law

1. Dr. Syed Raza Shah Gilani
Associate Professor, Department of Law
• Ph.D. in Law, Brunel University London (UK)
• L.L.M/ M. Phil, Staffordshire University (UK)
• HEC Approved PhD Supervisor
• Assistant Editor, Book Review.
(BRILL) The Asian Yearbook of
Human Rights and
Humanitarian Law.
• ORCID identifier is
https://orcid.org/0000-0002-
7578-6808
E-mail: sgilani@awkum.edu.pk

2. Lesson Objectives
I will be able to state the advantages and
disadvantages of the doctrine of
precedent
I will be able to use examples relevant to
those advantages and disadvantages
I will be able to state the advantages and
disadvantages of the methods of avoiding
precedent

3. Advantages of the operation of precedent

4. Consistency Bring consistency to the English legal system
Case with similar facts will be treated in the same manner
Prevents judges making random decisions
Promotes justice and equal treatment
Law remains the same, which helps people plan their affairs

5. Predictability
Lawyers are able to advise their
clients with some degree of certainty
Predictability is important in
determining who should qualify for
Government help in funding their
legal action
The Government does not fund
cases which have little chance of
success as this would be a waste of
taxpayers’ money

6. Flexibility
Judges can develop the law – e.g. overruling an
out-dated precedent
House of Lords can use the Practice Statement –
meaning the law can be developed in areas not
considered important by Parliament
Modernizing decisions may prompt Parliament to
review legislation and bring I in line with precedent
– R v R (1991) – Parliament amended the Sexual
Offences Act 1956 – stating that marital rape is a
crime

7. Detailed Practical rules
There is a wealth of detail contained in
the reported cases. The principles set out
in the cases are a response to real-life
situations which have occurred and can
be a guide to future litigants

8. Original Precedents
The doctrine allows for new or ‘original’ precedents to be
created
An original precedent makes legal provision on a matter
for which there was previously no law
Gillick v West Norfolk and Wisbech Area Health Authority
(1985) –
HoL deciding on whether girls under 16 could be
prescribed contraceptives without parental consent. This
issue had never arisen before

9. Disadvantages of the operation of precedent

10. Complexity
Judgements can be complex and it can be
hard to decide the ratio decidendi 'The reason
for deciding of a case
In HoL there is more than one judgment to
consider and a common ratio decidendi has to
be considered by judges in future cases
A judge can give more than one ratio –
Rickards v Lothian (1913) – water flooding

11. Volume It is difficult to research the law
Hundreds of judgements are made every
year
This means someone may have to sift
through many volumes of law reports
Complete official law reports are estimated
to run to almost 500,000 pages!

12. Uncertainty
By using the mechanism of
distinguishing cases and other methods
of departure, the judges can avoid
following precedents. This causes
uncertainty as to how cases will be
decided

13. Rigidity
An unjust precedent can lead to further injustices. E.g.
once the HoL sets an unfair precedent, it cannot be
overruled unless and until another case of similar fact
goes to the HoL on appeal. This might not happen for
many years
The law may be out of date and need modernising –
Batty v Metropolitan Property Realisations Ltd
Judges can be reluctant to change the law –
President of India case (1984)

14. Unconstitutional
It is often argued that judges are
overstepping their constitutional role by
actually making the law rather than simply
applying it
It is the role of Parliament to create law and
the role of the judiciary to enforce/apply it

15. Undemocratic
Only persons who are elected, that
is, the Government and MPs should
be able to create law. The judges are
not elected and should therefore not
engage in law-making.

16. Retrospective Effect
Unlike legislation made by Parliament, law created by
judges is backward-looking.
It applies to events that occurred before the case came to
court.
This is unfair as the parties involved would rightly have
considered themselves to be acting within the law – R v R
(1991) the husband had not been acting illegally when he
subjected his estranged wife to sexual intercourse without
her consent
Case law is retrospective whilst legislation is prospective

17. Lack of Research
Unlike legislation which is made with the
benefit of research by interested and
knowledgeable bodies, there is no
opportunity for the judge to commission
research or consult experts on the likely
outcomes of their decisions.
Judges make their decisions based on the
arguments they hear before them in the
courtroom

18. Advantages of the methods of avoiding precedent
19 Potential for Growth
Case law is not completely rigid because judges are able to
avoid precedent
This gives judges the opportunity to modernize and develop
the law – Hall v Simmons (2000) overruling Rondel v
Worseley (1967) is an example. – Barristers no longer
immune from being sued for the work they do in court
20 Unfair Laws can be replaced
Sometimes unfair precedents can be developed – the
methods of avoiding precedent allow these unfair laws to be
abandoned – RVG and R (2003) – recklessness now a
subjective test rather than objective – Caldwell (1981)

19. Disadvantages of the methods of avoiding precedent
22 Retrospective Law Making
When judges avoid precedent, they change the law. This is unjust
because precedent applies to events that have already happened
– R v R (1991) the defendant was following principles laid down
in Sir Matthew Hale’s work the ‘History of the Pleas of the Crown’
23 Uncertainty The possibility of judges avoiding precedent
makes the outcomes of cases uncertain This is not desirable.
Because justice requires that people are treated in the same way
and know how to conduct their lives within the law Makes it
problematic for lawyers advising clients Certainty is desirable
especially in criminal law where the defendant’s liberty is at stake
– Howe (1987) overruling DPP v Lynch (1975) stating that duress
is no longer a defence to murder or an accessory to murder

20. Non-Conformity with the Separation of
Powers
When judges avoid following precedent, unless
they do so to conform to the requirement of an
Act of Parliament, they inevitably create new law
This goes against Montesquieu’s theory of
separation of powers