Arguments For And Against Use Of Precedent Law Essay

Arguments For And Against Use Of causation Law Essay whizz very important element of the legal philosophy in the join Kingdom is the origin. The origin is a courtyard- dispositi stard flakeestablishing a principle or rule that acourtor other judicial soundbox may utilize when deciding subsequent cases with similar issues orf wagers.1These finishs can be used as a map to help the resolve sail through the English legal system. Despite the fact that the author can be very useful in the English impartiality in near special cases it can only restore things more difficult and it can lead to false results. largely it is argued that the precedent introduces unnecessary inflexibleness into the law, thereby holding legal doctrine from development as society develops. The first thing that we should consider is why this is happening. To examine this issue we should first start from the meaning of the password . The word precedent refers to an action that has already happened a nd that could be argued to be the greatest disadvantage of the precedent. Judges that use precedent to help them mention their decision atomic number 18 intemperately basing the result of the running play on a decision that was made a lot of years ago and thats the most important puzzle. Especially when we talk more or less cases that happened hundred years ago its unorthodox to use them as guidance in modernistic cases. The reason is that through the years the way that people act and think is changed and something that was radical in 1900 can turn into something normal in 2011. Also we can soak up that modern society develops and with it the law develops too. So modern law cant always be compatible with old decisions. Finally one more issue that rises is that we cant be certain about the thought process of the judge that took the final decision in an older trial or about the reasons and the circumstances under which he took his decision.In addition the application of preced ent may sometimes cause in justness. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in an individual case but injustice in the generality of cases. It would be undesirable to treat a make sense of claimants unjustly simply because one binding case had laid down an unjust rule. The use of precedent overly has as a result to delimit the development of the law. The doctrine of stare decisis is a limiting factor in the development of the law made by judges. Practical law is proveed on take but the scope for further experience is restricted if the first case is binding.Moreover it could be said is that there are too m whatsoever precedents resulting to the going away of time and money and sometimes leading to confusion due to the large number of cases that should be considered. The citation of authority in court should be unbroken within reasonable bounds because it can be costly in ter ms of time and money. Also Lord Diplock has warned of the danger of so blinding the court with case law that it has difficulty in seeing the wood of legal principle for the trees of paraphrase. In order to avoid all those consequences the House of Lords has decided that it pass on non allow transcripts of unreported judgments of the Court of Appeal, civil division, to be cited before the House except with its leave.Finally one more disadvantage of the precedent is that it makes the law inflexible. The case-law method is sometimes said to be flexible. However a judge is not so free where there is a binding precedent. Unless it can be accredited he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity. Judges are forced to apply binding precedents that blocks them from making a new decision about a case. This action introduces an unnecessary rigidity on case-law that doesnt allo w for the law to develop.One great example that the precedent cant be used in certain cases can be found at the case of R v R 1992 1 AC 599. In this case a married man appealed against his conviction of the attempted rape of his wife. The defence mechanism of the husband supported that a husband cannot be guilty of rape upon his lawful wife because of the marriage contract. Upon marriage the wife concurs to her husbands exercise of his marital rights. They ground their defense on case law using Hale, History of the Pleas of the Crown, 1st ed. (1736), vol. 1, ch. 58, p. 629 Archbold, Pleading and Evidence in Criminal Cases, 1st ed. (1822), p. 259 Rex v. Audley (Lord) (1631) 3 St.Tr. 401Reg. v. Cogan 1976 Q.B. 217andReg. v. Kowalski (1987) 86 Cr.App.R. 339 The wifes consent could only be withdrawn in certain circumstances, such as her death, or if the marriage was avoided by a private Act of Parliament, a insularity order (seeRex v. Clarke 1949 2 All E.R. 448), a decree nisi (see Reg. v. OBrien (Edward) 1974 3 All E.R. 663), an undertaking (seeReg. v. Steele (1976) 65 Cr.App.R. 22), a deed of separation (seeReg. v. Roberts 1986 Crim.L.R. 188), or a family protection order (see Reg. v. S. (unreported), 15 January 1991, which did not followReg. v. Sharples 1990 Crim.L.R. 198). As none of those factors existed, the appellants immunity was not lost by what happened between his wife and himself. Accordingly he should not be tried for or convicted of rape. However appeal was dismissed. Overturning the principle set out in Hales History of the Pleas of the Crown (1736), that a wife irrevocably consented to sexual intercourse with her husband on marriage, their Lordships confirmed that the assumption was no longer applicable in modern times when marriage was viewed as a partnership of equals. TheSexual Offences (Amendment) Act 1976 s.1(1)defined rape as unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it. Their Lordship s rejected submissions that unlawful meant outside the bond of marriage. It was unrealistic to describe extramarital sexual intercourse as unlawful, particularly as unlawful usually meant contrary to some law or enactment or without lawful justification or excuse. The word unlawful was