Advantages and Disadvantages of Binding Precedent PROS CONS Judges. Judicial precedent are asked in: MIA QE 2008/3 Q1 (c) State briefly the advantages of the doctrine of binding judicial precedent. Note: disagree. MIA QE 2014/3 Q1 (a) Explain the meaning of binding judicial precedent in the context of unwritten law in Malaysia. If one case has decided a point of law then it is logical that solution will be looked at in the future. precedent: A court decision that is cited as an example or analogy to resolve similar questions of law in later cases. Here are just a few examples of some problems that people could face because of this disadvantage of judicial precedent. There is a lot in Minneapolis which prevents red cars from driving down Lake Street. All other colors are permissible. Utah says that a marriage between cousins is against the law only if they are younger than the age of 65. However the system is not completely rigid as there are devices for some judges to avoid or depart from a binding precedent in certain circumstances. Illogical distinctions. Statues are laws made by the legislature or the law making body. * There is uniformity in the law. imposed restraint in 1966. Binding precedent is a legal rule or principle, articulated by an appellate court, that must be followed by lower courts within its jurisdiction. Judicial precedent offers several disadvantages such as: rigidity, complexity, confusion and injustice. disadvantage of precedent: judges who hear the same type of cases can have a disproportionate role in the development of an area of law. Rigidity. LNER v Berriman Disadvantages Judges can "get around" precedents they don't like by distinguishing on the smallest of facts or differences Precedent allows the law to develop Rv Brown and Rv Wilson Merritt v Merritt and Balfour v Balfour Re Complexity. A precedent is a declaration made of the law by a Judge in deciding a case. 1 Rigid. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. Answer:- The doctrines of binding precedent is concerned with the importance of case laws in English legal system. Binding Precedent. The advantages of litigation is that it sets a binding precedent and one can be tried by a jury. The American Judge, Oliver Wendell said the life of the law has not been logic it Complexity. disadvantage of precedent: it can be difficult to work out what the applicable precedent is from any given case, and how generally the principle from the case can be stated. If one case has decided a point of law then it is logical that solution will be looked at in the future. The advantage of Finally one more disadvantage of the precedent is that it makes the law inflexible. The advantages of litigation is that it sets a binding precedent and one can be tried by a jury. Disadvantages of binding precedent. precedent should operate to allow one maverick decision to beget a whole line. Get your custom essay on. Precedent became a source of law only during British rule in India. It shows respect for the opinion of ones ancestors. The doctrine of judicial precedent in Malaysia is based on stare decisis i.e. not arbitrary. Decisions of International Court of justice are very important source of international law. The doctrine of binding precedent is fundamental to the English legal system. Topic- Discuss the advantages & disadvantages of following the practice of precedent in a legal sense. Answer:- The doctrines of binding precedent is concerned with the importance of case laws in English legal system. This paper discusses how the doctrine of binding precedent operates in the English Courts with its advantages and disadvantages. Click to see full answer. Conclusion: On the other hand major disadvantage is that precedents are considered to be binding in nature; it may be hinder the development of law which is necessary with changes in society. Essentially, once an appellate court reviews a case, it will deliver a written opinion. a Definition of binding precedent. In answering this question it is important to first note that, the doctrine of binding precedent is a fundamental and pervasive feature of the English legal system. Q. MIA QE 2009/3 Q1 (c) Explain how judicial decisions form part of the law of Malaysia. Advantages and Disadvantages of the Doctrine of Precedent . Include 1 case where judges have made new law. Annabelle Chan. Can lead to "bad" decisions being made. Pros And Cons Of Binding Precedent. the respect of that lower court. 2. Lack of flexibility. This paper discusses how the doctrine of binding precedent operates in the English Courts with its advantages and disadvantages. Judgements are very long, and not reliable and the ratio decidendi are difficult to find. Disadvantages of Doctrine of Precedent Rigidity Once a rule is established and its binding even if the decision is thought to be wrong, an altercation, other than by distinguishing is less than satisfactory. o Rigid a rule can remain in place for a long time, even if it is outdated, as change requires a case to come to a higher appeal courts before new rule can come about. DISADVANTAGES OF PRECEDENT. It states that judges are to follow the court's previous decisions when deciding cases with the same facts. The idea is to streamline the legal system so that courts dont waste time and resources trying to relitigate the same type of case from scratch each time. The first disadvantages of doctrine of binding judicial precedent is rigidity. bound by the decisions of the superior courts. It is a process which is followed by the judges to take decision. