The Strengths And Weaknesses Of Case Law Law Essay

From using theory of doctrine of judicial precedent, I can conclude that using case law as a source of law brings more advantages than advantages. There are many strengths and weaknesses which we can identify from it.

Based on using judicial precedent principle, it can bring us uniformity which means everyone is treated equally due to the bound decision made by the judges previously in similar situation to the future cases. Since it is bound by the pervious case, and thus same decision will be made and equal punishment will be punished for those who loss the case bases on the past cases. Example like Balfour case [] and Merrit case [] , where the decision made in Merrit case is bound to the Balfour case. It can be used by lawyers as a reference to create certainty which allow them to advice their client for the probability of winning and losing a case by forecasting the predictable result of the case based on the binding result of the previous case. The predictable result and probability of losing a case allow the client to settle it with privately with peace. If the probability of winning a case is higher, it satisfy the client with higher confident. Example for Balfour case and Merrit case, since there are similar case occurred in the past, the lawyer can actually based on the previous case advice Miss Merrit about the percentage of winning the case.

Furthermore, using case law as a source of law enables the judgment of the case to be settling in short period because of the binding precedent which is much more efficient. Shorter period of settling a case will reduce the legal cost paid by the client. Example for Balfour case and Merrit case, since there are similar facts between both cases, therefore less time and cost needed for judging that case. Using binding precedent concept, it totally avoid discrimination whereby the The personality of judges will not influence the outcome of dispute in court as the decision made by the judges is bound to follow previous decisions. Whether they are discrimination between the judges towards the plaintiff or defendant, the judges still have to follow the binding decisions. Example for the Merrit case, if the judges know the plaintiff, the decision made will be still bound with the Balfour case. This can provide a fair judgment of case for either defendant or plaintiff.

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Moreover, if there are certain case with are unbinding, this can provide the opportunity for the judges to create and modified new rules. If the previous rules made can’t meet the new circumstances and the changing need of society, new rules can be created or modified by appealing the cases to the Court of Appeal. Example of case Donoghue v Stevenson [] which creating the new principle of neighbor to clarify the duty of care in more details compare to previous case Heaven v Pender [] . By using judicial precedent concept, it can minimize the mistake made by the judges since they can use the similar case as guideline for them to judge the case. This can reduce the possibility of judges making mistake and contribute to the fair judgment of case. Last by not least the most important advantage is that the decision made are unusually practical and workable in nature because it is based on real problem, real people and real situation which is unlike the legislation created by the Parliament which not all the decision are practical and workable in nature.

Everything must have their weaknesses behind of the strength. Judicial precedent is good but something it can be rigidity too which means not flexible. If there are similar case occurred in the past, we have to follow the first precedent although which may sometimes cause hardship. There is no flexibility to change the first precedent once it is created. Although the decision is bad, it is binding until it is overruled. Example of case Donoghue and Stevenson which the plaintiff unable to successfully sued the defendant if plaintiff did not make appeal to the House of Lord to overruled the decision. There are too many cases occurred in the past. It is bulky and complex for the lawyer to learn all the case law since there are too many cases occurred in the past. If similar case occurred, the lawyer has to analyze many factors that are different from the first precedent in order to overruled it and win in the case.

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The nature changes rapidly. We have understood that the judicial precedent is practical in nature. However, the rapid changes in the nature which are too difficult for the body of case law to grow quickly enough to meet the modern demands. If there are new points in case law and which have the potential to overrule the first precedent, the case must be brought to the court of appeal. There are a lot of procedures that have to be done before appealing and thus it cannot be change in the short term period. Example of case Donoghue v Stevenson, the procedure is too long for the plaintiff to make appeal to the Court of Appeal and even House of Lord, the defendant died within the period, and the case was closed. The judicial precedent system depends on the litigation and litigation tends to be slow and expensive since there are many procedures have to be done. Moreover, from the judicial precedent, we know that only the ration of case is binding in a case. However, the problems are that sometimes it is difficult to check it out which it is the ration decidenti and which the obiter dictum of the case is since we know that obiter dictum is only comments from the cases and it is only for references purpose.

Citation:

Business Law lecture notes

http://sixthformlaw.info/01_modules/mod2/2_1_1_precedent_mechanics/08_precedent_advantages_dis.htm

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