Advantages And Disadvantages Of Common Law
QUESTION 1
a)Common law
Common law, also known as case law or precedent, is part of the English law that is largely formed by the decisions previously made by courts and not imposed by legislatures or other government officials.
Following the Norman Conquest in 1066, the Norman Kings and their barons began to unify the previously existing local systems of law and to make it into one which was applied in a uniform way to the country as a whole. More formal court structures and procedures emerged by the 12th century and representatives of the King were sent out to the Shires to administer justice.
The reasoning used to interpret this type of law is known as casuistry, or case-based reasoning. It is a strict, principle-based reasoning that
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Explaining – a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.
b)Discuss the advantages and disadvantages of judicial precedent
Advantages:
There is certainty in the law. By looking at existing precedents, it is possible to forecast what a decision will be and plan accordingly.
There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and adapt to new situations.
Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
Judicial precedent is detailed. There is a wealth of cases which to refer.
Disadvantages:
Difficulties can arise in deciding what the ratio decidendi, particularly if there are a number of reasons.
There may be a considerable wait for a case to come to court for a point to be
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