Advantages and Disadvantges of Precedent

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  • Advantages and Disadvantages of Precedent
    • The English law is certain
      • Lawyers can give advice to their clients with a very high level of certainty. In criminal courts, over 80% of D's plead guilty. In the civil system, over 90% are settled out of courts, avoiding huge costs in courts.
    • The law is fair and consistent
      • Some precedents have operated for hundreds of years and are still regarded as a good law. Even if the precedent is unpopular it is consistently applied
        • E.g - Donoghue V Stevenson
    • Precedent creates detailed law
      • English statutes tend to be written in general terms with very little detail relating to the actual working.
        • Actual detail is created through Judicial Precedent based on real cases.
    • Precedent creates flexibility within the law
      • As the English law is written in general terms, the courts can reinterpret the law as new legal situations arise. The statutes can operate for long periods of time as the law is updated through precedent.
    • Precedent makes the law too complex
      • looking for one case in half a million is very hard. The precedents may have been lost. However most of them are now online.
    • The law develops by chance
      • Parilament is liable to pass statutes in anticipation of future developments in the law.  But precedent cannot deal with a situation until after an event has already occurred.
    • Precedent creates retrospective law
      • Until a person carries out a certain course of conduct, its impossible for the courts to consider its legality.
        • This means in criminal law a person is found guilty even though his course of conduct was not criminal until carried out.
          • E.g. R VR
    • Precedent is undemocratic
      • Precdents law created by judges. Judges are just simple employees of the state and are not elected.


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