of judicial precedent. Third, it also offers opportunity to develop the law. Advantages and disadvantages of judicial precedent some of the questions in your exams will ask for you to explain the advantages andor disadvantages of certain areas of law in our legal system.
The advantages and disadvantages of the doctrine of. Discuss the advantages and disadvantages of the doctrine of precedent. Advantages and disadvantages of the doctrine of precedent. Plus these decisions are based on a precedent and so have a stronger basis. Start studying judicial precedent disadvantages of judicial precedent. Judicial precedent disadvantages of judicial precedent. In practice however, stare decisis is a flexible concept. The notion of binding precedent goes hand in hand with the rule of stare decisis which assigns binding force to a number of precedents. The doctrine of precedent provides certainty as a result of judges using the precedent established in previous cases be applied if the case before the court is similar and the litigants can predict what will be the outcome of the case and their rights and liabilities. Advantages and disadvantages of precedent week five case. Essay on the doctrine of judicial precedent 5151 words. The doctrine of judicial precedent involves an application of the principle of stare decisis ie, to stand by the decided. If a court is already provided with an answer to a problem in which they face, it will not take as much time to reach a reasoned conclusion.
It is perhaps the most important advantage claims for the doctrine of judical precedent. Advantages and disadvantages of case law hodder education. Doctrine of judicial binding precedent this question raises the issue of the role of precedent. In this essay, binding precedent will be discussed.
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