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Saturday, April 13, 2013

法則 Ep 10

Here's the last Law essay in my exam :D

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Question:
What are the advantages and disadvantages of strict adherence to legal precedent? How strictly are judges bound to precedent in the UK?

Answer:

Precedent is the source of law in which is created in courts for future judges to follow. Generally, all courts are bound by courts above it in the hierarchy as well as their own decisions.

Strict adherence to legal precedent has given a fair share of advantages and disadvantages to society. Among the advantages are certainty. Since precedents are naturally binding, it allows a certain degree of certainty. It allows lawyers to advise their clients based on what they have experienced so far. It also lets them carefully plan their next move.

Another advantage is that precedent provides flexibility. Precedents are allowed flexibility due to certain methods of departing such as distinguishing, overruling and reversing. This allows a limit to its rigidity.

Thirdly, having binding precedents is very useful in the sense that it saves a lot of time. Since the procedure is pretty much fixed, lawyers and clients are unlikely to go through the lengthy process of litigation.

The disadvantages to precedent, however, is that there is quite an amount of rigidity in the system. Since all decisions are precedent and binding, it is compulsory for all courts in the hierarchy to adhere to it. In some cases, the decisions might be wrong or bad, but not much can be done.

Strict adherence to legal precedent has also created a slowness in growth. This is because it is very rare for a case to appeal as far the Supreme Court if the claimant or defendant is unsatisfied in with the decision. Due to this, the growth and development of judicial precedent may be slow.

Precedent may also be disadvantageous because of illogical distinctions. For example, in the case of using the method of distinguishing. In desperation of applying this method, lawyers may find even the slightest of differences, which may appear illogical.

However, while it is true that legal precedence can be strict, there are some methods that can be used to depart from these decisions. Such methods are the distinguishing, overruling and reversing method.

The distinguishing method was used in the Balfour v Balfour case and the Merritt v Merritt case. In the latter case, the wife claimed that her husband had breached a contract. However, the claim was unsuccessful because there was no intention to create legal relations. On the other hand, the Merritt case, which also involved a wife making a claim against her husband, succeeded because the contract was signed after they had separated and there was a proof of it in writing.

An example using the overruling method is the Pepper v Hart case. Here, the Supreme Court overruled that the Hansard could not be used in statutory interpretation as in its earlier case, using the Practice Statement.

The reversing method is used when a higher court reverses the decision made by a lower court in the same case. However, this only applies if the case is appealed to the higher court and if the higher court believes the lower court has made a mistake.

As a result, legal precedent is both strict as well as flexible. It depends on how well it is used to one's advantage or disadvantage.

Marks: 19/25

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Hmm... No comment for this, alright?

CIAO!!

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