Disadvantages of judicial precedent

• What is a disadvantage of judicial precedent?

  law becomes rigid
• Explain why the principle of judicial precedent can be considered a disadvantage.

  the principle of binding precedent means that when a decision has been made it must be followed in future cases, even if the decision was bad law or inappropriate
• When does a precedent change in the judicial system?

  when a similar case reaches a higher court to over rule it
• What is another disadvantage?

  it is complex due to the volume of case law
• Explain why the complexity of judicial precedent is a disadvantage.

  there are several thousand law reports with more and more added all the time
• Why does the increasing number of law reports pose a challenge in the context of judicial precedent?

  Although they are now more accessible online, this makes it very dificult to find cases
• How does the length of judgments impact the usability of judicial precedent?

  Judgements are lengthy and this makes it harder to find the ratio decidendi of a case
• What is a third disadvantage of judicial precedent?

  contradicts the separation of powers
• What did Montesquie write about the 3 powers?

  The 3 powers must remain separate
• How does judicial precedent contradict the principle of the separation of powers?

  when judges are making a decision in a case, they are creating law rather than just applying it
• Why is it a problem when judges are creating the law?

  The courts are taking on the role of Parliament by making the law
• How are judges seen when the courts are taking on the role of Parliament?

  judges are seen to have to much power as they are able to make the law
• How do people see the fact that judges can make the law?

  Many view this as unsuitable given as judges are more out of touch with society then Mps and have not been elected as law-makers
• What is a final disadvantage?

  it creates uncertainty
• What rae the 3 ways judges can avoid precedents?

  over-ruling, distinguishing or reversing
• What does avoiding precedent lead to?

  law changing and becoming uncertain as illogical distinctions may be made
• How are the parties left?

  parties are left not knowing which precedent will be used in their case