Critically examine the doctrine of Precedent. Giving reasons for your view and using cases to illustrate your answer, consider whether the doctrine strikes the best balance between certainty and flexibility.

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Critically examine the doctrine of Precedent. Giving reasons for your view and using cases to illustrate your answer, consider whether the doctrine strikes the best balance between certainty and flexibility.

The doctrine of precedent is fundamental to the English Legal System, it provides both the procedural and conceptual underpinnings that have developed and continue to develop English law. The English legal system is based upon a common law system where there is no specific constitution and the law is developed largely through adversarial court cases rather than parliamentary involvement. It is often considered to be a strength of English law that it is built upon concrete examples provided by cases rather than through hypothetical models. The doctrine of precedent plays a vital role within this system, being charged with ensuring that the law evolves and changes with the pace of society and modern thinking in a consistent manner.

As the question alludes to, the balance between certainty and flexibility is an inherent trade off within any legal system. Legal certainty allows citizens, companies and legal professionals to act with confidence, providing a stable environment to operate in. However in providing legal certainty there is a risk of rigidity, placing the law in such a state that it cannot respond to individual circumstances and perhaps more significantly a state where it cannot evolve to fulfil future demands. Thus a degree of flexibility is also crucial. Decisions made in higher courts have the prospect of being able to not agree with precedents acutely, if tools such as statutory interpretation are utilised. The doctrine of precedent will be evaluated against these criteria throughout this work and an evaluation made as to whether a good balance is achieved both in theory and in practice.

In order to understand how the concepts of legal flexibility and certainty are affected by the doctrine of precedent a solid understanding of how it operates in both theory and practice is required. This work will proceed on this basis, describing the doctrine, highlighting its strengths and weaknesses and assessing how it supports or undermines legal flexibility and certainty through each aspect.

Simplistically the doctrine of judicial precedent is concerned with the value and importance of case law. It has already been established that the common law system has, and still is, evolved through experience, through decisions in individual cases. The principle that underpins the notion of precedent is utterly logical, where a point has arisen and been decided upon before it is sensible to look to that decision for guidance. This places a lay person’s definition on the concept of precedent, the idea that what has been done before should be done again. At this level precedent provides certainty, where prior examples are followed case results can be predicted. The legal situation however is far more intricate.

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In order to form examples and therefore precedent to be truly useful principles must be derived from them. Where underpinning, generic principles can be identified precedent can provide a greater level of certainty and greater guidance in future cases. An example may be made of Donoghue v Stevenson whereby the concept of a ‘duty of care’ was created, a concept that is fundamental to the law of negligence. Practitioners and academics may speculate as to a legal principle that is developing but it takes a specific case to settle the issue (Holland and Webb, 1999), to provide certainty. However, significantly ...

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