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. Generally the precedent is a very important tool for the judges. too much on how to decide. advantage of precedent: courts have to use reason and logic in applying the law, and so that their decisions are not merely arbitrary. The use of legal precedent helps ensure court rulings remain consistent among similar cases. 6 Rickett (op. Open Document. Abstract. Disadvantages of binding precedent: Complexities and Voluminous: Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. The doctrine of precedent is an important feature of judge-made law (common law). The people can aim their actions with faith with the results in greater certainty. ).Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. With binding precedent, there is only one speech, which is a combination of more than three judges rulings. Illogical distinctions. (ii) Undue influence; (iii) Fraud; (iv) Misrepresentation; princess margaret, countess of snowdon cause of death. The advantages include: certainty, consistency, preciseness, and time-saving. Binding precedent entails a lower court abiding to prior legal decisions, rules or principles made regarding similar cases by a higher court within a particular jurisdiction. certain advantages and disadvantages that the doctrine of precedent bestows upon businesses and Commerce. One of the sources of law is legislation which means rulemaking. The advantages are certainty, practicality and flexibility. There are advantages and disadvantages of binding precedent. Every court is bound to follow any decisions made by a court above it in the hierarchy and appeal courts are generally bound by their own decisions, if the facts are similar. This principle is known as Stare decisis, which essentially means to stand by the decided matters. A disadvantage of precedent is that rigidity and inflexibility may develop where judges are reluctant to depart out-of-date or inappropriate precedents. This paper aims to analyze the issues concerning the implementation of binding precedent in Malaysian cases, and propose a re-evaluation of the binding precedent doctrine. As lower courts must follow decisions of higher courts according to the rules of judicial precedent, bad decisions made in the past may be perpetuated. to stand by what has been decided. 9 Pages. In fact binding precedents can hinder the development of law. advantage of precedent: having precedent facilitates the development of a coherent body of legal principles that can be used in the future. The harsh rules of judicial precedents might create injustice in individual cases. This could lead to unjust or absurd outcomes, as judges are restricted, and must follow the past precedent even if they disagree with the outcome. Advantages and Disadvantages of the Doctrine of Precedent . the difference between ratio decidendi (the statement of legal principles material to the decision) and obiter dictum (the discussion of legal principles raised in argument but not material to the decision). that the binding element in a future case is the ratio 2098 Words. Binding precedents can make the law rigid. Answer (1 of 3): The doctrine of precedent has its origin in the need for certainty of judge made laws also known as the common law, in the administration of justice. A Judicial precedent is the principle of law on which Judicial decision is based. Precedent is based on stare decisis, stand by what is decided. Judicial precedence ( Also referred to as the Doctrine of Precedent or Stare decisis) can simply be described as judge made laws. Slowness of growth. The advantage of the doctrine of precedent is that it provides certainty and predictability. 1. The Anglo-American common-law tradition is built on the doctrine of Stare Decisis ("stand by decided matters"), which directs a court to look to past decisions for guidance on how to decide a case before it. and people see justice being done. It is also important to mention in the effect of the Human Rights Act 1998 on judicial precedent. (a) There are certain advantages and disadvantages in applying the system of binding judicial precedents. The doctrine of binding precedent is fundamental to the English legal system. The case-law method is sometimes said to be flexible. In this section you have seen: that not everything in a court case sets a precedent. Statues are laws made by the legislature or the law making body. In state and federal courts in the United States of America, Rigidity which mean bad principle is binding where judicial is limit. Binding precedent is a legal rule or principle, articulated by an appellate court, that must be followed by lower courts within its jurisdiction.Essentially, once an appellate court reviews a case, it will deliver a written opinion.This written opinion will include, among other things, the courts determination on some legal matter. 