Advantages And Disadvantages Of Law

Common law is a legal system that the court is bound to follow the decisions used in antecedent case; this rule is called stare decisis. Common law legal system initiated in England and spread to countries that used to be colonized by England which includes, United States, Malaysia, Singapore, Pakistan, Sri Lanka, India, Ghana, Cameroon, Canada, Ireland, New Zealand, South Africa, Hong Kong and Australia. However, common law system has both advantage and disadvantage.

My opinion towards the question that asked “whether the doctrine of precedent mean that judges in common law system make law or not” is that, I think the judges in common law do make law. Both civil law and common law have an assumption that the judges did not make the laws,

Firstly, the advantage of judicial precedent is that, it provides greater certainty. Judicial precedent act like guidance, thus it will preclude judges from making mistakes. Secondly, the making of law in the case that already decided gives opportunities for growth and legal development that Parliament cannot provide, in another word, doctrine of binding precedent is faster to undertake development of law. For example, In Prescott v Birmingham Corporation [1954] 3 All ER 698, the Court of Appeal stated that a local authority do not have power giving free bus travel to state retirement pensioners. Parliament hastily passed the Public Service Vehicles (Travel Concessions) Act 1995, legitimized this project. Thirdly, judicial precedent deals with real situations, in Miliangos v George Frank(Textiles) Ltd [1975] 3 All ER 801, Lord Wilberforve said: “ Questions as to the recovery of debts or of damages depend so much on individual mixtures of facts and merits as to make them more suitable for progressive solutions in the courts”. Fourthly, the precedent works apart from the party-political arena. The disadvantages of judicial law-making are the haphazardness of the process and judges are ill-equipped in making the law. The statement that said “the process is haphazard” has three main points to it. Firstly, the need for case to arise, Lord Diplock said, in Gouriet v Union of Post Office Workers [1977] 3 All ER70, “courts of justice do not act of their own motion. In our legal system it is their function to stand idly by until their aid is invoked…”. Law-making in precedent form does not only need a suitable set of facts to be arisen, but it also need the parties to be willing and be able to litigate to a adequate point in the hierarchy of the courts to make sure that any existing, and undesirable authorities can be overruled or left out. Secondly, “one party may ‘buy off’ another”