Strengths of the Doctrine of Precedent:
One strength of the operation of precedent is that it provides for a level of consistency and certainty. Through looking back at past decisions and cases with similar material facts, judges are able to make decisions in an efficient manner if they believe that the precedent previously established was reasonable and just. In doing so, this provides a level of consistency within common law. Parties can also examine past cases and somewhat predict the outcome of their case with some degree of certainty through being aware of past legal judgements.
Another strength of precedent is the level of flexibility available. Laws in general should be relevant and reflect the current needs of society. As such, there are methods available to judges (general in superior courts) if they wish to disagree with previous decisions or update precedent for more appropriate use. For example, higher courts can choose to reverse decisions on appeal, overrule previous decision made in lower court and disapprove of judgements made by courts on the same level in order to provide a just outcome. Lower courts, despite being more restricted, have the option of distinguishing cases if they believe material facts are not similar. This flexibility ensures that common law can be updated and remain relevant.
Another strength of precedent is that, in its operation, can prevent bias or prejudice from judges. In some cases whereby the outcome is not determined by a jury of twelve peers, judges are left with the decision making process. This can, at rare times, create issues if there is bias or prejudice involved. The notion of stare decisis within the doctrine of precedent ensures that judges need to apply the judgement of previous decisions provided that material facts are similar. Although flexibility exists for higher courts, this safeguards parties from being exposed to unfair decisions made due to bias.
Weaknesses of the Doctrine of Precedent:
A clear weakness of the operation of precedent is the inflexible nature of binding precedent. Lower courts in the hierarchy are bound by existing precedent if they cannot distinguish material facts. Judgements from these previous cases may be outdated or not take into consideration current social values however lower court judges may still be bound to follow them. This creates a system of law making that is rigid and not open to change.
Another weakness in the operation of precedent is that no two cases are the same. Despite having the ability to share similar material facts; it is arguable that no two cases can be exactly the same. However, it is expected that if enough similar material facts exists, the outcome of a previous decision to uphold the notion of stare decisis, must be applied to the current dispute. This can lead to unjust outcomes if lower courts cannot distinguish the case but yet are bound to following precedent or superior courts are not willing to undertake a law making role.
Lastly, precedent can only operate if a case is brought before the courts. Unlike legislation made by parliament, common law can only be developed through a dispute being brought forward. This can affect its effectiveness as it cannot provide preventative measures only reactive measures to provide remedies or rectify damage that has already occurred.
One strength of the operation of precedent is that it provides for a level of consistency and certainty. Through looking back at past decisions and cases with similar material facts, judges are able to make decisions in an efficient manner if they believe that the precedent previously established was reasonable and just. In doing so, this provides a level of consistency within common law. Parties can also examine past cases and somewhat predict the outcome of their case with some degree of certainty through being aware of past legal judgements.
Another strength of precedent is the level of flexibility available. Laws in general should be relevant and reflect the current needs of society. As such, there are methods available to judges (general in superior courts) if they wish to disagree with previous decisions or update precedent for more appropriate use. For example, higher courts can choose to reverse decisions on appeal, overrule previous decision made in lower court and disapprove of judgements made by courts on the same level in order to provide a just outcome. Lower courts, despite being more restricted, have the option of distinguishing cases if they believe material facts are not similar. This flexibility ensures that common law can be updated and remain relevant.
Another strength of precedent is that, in its operation, can prevent bias or prejudice from judges. In some cases whereby the outcome is not determined by a jury of twelve peers, judges are left with the decision making process. This can, at rare times, create issues if there is bias or prejudice involved. The notion of stare decisis within the doctrine of precedent ensures that judges need to apply the judgement of previous decisions provided that material facts are similar. Although flexibility exists for higher courts, this safeguards parties from being exposed to unfair decisions made due to bias.
Weaknesses of the Doctrine of Precedent:
A clear weakness of the operation of precedent is the inflexible nature of binding precedent. Lower courts in the hierarchy are bound by existing precedent if they cannot distinguish material facts. Judgements from these previous cases may be outdated or not take into consideration current social values however lower court judges may still be bound to follow them. This creates a system of law making that is rigid and not open to change.
Another weakness in the operation of precedent is that no two cases are the same. Despite having the ability to share similar material facts; it is arguable that no two cases can be exactly the same. However, it is expected that if enough similar material facts exists, the outcome of a previous decision to uphold the notion of stare decisis, must be applied to the current dispute. This can lead to unjust outcomes if lower courts cannot distinguish the case but yet are bound to following precedent or superior courts are not willing to undertake a law making role.
Lastly, precedent can only operate if a case is brought before the courts. Unlike legislation made by parliament, common law can only be developed through a dispute being brought forward. This can affect its effectiveness as it cannot provide preventative measures only reactive measures to provide remedies or rectify damage that has already occurred.