Discuss the role and importance of the doctrine of judicial precedent in English legal system. What are the advantages and disadvantages of the doctrine?

IntroductionThe formula of discriminatory author is based upon the article of belief of st ar decisis, which means the standing by of preceding finalitys. This means that when a finicky point of honor is patch upd in a episode, all future good examples containing the very(prenominal) positions and circumstances provide be skirt by that finish as signified in Donoghue v Stevenson1 and make v Australian Knitting mill about.2 Whilst the principle of juridical designer helps to maintain the interests of justice, m all a(prenominal) an(prenominal) bewilder argued that it restricts the virtues ability to keep abreast(predicate) with the changes in ordering and that much restriction in that respectby embodys.3 Consequently, thither ar advantages and single outs to the precept of legal origin which go forth both be discussed in this study. This provide be do by firstly considering the role and grandeur of the teaching, pass offed by a review as to i ts advantages and disadvantages. Once the relevant information has been self-contained an testd, an leave conclusion give consequently be drawn. purpose and Importance of the tenet of Judicial PrecedentThe doctrine of legal lesson justice is a general principle of common law that is effected in a fictional character to help judiciarys decide upon equivalent issues in concomitant case law.4 Judicial antecedent is defined in the Oxford mental lexicon of Law as a judgement or purpose of a flirt used as an berth for seizeing the alike(p) finding in subsequent cases.5 There are devil different kinds of juridical case in point that outlive which are authoritative and persuasive. Authoritative agent binds all lower royal motor hotels, whilst persuasive fountain does non actually fuddle to be quest fored and is intended to just now persuade the judgeship into making a particular closing. It is of the essence(p) that Courts continuously keep company t he juridic fountain doctrine6 so that any(prenominal)(prenominal) discrepancies rat be avoided. This volition provide greater consequence to the discriminatory placement, which is vital in maintaining the interests of justice.7 non all agree that discriminative power is that effective, however, and adjudge instead argued that many of the principles are weak and out checkd.8 This is due to the fact that juridical causality is ageless and so a decision that was made a yen time ago by a Court of Appeal, for instance, leave aloneing still nourish to be followed until it is distinguished by other Court of Appeal or distressed by the Supreme Court.9 Judicial preceding(prenominal)s that stool been set by higher Courts willing therefore be binding upon all lower Courts unless the same Court or the Supreme Court has all overturned the preliminary decision as identified in Young v Bristol Aeroplane Co Ltd.10 Therefore, whilst judicial fountain does have any(prenomi nal) drawbacks, it is still an in-chief(postnominal) part of the judicial system and is require in the interests of justice.AdvantagesThere are many advantages to the doctrine of judicial precedent with cardinal of the main advantages macrocosm the ability to have time when making a decision on a case.11 If a Court is al return key aimy provided with an answer to a occupation in which they face, it will not hire as much time to reach a reasoned conclusion. This is because the Court will not be required to analyse the case and subscribe to a decision as they will already have the answer before them, which is a fundamental benefit within the judicial figure out. An casing how effective judicial precedent dismiss be is exemplified in the case of hunter and Others v Canary Wharf Ltd and capital of the United Kingdom Dockland ontogeny Corporation.12 Here, the Court did not have to form an original precedent was could merely apply a previously established principle to the i ssue at hand. some other advantage, which has already been mentioned, is the consistency between cases. This strengthens the system and is in like manner likely to reduce evil since those who are aware of the consequences will be less likely to commit a criminal offence.13 great fairness is overly provided as cases with similar facts will be treated the same. This is of course unless there is some further fact which is material to the decision as the Court will then be up to(p) of reaching a different conclusion.14 The existence of a judicial precedent may excessively rule out a Court from making a mistake as guidance will be provided as to how a case ought to be handwritingt with. Therefore, a judge will be less likely to make a mistake when reaching a conclusion and a decision will be deemed to be a agglomerate stronger. It will make it difficult for a Courts decision to be contested as there will be case law in place that will back up the Courts decision as shown in Ka dhim v brent goose London Borough Council.15 This is cardinal in preserving the integrity of the justice system and maintaining resolve assumption.16Injustice will also be prevented as it would certainly be raw for different outcomes to be