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There are advantages and disadvantages of the system of judicial
precedent as it has developed in English law.
The advantages are as follows:
Certainty:
Liberty to decide each case as you think right without any
regard to principles laid down in previous similar cases would
only result in a completely uncertain law in which no citizen
would know his rights or liabilities until he knew before
what judge his case would come and could guess what view that
judge would take on a consideration of the matter without
any regard to previous decisions
However, it is necessary for any system of law to have a degree
of flexibility, and to the extent that law is flexible it
cannot be certain, and vice versa. The courts, particularly
the House of Lords,
must therefore always balance the need for certainty against
the need for flexibility in any particular case.
Possibility of growth.
The system allows for new rules to be established and old
rules to be adapted to meet new circumstances and the changing
needs of society. Where a precedent is considered to be particularly
valuable its scope can be extended in later cases: conversely,
where a precedent is felt to be defective, its scope can be
restricted by the process of distinguishing mentioned above.
Wealth of detailed rules. No code of law could be devised
which would provide the wealth of detail to be found in English
case-law.
Practicality.
The rules of English case-law do not derive from a particular
theory of law, and do not attempt to deal with hypothetical
circumstances. They are the result of the consideration of
real situations which have come before the courts.
The disadvantages of the system of judicial precedent
are:
Rigidity.
Once a rule has been laid down it is binding even if the decision
is thought to be wrong, and altercation, other than by distinguishing,
which is less than wholly satisfactory, is difficult. This
disadvantage is modified to the extent that the House of Lords
is not bound by its own previous decisions, but people are
reluctant to bring appeals before the House of Lords because
of the enormous expense involved, particularly bearing in
mind that the House will not overrule its own previous decision
except in the most compelling circumstances. The possibility
that case-law will be abrogated or modified by legislation
alleviates the disadvantage of rigidity to some degree, but
in practice it is rare for the legislation to interfere with
case-law.
Bulk and complexity.
There is so much law that no one can learn all of it. There
is a danger that even an experienced lawyer may overlook some
important rule in any given case. This is particularly so
with those branches of law which have been developed mainly
by case-law, as, for example, the law of torts.
Slowness of growth.
The system depends on litigation for rules to emerge. As litigation
tends to be slow and expensive the body of case-law cannot
grow quickly enough to meet modern demands.
Where it is felt that a particular case has long been a precedent
operates unfairly, or where the law on an important point
is unclear, it is argued by some that appeals to the House
of Lords should be financed at public expense, as it is inequitable
that the law should be developed or clarified at the expense
of private litigants. (It is worth noting, however, that many
cases heard in the House of Lords are in effect financed by
public funds, where the parties are either legally aided or
are bodies, such as the Commissioners of Customs and Excise,
who are financed entirely out of public funds).
See Also:
Judicial
Precedent Case Law
History
of Precedent
Rules
of Precedent: Civil Courts
Law
Reports
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