6. If the precedent was set before the Human Rights Act came into force, the precedent may be contrary to it. Include 1 case where judges have made new law. Judicial precedent or decision is the primary source of law. Judgements are very long, and not reliable and the ratio decidendi are difficult to find. Binding Precedent Doctrine Advantages and Disadvantages Introduction The concept of a binding precedent is basically a remnant of the common law that originated from the English judicial system, a system which is similarly adhered to by Australia. The use of distinguishing can lead to 'hair-splitting' so some areas of law have become complex, The differences between some laws are very small and can appear to be illogical. Illogical distinctions. Technically means cases where the material facts are the same, a court must follow the prior decision of a higher court, and its own prior decisions and prior decision of a court of the same level. Disadvantages of binding precedent: Complexities and Voluminous: Hundreds of thousands of decided cases comprise many thousands of pages of law reports and more added all the time. A lower courts must follow a prior precedent even it is wrong and also the cases may not go on for appeal to a higher court. This does not give it enough flexibility in handling complex cases. In India, it is commonly known as the concept of precedent. p.148) canvasses the possibility of a fourth exception: "The Court in the Bristol Aeroplane case as to stare decisis is still binding on the Court of Appeal." The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. Disadvantages: o Complexity and volume - a judgement from an appeal courts may contain three or five separate judgements which may differ from each other. Furthermore, another disadvantage of the doctrine of the judicial precedents is injustice. The concept of binding precedent is not as much compelling as its name implies. To this end, courts are bound to adhere to prior decisions made by a higher court on a similar legal matter. Binding precedent means that a Judicial precedent offers the legal system access to consistency and predictability. The first disadvantages of doctrine of binding judicial precedent is rigidity. Stare decisis is a legal doctrine that, in theory, keeps consistency between court decisions on similar cases. Both advantages and disadvantages of the system of precedent are considered. The binding precedent is a legal rule made in a superior court of the hierarchy, the rest of courts in hierarchy below the court must follow the rule. The Government of India Act 1935 established the Federal court and Privy council, thus the decision of the federal court was binding on all courts below it. Note: disagree. legal development. The advantage of Lack of flexibility . -Why is this a disadvantage? Judicial precedent can be very rigid. Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given case is similar to another which follows it. Ridgity: judicial precedents forces judges to stand by a previous decision, this encourages bad judicial decisions to perpetuate for a long time before a successful appeal is heard to overrule setting a new precedent. State three advantages of applying this system. This written opinion will include, among other things, the courts determination on some legal matter. (ii) Undue influence; (iii) Fraud; (iv) Misrepresentation; For example, the decisions on a case made by the high court should be followed by A precedent is a declaration made of the law by a Judge in deciding a case. What Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. It also offers the judicial system a certain measure of flexibility. As for complexity, it increases the costs and time taken for litigation through research. The disadvantage is that it is expensive. Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given case is similar to another which follows it. However a judge is not so free where there is a binding precedent. Binding precedent entails a lower court abiding to prior legal decisions, rules or principles made regarding similar cases by a higher court within a particular jurisdiction. advantage of precedent: courts have to use reason and logic in applying the law, and so that their decisions are not merely arbitrary. Lack of Flexibility ; Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given cit. A precedent, in the English Law System, is a previous court decision which another court is bound to follow, by deciding a subsequent case in the same way. The doctrine of binding precedent started under the ruler-ship of King Henry II, in an effort to centralize the administration of justice. This does not give it enough flexibility in handling complex cases. Above are the slides on Advantages and Disadvantages of the Doctrine of Judicial Precedent and the Methods of Avoiding Precedent. Decent Essays. The doctrine of precedent is an important feature of judge-made law (common law). Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as stare decisis, meaning to stand by decided matters. It does not allow for many changes or developments in the law. disadvantage of binding precedentvagabond manga hiatus. The chances of amending the previous result may be lost and the judges must give a good reason for denying the previous precedents. Merits of the Doctrine of Precedent-. For example, the decisions on a case made by the high court should be followed by What It consist of laws found in Judicial decisions. Precedent plays a vital role almost in every legal system. legal development. (3 marks) (b) In relation to the law of contract, write short notes on any two (2) of the following: (i) Coercion. As with judicial precedent itself, there are also a number of advantages and disadvantages to the avoidance of precedent by the courts. Disadvantages of binding precedent. The doctrine of precedent, or stare decisis, is a common practice in the common law systems. Indeed, law is created basing itself on past experiences, but we should take into consideration that we are unable to build more experiences if the first case is binding. Decision taken by a higher court is binding on the lower court and at the same time stand as a precedent to the lower court judgement, which cannot be