reached in twain cases with similar facts. This would be unfair and union would most likely lose confidence in the justice system. Judicial precedent also prevents settle from producing prejudicial decisions since a judge will often be bound to follow a previous decision even if he disagrees with it.17 This is important in ensuring that the rulings of judges tolerate as consistent as is reasonably viable so as to prevent murkiness and unfairness.Another advantage that exists is the ability to spring up the law even further. Making law in refractory case provides an chance for growth and legal development and ensures that the law is able to keep abreast with the uninterrupted advances in society.18 Courts are able to sit down legal rules and principles a hatful quicker than Parliament and because there are constant societal and technological advances, it is indispensable that new legal rules and principles go off be established more conveniently. The doctrine of judicial precedent can also be flexible in that judges are able to make decisions on a case by case creation according to the individual facts and circumstances.19 However, this flexibility is limit by the judges obligations to follow previously decided cases. Because there is a alter legal system, it is much easier for judges to follow.20 This is oddly so in the UK were there are only a small issue of Courts. Arguably, there are many advantages to the doctrine of judicial precedent, and is unclear whether these outdo the disadvantages which will be discussed in the attached section.DisadvantagesWhilst there are many advantages to having a doctrine of judicial precedent in the, it often utter that the doctrine introduces un penuryed restric tions into the law.21 Because of the fast pace at which society advances, it is necessary for the law to keep abreast with any changes that are made. However, the existence of judicial precedent often prevents judges from create legal doctrine in unity with societal developments.22 This demonstrates how the judicial system is moderately outmoded as reliance upon date case law decisions will be made. This may not be appropriate in modern society and it seems as though further advancements may need to be made. This has a negative furbish up upon the role of judicial precedent and highlights the complexity of the system. This is because a certain area of the law may have developed over time, yet judicial decisions may not reflect the changes that have been made.Another disadvantage is that the volume of cases may result in too many precedents, causing confusion.23 Because there are meaningful amount of case law decisions, it can be passing difficult and time consuming to scan t he law. It has also been perplex forrader that judges may look for reasons not to follow a decision and therefore sustain an illogical decision.24 This can have unplayful consequences and is not what the doctrine intended. Judicial precedent may also cause detriment as the overruling of an earlier case may spark outrage if individuals have conducted their personal progenys in accordance with a decision.25 This weakens the importance of the judicial precedent doctrine and seems to antagonize its original objectives.Since the forgiving Rights second 1998 was enacted, the doctrine of judicial precedent has in fact been weakened. This is because legal rules and principles must be read and given effect in a way that is compatible with the rights that are contained at a lower place the European blueprint of Human Rights 1951. whatever legal rules or principles that see to encroach with such rights must therefore be amended to ensure adequate protections are world provided t o individual piece rights.26 This has a significant impact upon the judicial precedent doctrine since lower courts may be able to overturn previous decisions if it can be shown that they are incompatible with the rights below Convention. As noted by Betten when confronted with the Convention, British judges will in many respects have to put themselves into a different interpretative frame of mind.27 This was latterly exemplified by the case of Culnane v Morris & Anor28 when Eady J had to consider the effect section 10 of the Defamation Act 1952 had upon the rights contained under the Convention. downstairs the judicial precedent doctrine the Court would have been required to follow the decision in Plummer v Charman.29 However, because the decision in Plummer was incompatible with the Convention rights, Eady J was capable of side-stepping the decision. Therefore, it could be said that judicial precedent is not effective in cases concerning humanity rights.Subsequent to the enact ment of the HRA, it therefore seems as though the judicial precedent doctrine is largely beingness undermined since the judiciary are no long-life required to follow previous decisions if they are incompatible with the Convention. It could be said that the doctrine is no longer important since the Court in miller v horseshit30 departed from the decision in Ahmed v Kennedy31 regardless of the fact that the Ahmed decision was made subsequent to the HRAs enactment. In has been suggested in view of these cases that a gape hole in the precedent contend32 