hello everyone and welcome to our fifth video tutorial on the topic of judicial precedent so far we've been looking at how judicial precedent works and we've looked at the hierarchy of the courts ratioed acidendai and law reports we've also looked at the different methods that the courts can use to try and avoid a precedent that they don't wish to follow distinguishing reversing and overruling and we've also looked at the specific methods that the supreme court and the court of appeal can use to avoid their own past decisions i.e the practice directions three and four and the exceptions in young and bristol aeroplane in today's tutorial i'd like to look at evaluating the doctrine of judicial precedent by looking at the advantages and disadvantages of the system i've given you quite a lot of detailed notes in your booklet about this and there's lots of articles that you could read around this area that would supplement your notes and assist you with this further it could be on the exam on section a you get five more questions asking you to evaluate judicial precedent so that's what we're working on today so let's start by looking at the advantages so i've put the key advantages in orange down the side here and i just wanted to talk you through these to check that you understand what each of them means so first of all first major advantage of precedent is that it should lead to a just system now what i mean by just is fair an advantage of precedent is that it should lead to a fur system because a case is going to be treated exactly the same as a similar case that preceded it and that's what furnace demands and i'm sure for you as a student you'd feel very unhappy if you were treated differently from another student when you did exactly the same thing and of course the same applies in court that we would want we would hope that similar cases are treated the same way and this links to the second advantage here that if you are treating cases the same to to previous cases that that should lead to impartiality in the system because judges if they are simply applying a binding ratio from a previous case it means that they are less likely hopefully to be making decisions based on prejudices because they're not going to be looking at that particular defendant and what that particular defendant has done they're simply going to be applying the rule from hal for instance jurassic is no defense to murder they're not going to be bogged down in this specific defendant and hopefully that will lead to impartiality which is what justice demands and it leads us to that very famous expression justice is blind and hopefully justice will be blind if we're simply applying um the ratios from a previous case another major advantage of precedent which we've mentioned before is certainty that if you are following a binding precedent from a previous case it means that lawyers are able to advise their clients accurately because we can predict what an outcome will be based on the case that's um been decided previously so when we were looking at ratio decided we talked about the case of our and how and we looked at that case in criminal law and the ratio decided i in the case of how was that jurass trying to highlight it here duress is no defense to murder so that was our ratio now when the house of lords decided that that jurass was no defense to murder that created certainty in the law because the house of lords was the highest court we know that it binds all the courts below and therefore we know that in any case involving murder the defendant is not going to be able to plead your ass because we're going to have to follow this binding ratio so it leads to certainty in the law which is really important um in advising clients now another advantage you could argue is that there's flexibility now you've got to be slightly careful with this because most of the time the higher courts we know are going to follow their own decisions so they bind the courts below and generally they buy themselves and we will see in a later slide that a disadvantage of precedent is that it can actually make the law quite rigid but there's always two sides to the story here we're arguing that precedent actually allows for a bit of flexibility now in the case of rnr the house of lords made the decision that a man could be guilty of raping his wife prior to that case marital rape was not a crime but obviously that was very outdated and the house of lords said no society has changed the law also needs to change so the fact that judges are able to overrule decisions as we saw with brb and herrington overruling guardian dunbrack for instance there is a degree of flexibility there with overruling with using the practice directions because we are able to change the law to take account of changes in society the fact that judges are essentially reasoning by analogy when they're using judicial precedent it means that they're able to find practical solutions for situations that parliament didn't foresee when they were creating a particular act of parliament so for example in the case of deca if you recall when we were studying criminal law the ratio indica was that inflicting hiv can amount to gbh now the offences against the person act 1861 and the draftsman at that time i'm sure would not have possibly foreseen that in the future people would be potentially inflicting biological disease as a type of assault on a person so that wasn't foreseen at the time that the act was written but judges by reasoning by analogy are able to respond quickly they are able to make decisions in cases and deal with real life problems such as those seen in deca and also more recently in the case of row as well and when judges are making these practical solutions like i just mentioned indica that also links to this point here that precedent allows for legal growth and we mentioned earlier that um there's something called original precedent now an original precedent is where a judge makes a decision in a case that has never