distorted by the lower court. Some judges may be unwilling to depart from a precedent to make a change in the law. Critically evaluate the advantages and disadvantages of the doctrine of binding precedent as it operates in English courts. Lack of flexibility. The disadvantages include: rigidity, complexity, illogical reasoning (the differences between some cases may be very small and appear illogical), and slow to grow (some areas of the law are unclear or in need of reform). However, this disadvantage is modified by the fact that the House of Lords need to follow its own previous precedent. It is simply an ideal of 'deciding similar cases in a similar manner'1 so that consistency is maintained when deciding cases. The use of distinguishing can lead to 'hair-splitting' so some areas of law have become complex, The differences between some laws are very small and can appear to be illogical. (a) There are certain advantages and disadvantages in applying the system of binding judicial precedents. A binding precedent must be followed if the precedent is relevant and the circumstances of the cases are sufficiently similar. Scanlon, 2004 states that binding precedent is only set, and suppose the material facts in a given case is similar to another which follows it. qikiqtaaluk region population; Uncertainty can also arise where there is more than one precedent that may apply to a particular set of circumstances. Changes in the law will only happen if parties have the courage, persistence and money to appeal. Illogical distinctions. Secondly, the weakness of binding precedent is rigidity. Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc. When a law has been laid down it is set in stone and becomes binding. It is also one of the primary sources of law which has a huge ambit with regards to authorization. Slowness of growth. Disadvantages of Binding Precedent. Because a judge is bound by these previously made decisions, this is referred to as binding precedent. Next is the disadvantages of Doctrine of Stare Decisis which are rigidity, complexity, illogical reasoning and slow to grow. Coming to the discussion on the pros and cons of binding precedent the most important advantage is that ince cases are treated alike, litigants can plan their affairs and come to settlements with a certain amount of confidence. Case law is a response to real situations as opposed to statutes, which may be more heavily based on theory and logic. 3.4.3 Summary of binding precedent. Here is a look at some of them. 16 Advantages and Disadvantages of Judicial Precedent. The disadvantage is that it is expensive. Briefly, the doctrine of binding precedent states that all courts bind all lower courts, and some courts also bind themselves. The disadvantage, however, is that stare decisis can result in a lack of flexibility and an inability of the common law to adapt to changing moral, socio- economic, and political realities resulting in a static body of law. Common law of English legal system mainly is based on judicial precedents. precedent: A court decision that is cited as an example or analogy to resolve similar questions of law in later cases. It means that the highest court in the hierarchy, the Supreme Court is liable to every court which includes itself. i want 6 major advantage( certainty. Customs form another important part of the law. A precedent is a statement made of the law by a Judge in deciding a case. scotland to netherlands covid; liquor store near princeton nj; harbor freight framing square; Manifesto; salt lake valley automotive. Get your custom essay on. What are the disadvantages of judicial precedent? Answer (1 of 3): The doctrine of precedent has its origin in the need for certainty of judge made laws also known as the common law, in the administration of justice. For the purpose of discussing the advantages and disadvantages of dispute. Certainty is one of the greatest advantages of the doctrine. Advantages & disadvantages of following the practice of precedent in a legal sense. consistency,adaptiveness, flexibility, practicality, and speed) and 5 major disadvantages( uncertainty,rigidity,retrieval, haphazard development, undemocratic) associated with binding precedent. The hierarchy of the courts was outlined in chapter 3, but means, superficially at least, that some courts may be bound to follow decisions which have been made in previous cases. Disadvantages of binding precedent. The goal of any justice system should be to create a level of 2. As with every doctrine, the English doctrine of precedents holds both advantages and disadvantages. (3 marks) (b) In relation to the law of contract, write short notes on any two (2) of the following: (i) Coercion. Q. Unformatted text preview: Describe how the doctrine of binding precedent operates and identify and explain the advantages and disadvantages of the doctrine with particukar reference to a certainty and predictability.The principle of 'stare decisis,' which literally means to "stand by what has been decided," underpins the operation of binding precedent and is an essential part of What are the disadvantages of judicial precedent? not arbitrary. advantage of precedent: having precedent facilitates the development of a coherent body of legal principles that can be used in the future. Rigidity. The Anglo-American common-law tradition is built on the doctrine of Stare Decisis ("stand by decided matters"), which directs a court to look to past decisions for guidance on how to decide a case before it.
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