Advantages and disadvantages of the doctrine of precedent
Advantages of Doctrine of Precedent
Certainty
The doctrine of precedent provides certainty as a result of judges using the precedent established in previous cases be applied if the case before the court is similar and the litigants can predict what will be the outcome of the case and their rights and liabilities.
However any legal system must also have some degree of flexibility and balance the need for certainty against flexibility. In the English legal System the House of Lords must have this responsibility to balance the need for flexibility against certainty. In practice it is a very difficult task.
Possibility for Growth
The system provides new rules to be established and old rules to be adapted to new circumstances if those rules are valuable to be extended to new circumstances. This is because the system gives discretion to judges to make new rules or amend existing rules to fit new circumstances by the process of distinguishing.
Practicality
The rules of English case law are not derived from particular theory of law or model and do not deal with hypothetical situations. It is derived from actual cases before the courts.
In addition, English case Law has detailed rules compared to other European legal systems and no code of law will provide the wealth of information the English case law provides.
Disadvantages
Rigidity
Once a rule is established and it's binding even if the decision is thought to be wrong, an altercation, other than by distinguishing is less than satisfactory. However, this disadvantage is modified by the fact that the House of Lords need to follow its own previous precedent. But in practice due to costly litigation and the reluctance of the House of Lords to over rule its own precedent only in exceptional situations the doctrine of precedent is rigid to some extent.
Bulk and Complexity
As the case law has considerable detail even experienced lawyers may overlook some important rule in any case he has to deal with. This is particularly relevant in the areas of law, which has been developed by case law for example the law of tort.
Conflict with Constitution and Slowness of Growth
As the judges have discretion to create new rules and in practice they have considerable power to do so this power of discretion of judges may be in conflict with the separation of powers of enacting legislation by parliament and the court is to interpret the law and not to create laws. As well, it may be in conflict with European Community law and may be in conflict with Human Rights Act 1988. As the litigation is a slow process and it is expensive the case law cannot grow faster to meet modern demands and legislation is necessary to deal with these situations.
My view of the statement ““The doctrine of precedent is absolutely necessary for the orderly functioning of our legal system. Without it, case law would fall into chaos”
As discussed above doctrine of precedent is not absolutely necessary for the orderly functioning of our legal system because it has some disadvantages and it is a part of the overall legal system and other legal system are incorporated in to English Legal system and the primacy of case law is diminished in the current social and political climate. However, I agree to some extent without the doctrine of precedent the case law may be in
Chaos but in my view it is also on the basis of the way it works in practice it may be also a source of chaos in the present legal environment as discussed above.