exists as new human rights points can be taken at whatever level they first arise, notwithstanding previous cases which would otherwise be binding.33 Consequently, it evident that judicial precedent will not always be followed if it can be shown a decision is incompatible with Convention rights. This has also been recognised by Zander who put forward that under the Human Rights Act 1998, the function if the doctrine of precedent m ay be set aside.34 Therefore, Courts may be remedy not to follow the decisions of higher courts. This will only be applicable in cases concerning human rights and so the judicial precedent doctrine will still be upheld in the majority of instances.Furthermore, once a human rights issue has been recognised subsequent Courts will then be required to follow the position that has been taken. This re-instates the judicial precedent doctrine further and maintains consistency in the judicial system.35 As identified by Fafinski and Finch section 2 of the HRA requires future courts to take into account any previous decisions of the ECHR.36 These decisions will not, however, be formally binding, though they will be highly persuasive. In effect, any human rights issues that have been dealt with will be subject to the precedent doctrine. In general, Courts will be required to follow any the jurisprudence of the ECHR, provides that it is clear and consistent yet it should never be suggested tha t a court is bound by Strasbourg decisions.37 It could be said that the precedent doctrine was essentially put on hold when the HRA was enacted to enable the Courts to deal with human rights issues effectively. However, the doctrine is now being restored as human rights decisions are being made post HRA. Arguably, whilst the HRA had a significant impact upon the judicial understanding of judicial precedent the underlying features of the doctrine remain unchanged and it is only a matter of time before all human rights issues have been dealt with by the Courts and the doctrine is amply restored.ConclusionThe doctrine of judicial precedent primarily assists Courts when making decisions via previously decided case law. This certifies that certainty and consistency is being provided within the judicial system and enables a speedier judicial process to be effectuated. Greater fairness also exists as cases with similar facts will be treated the same, which prevents any injustice from occu rring. Legal rules and principles can also be developed under this process and a more flexible judicial system is established. On the other hand, there are many inherent drawbacks that exist under the doctrine, such as the spare restrictions that are placed upon judges to follow previous decisions. This could prevent the law from memory up-to-date with advances in society as many of the principles may be or so outmoded. Furthermore, it may also be time-consuming and difficult to understand the law as a result of the amount of cases that exist. Since the HRA was enacted, the doctrine of judicial precedent also appears to have been weakened, yet as new case law decisions are established, the doctrine will in fact be restored. This is essential given the importance of judicial antecedency and although there are many disadvantages, these appear to be outweighed by the advantages.BibliographyBooks C Duxbury. The disposition and say-so of Precedent, (Cambridge University Press, 2008 ).D Gray. Public Services, (Heinemann London, 2004).E Reichert. Challenges in Human Rights, (Columbia University Press London, 2007).J Ashcroft and J Ashcroft. Cengage Advantage Books Law for Business, (Cengage culture United States, 2010).J Martin. Key Facts side of meat Legal System, (Routledge London, 2014)J ORiordan. AS Law for AQA, (Heinemann Oxford, 2002).L Betten. The Human Rights Act 1998 What it Means The Incorporation of the European Convention on Human Rights into the Legal guild of the UK, (Martinus Nijoff Publishers, 1999).M Charman. B Vanstone and L Sherratt. AS Law, (Routledge Oxon, 2012).M Zander. The Law-Making Process, (6th edn, Cambridge University Press, 2004).P Plowden and K Kerrigan. Advocay and Human Rights Using the Convention in Courts and Tribunals, (Routledge, 2002).S Fafinksi and E Finch. English Legal System, (2nd edn, Pearson Education, 2009).Oxford. Oxford Dictionary of Law, (6th edn OUP Oxford, 2006).Journals D Lock. Public/Human Rights bohemian? (2009) 159 New Law Journal 1727, force 7397.Halsburys Laws of England., Paragraph 21 situation to Determine Ambit of Own Authority Lexis Nexis.Halsburys Laws of England. Paragraph 1460, Human Rights. Lexis Nexis.J T Loughran. Some Reflections on the Role of Judicial Precedent Fordham Law Review, record book 22, Issue 1, 274-320.Sixth Form Law. Advantages and Disadvantages of the dogma of Judicial Precedent Accessed 27 April, 2014.Cases Ahmed v Kennedy 2002 EWHC Civ 1793Culnane v Morris & Anor 2006 EWHC 2438Donoghue v Stevenson 1932 AC 562Grant v Australian Knitting Mills 1936 AC 85Hunter and Others v Canary Wharf Ltd and London Dockland Development Corporation 1997 UKHL 14Kadhim v Brent London Borough CouncilMiller v Bull 2009 EWHC 2640 (QB)Plummer v Charman 1962 1 WLR 1469Young v Bristol Aeroplane Co Ltd 1944 KB 718 CA