advantages and disadvantages of the regle of
Discuss the advantages and disadvantages of the cortège of preceding and how judges may make fresh law.
Include 1 circumstance where idol judges have made fresh law. The doctrine of precedent is an important feature of judge-made regulation (common law). This cortège means that related disputes needs to be decided by reference to the same legal rules, and that decrease courts will be bound to the actual decisions of higher courts within the same court docket hierarchy. You will find both pros and cons of the cortège of preceding and the way in which judges will make new law. An advantage of judge made law is that decisions derive from principle ” meaning that all judges are not getting back together the law because they go.
The doctrine of precedent provides for consistency inside the application of what the law states, which for that reason promotes justice and fairness (as the courts is going to decide ‘like’ cases in the same way). There is also a point of conviction, as the results of circumstances can be believed based on previous decisions.
The advantage of preceding is that that allows for the law to increase to meet new situations, and also to be versatile to meet changing needs ” which therefore provides for the efficient operation of the legal system.
On the other hand, judge-made regulation is slow to evolve. The process of law are not liberal to make law in the same sense as parliament. In contrast to parliament, all judges cannot make law since an immediate response to a community require or if a general need is perceived. A drawback of precedent is that solidity and inflexibility may develop where all judges are reluctant to go away out-of-date or inappropriate precedents. Uncertainty also can arise where there is more than one preceding that may apply at a particular set of circumstances. Alter may be slow and infrequent because change can only happen when a complainant has a significant case that is certainly subject to a great appeal. Given the cost of lawsuit, not all complainants may be prepared to persist with a legal action under these types of circumstances. Likewise, the law grows retrospectively meaning that a problem must exist prior to court will certainly consider conditions ” it will not operate to avoid possible clashes.
Landmark decisions (from which will new guidelines develop) will be few and far between. They often arise coming from cases on appeal observed in the maximum courts. A good example of an Australian case where judges make new regulation is Scholarhip v. Aussie Knitting Mills  ALTERNATING CURRENT 85. This situatio involved similarcircumstances to the milestone case of Donoghue sixth is v Stevenson,  AC 562. In this case the plaintiff, Doctor Grant, bought some woollen underwear coming from a store. The underwear was manufactured by the Australian Sewing Mills Limited. Dr . Give suffered hautentzündung as a result of wearing the woollen underwear. It absolutely was later found that the condition was caused by the excessive utilization of chemicals in the act used to associated with underwear.
In line with the doctrine of precedent, the court could have applied the rule of law set by Donoghue v. Stevenson towards the case of Grant v. Australian Sewing Mills. Like Mrs. Donoghue, Dr . Scholarhip was considered to be a ‘neighbour’. He was a person who was carefully and straight affected by the act in the manufacturer as well as the manufacturer should always have had him in mind as being affected when preparing the underclothing. The manufacturer had a duty to consider reasonable proper care to avoid functions that they can reasonably foresee would be very likely to injure consumers such as Doctor Grant. Dr . Grant was successful in the claim pertaining to damages. It was the initially Australian circumstance to adopt the legal basic principle of negligence. In summary, judges make regulations by assessing similar conditions and subsequent sets of principles to determine outcomes. This really is known as the règle of precedent and it creates common regulation ” containing both advantages and disadvantages.
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- Category: law
- Words: 710
- Pages: 3
- Project Type: Essay
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