Unfortunately, the law of precedent does have its downfalls. Despite the disadvantage of precedent, the law of precedent still holds true and important in our modern society. Some of the shortcomings of precedent are the following: As time changes, precedents need to change in order to accommodate society's new values and laws. One of the more common drawbacks to the law of precedent is that over time, a law may be found as no longer applicable, or on the other hand, a new decision may be found in a trial which can also be undesirable. The courts are not supposed to create new policies as this would lead on to deal with new problems, that is the role of the legislature. This drawback is prevalent in two forms: The first is the ruling of a court case, and the second is the sentencing or judicial decision of a case. In order to examine this further here is an example.
A long time ago, sexual harassment at the work place was virtually unheard of or it was ignored altogether. The case probably would not even make it to court. At present if a boss (traditionally a man) simply inquires about an employee's sexual status (traditionally the woman) is considered sexual harassment, and the boss would be found guilty of the charge. This is a classic example of the changing views of society. Sixty plus years ago, women seemingly meant nothing to the world. They were considered tools, possessions, and frequently were not referred to at all by the law. However, with the long battle for the realisation of woman's rights, our society and our laws have respect females. Unfortunately, sexual harassment at the workplace is going too far. It used to be a threat of one's job in return for sexual favours. Presently, if you even simply inquire about an employee's sexual status is deemed as sexual harassment. There are problems with old laws and precedents that may need to be rectified. Previous decisions by judges do not necessarily embody the law. Here is where a judge's duty is to apply the law, not another justice's determination of it. "The law and the opinion of the judge may not always be one and the same." For judges, it is important to correct any precedent that is now viewed as a mistake. Making sure that precedents are kept "in check" is a vital role of the courts.
The second case of changing precedent is that of court sentencing and decision making. This part of precedent troubles many people, court cases are getting out of hand! Here offered is another
example. Fifty years ago, the laws of capital punishment would have hanged a convicted serial killer. Yet more recently, the taking of a convicted killer's life is deemed as cruel and unusual punishment, even if he murdered the Prime Minister on national television. If that example is too drastic, here is another, more reasonable example. In England, court rulings dealing with personal injury or damages are slowly escalating over time, more cases like these have arisen after the trend from across the Atlantic has spread here, where solicitors work on a ‘no win, no fee’ basis. Here are a couple of examples from America, which have been in the media: A lady gets 8 million dollars for spilling hot coffee from McDonalds' on herself; O.J. Simpson is out a total of 33 million dollars for the wrongful deaths of Nicole Brown-Simpson and Ronald Goldman. These rulings are ludicrous, and I wonder when these sort of cases and ruling’s will follow here! With such continuing changes in the precedents due to an evolving and growing society, it will not be long before our court system has gone too far with its rulings.
A recent and very big complication in the law of precedent is the notion of social facts. When social facts are weighed against historical facts in a court case, conflicting solutions may occur. This means that when looking specifically at the historical facts, a judge may use a precedent to guide his or her ruling, however, once adding social facts to the case (by use of expert witnesses, statistics, etc.) the decision of that case may no longer be cut and dry. There may be certain circumstances that may come to play a vital role in the decision of a trial. Therefore, the use of a precedent may be inappropriate. This is a problem because even though social facts may change the view of a case, stare decisis obliges a court to apply precedent to a case even though it is wrong. "Whether the present case resembles the plain case ‘sufficiently' and in the ‘relevant' aspects" is what judges need to decide with the twist of extrinsic evidence. With the addition of social facts to the judicial system, stare decisis is "no longer an article of faith." Before too much criticism is allowed regarding the law of precedent, one must ask if there is a more feasible solution. As far as I can see, there is not. There are a countless number of important uses and applications for stare decisis. It uses "past experience to guide present conduct." It promotes the rule of law, not men. The law of precedent also minimises judicial discretion and creativity. Stare decisis is also an instrument of stability that assures equality in the law. A vital aspect for civilised societies is the certainty and continuity of the law. The law of precedent has managed to stay intact and active despite the changes and challenges of society over hundreds of years. Yet as there is no guarantee that what is law today will still be a valid law tomorrow.
Despite this possibility, stare decisis has managed to maintain a firm foothold in our judicial system. After a brief view of the pros and cons of stare decisis, one will find that the law of precedents is not perfect, however it is the best solution to the problem of administering justice fairly in our society. "For a law with no certainty is no law at all."
Bibliography
Author: Jeremy Waldron
- http://www.keele.ac.uk/socs/ks40/hurst2.htm