had to be made before and we've got some cases of that um bland was the famous example we've looked at donahue and stevenson is a case that we'll study next year that's an example of a brand new original precedent in that case judges had to make a decision on whether manufacturers owed a duty to the ultimate consumers of their products and they decided that they did and that was the case where lord atkin developed the neighbour principle for duty of care so a massively important case that shaped and basically created the law of negligence as we now know it and another major advantage of precedent of course is that it helps judges to learn so inexperienced judges or new judges that are being appointed to the lower courts in the hierarchy they are applying the decisions from judges in higher courts and in that way they are learning from their more experienced brethren and judges are never in a position where they say i don't know i've no idea what to do here because they can always look at previous decisions and as i said before they can reason by analogy and come up with a solution so precedent is helping judges to learn and to apply the law effectively okay so if we go on to consider some of the key disadvantages then again i've listed some of the key points here for you in orange and we'll just talk through and check that we understand these so first of all judicial precedent is extremely complex and there's a great example we could use here i've given you some details in your booklet um dodd's case dodd's case was um a court of appeal case where five courts of appeal justices all said that they couldn't find the ratio i from the house of lords in a previous decision that they were trying to follow so i've mentioned to you before that when you read a judgment the judge won't say this is the ratio of the case and he simply makes his judgment and lawyers have to read it back and work out what the most important principle is but that can be very complex and it's not always to work out not always easy to work out what the key point is so it can be a very complex process and the volume of law you've got to consider that here every year more and more cases are going to court more and more decisions are being made and we are adding to the volume of our legal system um and so the sheer volume of cases means that applying judicial precedent becomes very complex and judges have to be aware of all of the cases and the most recent cases that have come to court in that area and that can make advising your clients quite difficult as well now on the previous slide we mentioned that a key advantage of precedent is that it leads to certainty in the law and generally it does but we've also got uncertainty as a disadvantage because whilst the law is certain when the judges are applying the ratio from a past decision we actually don't know when they're going to try and avoid a precedent and we are sometimes taken by surprise when judges choose to overrule the case or choose to reverse a case or even if they choose to distinguish it we don't know if the judge is going to try and do that and that can lead to uncertainty so there was a famous case here murphy and brentwood this case overruled an earlier case called amazon merton now anson merten wasn't a very good piece of law and it had been disapproved of for 12 years by judges but when it was suddenly well not suddenly it took 12 years to be overruled but when the judges did take the decision to overrule it that was quite surprising because it existed for 12 years and people were surprised and that led to uncertainty here um about the law um specifically relating to property sales because that's what these cases were about um rigidity is another disadvantage now we said previously that on the whole um not on the whole sorry but we said previously that flexibility is an advantage of precedent and it is because the law can develop but a disadvantage is that precedent can make the law very rigid if you think about the doctrine and the doctrines based on stir decisis to stand by what has been decided if someone sticks to stir decisis and never moves from it the law becomes very rigid and we've just mentioned tanzan merton and has said that it took 12 years for it to be overruled so the law can stagnate and become quite old-fashioned um if you think about the case of aaron brown which we looked at in criminal law and that's a poor decision in in my opinion in the opinion of many academics but it's still technically good law um and that was the case on sadomasochism and consent and until that's overruled the laws rigid stagnating it's not keeping up with modern times these three points here we can sort of link together um if you think that judges are making decisions and effectively making law when they're overruling when they're making decisions like they did in r r or donohue and stephens then where they're making original precedent that's unconstitutional um because our judges are only supposed to apply the law they're not supposed to make it and if you think back to separation of powers the judiciary should be in the judiciary in the arms of state they shouldn't be in the legislature the law-making body it's undemocratic of course because they're not elected unlike the house of commons in our parliament and that judges generally are drawn from a very narrow social spectrum so do we want um this narrow social spectrum making such big decisions on things that affect us such as in the case of rnr for instance and another disadvantage of precedent although hopefully i'm sure we all agree that the decision in r r was a good one marital rape should definitely be illegal but when you think about that it actually has retrospective effect because when the defendant in this case raped his wife what he did was legal but when he came to court the judge at that point decided actually times have changed it's now illegal so you're guilty so we're punishing him for something he did retrospectively okay let's leave it back