The Advantages And Weaknesses Of Case Law Laws Essay

From using theory of doctrine of judicial precedent, I can conclude that using circumstance legislation as a source of law brings more advantages than advantages. There are numerous strengths and weaknesses which we can identify from it.

Based on using judicial precedent concept, it may bring us uniformity which means everyone is cared for equally due to the bound decision created by the judges previously in similar situation to the near future cases. Since it is bound by the pervious circumstance, and thus same decision will be made and equal consequence will be punished for many who loss the case bases on days gone by circumstances. Example like Balfour circumstance and Merrit case, where the decision made in Merrit case is bound to the Balfour case. It could be used by legal representatives as a reference to create certainty which permit them to advice their client for the probability of winning and shedding a case by forecasting the predictable consequence of the case based on the binding result of the previous case. The predictable result and probability of losing an instance allow the consumer to settle it with privately with calmness. If the likelihood of winning a case is higher, it satisfy the client with higher confident. Example for Balfour circumstance and Merrit circumstance, since there are similar circumstance occurred in the past, the lawyer can in fact based on the previous case advice Neglect Merrit about the percentage of winning the case.

Furthermore, using case legislations as a way to obtain law permits the view of the circumstance to be settling in a nutshell period as a result of binding precedent which is much more efficient. Shorter amount of settling a case will certainly reduce the legal cost paid by the client. Example for Balfour circumstance and Merrit circumstance, since there are similar facts between both situations, therefore less time and cost needed for judging that circumstance. Using binding precedent principle, it totally avoid discrimination whereby the The personality of judges will not influence the results of dispute in courtroom as the decision created by the judges will follow earlier decisions. Whether they are discrimination between the judges for the plaintiff or accused, the judges still have to check out the binding decisions. Example for the Merrit case, if the judges know the plaintiff, your choice made will be still destined with the Balfour case. This can provide a fair judgment of circumstance for either defendant or plaintiff.

Moreover, if there are certain circumstance with are unbinding, this provides the chance for the judges to build and improved new rules. If the previous rules made cant meet up with the new circumstances and the changing need of contemporary society, new guidelines can be created or improved by appealing the situations to the Courtroom of Appeal. Example of case Donoghue v Stevenson which creating the new concept of neighbor to clarify the duty of care and attention in more details compare to previous case Heaven v Pender. Through the use of judicial precedent principle, it can minimize the mistake made by the judges given that they may use the similar circumstance as guideline for them to judge the case. This can slow up the possibility of judges making miscalculation and contribute to the fair common sense of case. Last by not least the main advantage is the fact the decision made are unusually useful and workable in mother nature because it is based on real problem, real people and real situation which is unlike the legislation created by the Parliament which not absolutely all your choice are functional and workable in character.

Everything will need to have their weaknesses behind of the durability. Judicial precedent is good but something it could be rigidity too this means not adaptable. If there are similar circumstance occurred before, we have to follow the first precedent although which may sometimes may cause hardship. There is absolutely no flexibility to improve the first precedent once it is established. Although your choice is bad, it is binding until it is overruled. Exemplory case of case Donoghue and Stevenson which the plaintiff unable to successfully sued the defendant if plaintiff didn't make appeal to the home of Lord to overruled your choice. There are way too many cases occurred before. It is heavy and complicated for the legal professional to learn all the situation rules since there are too many cases occurred in the past. If similar circumstance occurred, the attorney has to assess many factors that will vary from the first precedent to be able to overruled it and get in the case.

The aspect changes rapidly. We've grasped that the judicial precedent is practical in mother nature. However, the immediate changes in the nature which can be too problematic for your body of case regulation to expand quickly enough to meet up with the modern demands. If there are new details in case legislations and that have the potential to overrule the first precedent, the truth must be brought to the court of appeal. There are a lot of procedures which have to be done before appealing and thus it can't be change for a while period. Example of circumstance Donoghue v Stevenson, the task is too much time for the plaintiff to make charm to the Court docket of Charm and even House of Lord, the accused died within the period, and the situation was closed down. The judicial precedent system depends on the litigation and litigation tends to be gradual and expensive since there are extensive procedures have to be done. Furthermore, from the judicial precedent, we know that only the ration of circumstance is binding in a case. However, the problems are that sometimes it is difficult to check it out which it is the ration decidenti and which the obiter dictum of the circumstance is since we know that obiter dictum is merely feedback from the situations and it is only for references purpose.

Citation:

Business Legislations lecture notes

http://sixthformlaw. info/01_modules/mod2/2_1_1_precedent_technicians/08_precedent_advantages_dis. htm

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