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Case Law, Advantages / disadvantages

Case Law, Advantages / disadvantages
Module

English Legal System (LAW1102)

119 Documents
Students shared 119 documents in this course
Academic year: 2021/2022
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Middlesex University London

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Case Law

Advantages of case law 1) Certainty 2) Detailed practical rules 3) Free market in legal ideas 4) Flexibility

➔ Certainty Judicial precedent means litigants can assume that like cases will be treated alike, rather than judges making their own random decisions, which nobody could predict. This helps people to plan their affairs.

➔ Detailed practical rules Case law is a response to real situations, as opposed to statutes, which may be more heavily based on theory and logic. Case law shows the detailed application of the law to various circumstances, and thus gives more information than statute. The academic Roscoe Pound (1963) has written on the doctrine of precedent:

  • Growth is ensured in that the limits of the principle are not fixed authoritatively once and for all but are discovered gradually by a process of inclusion and exclusion as cases arise which bring out its practical workings and prove how far it may be made to do justice in its actual operation.

➔ Free market in legal ideas The right-wing philosopher Hayek (1982) has argued that there should be as little legislation as possible, with case law becoming the main source of law. He sees case law as developing in line with market forces: if the ratio of a case is seen not to work, it will be abandoned; if it works, it will be followed. In this way the law can develop in response to demand. Hayek sees statute law as imposed by social planners, forcing their views on society whether the majority of people like it or not, and threatening the liberty of the individual.

➔ Flexibility Law needs to be flexible to meet the needs of a changing society, and case law can make changes far more quickly than Parliament. The most obvious signs of this are the radical changes the House of Lords made in the field of criminal law, following announcing in 1966 that its judges would no longer be bound by their own decisions.

Disadvantages of case law 1) Complexity and volume 2) Rigid 3) Illogical distinctions 4) Unpredictable 5) Unsystematic progression 6) Dependence on chance 7) Lack of research 8) Retrospective effect

KEY CASE

Case: SW v United Kingdom (1995) Facts: Two men, who had been convicted of the rape and attempted rape of their wives, brought a case before the European Court of Human Rights, alleging that their convictions violated Art. 7 of the European Convention on Human Rights, which provides that criminal laws should not have retrospective effect. The men argued that when the incidents which gave rise to

their convictions happened, it was not a crime for a man to force his wife to have sex; it only became a crime after the decision in R v R (1991). The court dismissed the men’s argument: Art. 7 did not prevent the courts from clarifying the principles of criminal liability, providing the developments could be clearly foreseen. In this case, there had been mounting criticism of the previous law, and a series of cases which had chipped away at the marital rape exemption, before the R v R decision.

Legal principle There is no breach of the European Convention when courts clarify the law, provided legal developments can be foreseen.

➔ Complexity and volume There are hundreds of thousands of decided cases, comprising several thousand volumes of law reports, and more are added all the time. With the development of the internet, almost every decided case is available online or in legal databases. Judgments themselves are long, with many judges making no attempt at readability, and the ratio decidendi of a case may be buried in a sea of irrelevant material. This can make it very difficult to pinpoint appropriate principles. A possible solution to these difficulties would be to follow the example of some European systems, where courts hand down a single concise judgment with no dissenting judgments. However, some of these decisions can become so concise that lawyers are required to do considerable research around the specific words used to discover the legal impact of the case, because no detailed explanation is provided by the judges.

➔ Rigid The rules of judicial precedent mean that judges should follow a binding precedent even where they think it is bad law, or inappropriate. This can mean that bad judicial decisions are perpetuated for a long time before they come before a court high enough to have the power to overrule them.

➔ Illogical distinctions The fact that binding precedents must be followed unless the facts of the case are significantly different can lead to judges making minute distinctions between the facts of a previous case and the case before them, so that they can distinguish a precedent which they consider inappropriate. This in turn leads to a mass of cases all establishing different precedents in very similar circumstances, and further complicates the law.

➔ Unpredictable The advantages of certainty can be lost if too many of the kind of illogical distinctions referred to above are made, and it may be impossible to work out which precedents will be applied to a new case.

➔ Dependence on chance Case law changes only in response to those cases brought before it, so important changes may not be made unless someone has the money and determination to push a case far enough through the appeal system to allow a new precedent to be created.

➔ Unsystematic progression Case law develops according to the facts of each case and so does not provide a comprehensive code. A whole series of rules can be built on one case, and if this is overruled the whole structure can collapse.

➔ Lack of research

common law. The court is likely to do this where a rejection of the appeal will not cause substantial injustice.

➔ Undemocratic Lord Scarman pointed out in Stock v Jones (1978) that the judge cannot match the experience and vision of the legislator; and that unlike the legislator the judge is not answerable to the people. Theories, like Griffith’s, which suggest that precedent can actually give judges a good deal of discretion, and allow them to decide cases on grounds of political and social policy, raise the question of whether judges, who are unelected, should have such freedom.

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Case Law, Advantages / disadvantages

Module: English Legal System (LAW1102)

119 Documents
Students shared 119 documents in this course

University: Middlesex University London

Was this document helpful?
Case Law
Advantages of case law
1) Certainty
2) Detailed practical rules
3) Free market in legal ideas
4) Flexibility
➔Certainty
Judicial precedent means litigants can assume that like cases will be treated alike, rather than
judges making their own random decisions, which nobody could predict. This helps people to
plan their affairs.
➔Detailed practical rules
Case law is a response to real situations, as opposed to statutes, which may be more heavily
based on theory and logic. Case law shows the detailed application of the law to various
circumstances, and thus gives more information than statute. The academic Roscoe Pound
(1963) has written on the doctrine of precedent:
- Growth is ensured in that the limits of the principle are not fixed authoritatively once
and for all but are discovered gradually by a process of inclusion and exclusion as cases
arise which bring out its practical workings and prove how far it may be made to do
justice in its actual operation.
➔Free market in legal ideas
The right-wing philosopher Hayek (1982) has argued that there should be as little legislation as
possible, with case law becoming the main source of law. He sees case law as developing in line
with market forces: if the ratio of a case is seen not to work, it will be abandoned; if it works, it
will be followed. In this way the law can develop in response to demand. Hayek sees statute law
as imposed by social planners, forcing their views on society whether the majority of people like
it or not, and threatening the liberty of the individual.
➔Flexibility
Law needs to be flexible to meet the needs of a changing society, and case law can make changes
far more quickly than Parliament. The most obvious signs of this are the radical changes the
House of Lords made in the field of criminal law, following announcing in 1966 that its judges
would no longer be bound by their own decisions.
Disadvantages of case law
1) Complexity and volume
2) Rigid
3) Illogical distinctions
4) Unpredictable
5) Unsystematic progression
6) Dependence on chance
7) Lack of research
8) Retrospective effect
KEY CASE
Case: SW v United Kingdom (1995)
Facts: Two men, who had been convicted of the rape and attempted rape of their wives,
brought a case before the European Court of Human Rights, alleging that their convictions
violated Art. 7 of the European Convention on Human Rights, which provides that criminal laws
should not have retrospective effect. The men argued that when the incidents which gave rise to

Students also viewed

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