What Are The Advantages And Disadvantages Of Judicial Precedent
(a)Define the doctrine of judicial precedent.
Antoine states that, “the common law or case law describes the legal principles deriving from examining the judgments of cases where there are no applicable statutes.” This has been a part of the English Legal system for centuries and since the thirteen (13th) century can be seen in law reporting. Also, in the nineteenth (19th) century the modern doctrine emerged the binding precedent establishing an official and reliable law reporting system. The Common law unique characteristic as a legal source is the ad hoc nature. This describes the impetus and scientific rationale for the development of the common law case-by-case basis (pg.118). As the body of the common law developed, it becomes more rigid and identifiable and has been solidified as a result of the system of case reporting (pg.117).
Moreover, the doctrine of judicial precedent refers to judges referring back to past decisions to help them consider similar cases where the law and facts are alike. However, before judges reach the peak of their decision
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However, the advantages bring certainty which allows legal professionals to give more helpful advice such as merits of case and outcome of case regarding the law to their clients. Fairness, so like cases can be dealt with in a similar way and allows parties to have access to justice and the courts. Flexibility allows the changing of law with time.
Three disadvantages includes: Rigidity in the legal process that may spring from the Judge’s attitude and the declaratory theory. However, the reported cases complexity may also be a disadvantage because it makes the location of legal principles difficult to attend to. Finally, the danger of illogical allows the technical distinctions in the process of distinguishing precedent which may lead to excessive legalism and
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