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Judicial Precedent A) Explain what is meant by the doctrine of precedent. (11) B) What are the advantages and disadvantages of the doctrine of precedent? (14) A) The doctrine of judicial precedent is at the heart of the common law system of rights and duties. The courts are bound (within limits) by prior decisions of superior courts. One level includes stare decisis, this means to stand by what has been previously decided in a previous case and that this decision should be kept to and that you should in no way try to unsettle the established. This can benefit the system of common law because it supports the idea of fairness and it therefore provides certainty in the law and also consistency in the law. Another aspect of stare decisis that concerns the court hierarchy is that decisions that are made in the higher court must be followed by the lower courts and the same decisions must be followed at all time. This leads me on to my next point about the court hierarchy. Under stare decisis the courts must follow the judgments that were made by their superior courts. In the civil system, this is as follows. The main court is the European Court of Justice (ECJ). The decisions that are made here bind all of the lower courts to it. For example a decision that was made in the ECJ must be followed in the House of Lords (HOL.) ...read more.


The practise statement was first used in the case between Conway vs. Rimmer in 1968. The first major case that the practise statement was used on was the Harrington vs. British Railways case in 1972. The use of the practise statement changed during the 1980's and 1990's because of an increasing willingness to use the practise statement. B) There are a great deal of advantages and disadvantages to the doctrine of precedent. For the advantages, there is now certainty thanks to the practise statement, this stated that when there is a decision made about a case, and then a similar case should follow the same decision that was made in the previous case. There is also now consistency and fairness thanks to the doctrine of precedent because there is the fact that the results of the case or the outcome of the case should be the same for everybody. This was shown in the cases Donoghne vs. Stevenson and Daniels vs. White. The decision that was made in the Donoghne vs. Stevenson case was again followed and made in the Daniels vs. White case, it was fair to make the decision based on this case because they are too similar cases and the outcome should be the same and that is when the decision is consistent, no matter what the case is, just so long as the details are similar. There is now a flexibility that is seen throughout the court system, for example the practise statement now shows that the ...read more.


There is also a disadvantage of clarity and reform, could the decisions be changed from a previous date because the law may have changed and to use the same decision for a case nowadays that was used around 50 years ago would be wrong because obviously the laws have changed since back then. The question that has arisen time and time again is; should the COA be bound by its past decisions or should it be able to change its decisions to suite the particular case that is going on? The answer that should come from this is that the COA should be bound like all other courts and stick to past decisions that have been made, but once again the problem with this is that not every case is the same and can not all follow the same structure as there are different points to consider in ever case that comes forward to a court. Finally the other disadvantage that has arisen is that is the decision that is being made in the best interests of the public, as there could be a judgment that upsets the public and one that they could be strongly opposed to, does the fact that there could be trouble from a decision that has been made make it acceptable to change the judgment of a court or should all courts follow the decisions that it is bound by, no matter what the public opinion may be. ?? ?? ?? ?? Andrew Penman 12C ...read more.

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