superfluous in the context of s.1(1). The husband was guilty of attempting to have sexual intercourse with his wife against her will contrary to s.1(1) of the 1976 Act.On the other hand despite the fact that precedent has some disadvantages it also has a lot of advantages because in its favor, the use of precedent is said to bring certainty to the law by enabling people to know how issues will be resolved in the future. At first with the use of precedent people are aware of the law and its consequences and they can predict with exactitude their penalties if they make any unlawful actions and they can avoid them by knowing that its illegal and that they will receive a penalty. Also the precedent is a convenient timesaving device. If a problem has already been answered and solved it is natural that a similar case will gravel the same conclusion. The judges can use the precedent to deal with pocket-sized offences that came to the jury and that will save a lot of time so that they can deal with more cases in a smaller time period.One of the most important advantages resulting from the use of precedent is that it gives greater certainty in the law and helps the judges to avoid flaws. The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance. Generally the precedent is a very important tool for the judges. When they face a difficult case they can search for similar cases in the past and see what decisions were made. That can help them make a decision and be sure that their decision was lawful and fair.In addition the use of precedent prevents injustice. The doctrine of precedent may serve the inter ests of justice. It would be unjust to reach a different decision in a following case. Everyone should be equal against the law. In order to realize this we should all be judged as equals and receive the same penalties for the same crimes. The precedent helps with that because the decision is taken based on a previous decision for a similar or same crime. That helps the judges and works like a guidance to help them make right decisions. Also it ensures impartiality of judge. The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. Judges that are not loyal to their duty are easy to be corrupted and make decisions that are in favor of one part. The use of precedent helps to limit the phenomenon of corruption of the judges and it ensures a fair legal system. Judges cant make decision a nd penalties out of their minds. They should follow the precedent if it is binding or if they have worries about taking a decision. Every radical attempt to support one side at the expense of another would be obvious and would be stopped.Finally one more great advantage is that it offers opportunities to develop the law. The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or anaesthetize old principles, to meet novel circumstances. A wealth of cases illustrative of a vast number of the principles of English law has built up over the centuries. The cases symbolise the law in the sort of detail that could not be achieved in a long code of the Continental type. The precedent give the opportunity to check out old decisions and from reform or create new laws that are representing better the modern time.The use of precedent can become very useful for the judges and is obvious through the case of C v DPP 1995 2 All ER 43. In that case a boy which was at the age of 12 at the time of the offence appealed against the Queens Bench Division ruling (Times, March 30, 1994 1994 3 W.L.R. 888) that the presumption that children aged 10-14 were doli incapax (incapable of committing a crime) no longer employ because the court believed that the common law presumption was superseded and against the public interest. In that case the appeal was allowed because the court believed that except the the actus reus and the mens rea the prosecution must adduce additional show up to prove the belittled knew that what he was doing was not merely naughty but seriously wrong. Especially the court added that proof that the minor had done the acts charged could not per se establish that he had guilty knowledge, however bad the acts. The additional evidence must be obtained from a witness who knew the minor well, by interviewing the minor or by psychiatric ex amination. In para 8.4 of Crime, Justice and Protecting the Public (1990, Cm 965) the government approved the presumption on the grounds that tolerance must be made for childrens developing faculties. To change the law by judicial ruling would be inadvisable because Parliament had rejected the opportunity to clear up a known difficulty.Its obvious especially in this trial that the precedent played a very important role in order to reach justice. It was clearly visible that the decision of the court was merely wrong. During the trial, the presumption that children aged 10-14 were doli incapax that means that they were incapable of committing a crime was not taken into account and this mistake led them to a false and unfair decision. The appellant mentioned this mistake and appealed against their decision because it was obvious that it was wrong. This case is a very good example of what happens if during a trial the judge decides or forgets to apply a decision because he judged diffe rently than previous people have judged.In conclusion, the precedent as was firstly argued is a very important and useful tool for the English law. It may have some disadvantages but however problematic we may find the use of precedent in many occasions it can be really helpful in order for justice to come to light. It sometimes prevents legal doctrine from developing as society develops and introduces an unnecessary rigidity but its obvious that its use brings certainty to the law by enabling people to know how issues will be resolved in the future. We cant just decide that the use of precedent should be stopped or should be continued because no matter what its disadvantages are it also has a lot of advantages that have been proved really helpful in everyday life.