Wednesday 4 September 2013

What's your view?

...on the doctrine of precedent?

Does it provide -
  • Consistency?
  • Certainty?
  • Efficiency?
  • Flexibility?
Or is it promote
  • Inflexibility?
  • Uncertainty?
  • Fixity?
  • Unconstitutionality?
[Slapper and Kelly briefly outline the arguments on  pages 138-139 and 144-145 of their book "The English Legal System - 13th Edition].

Other books develop these - and put other arguments. If you are taking a Law Degree exam (English Legal System - or the Open University's W200 course), it is worth summarising the arguments about the strengths and weaknesses of the doctrine of precedent. Then prepare short arguments - one version arguing for the utility of the doctrine and other arguing that it has more disadvantages than advantages. How would you put across each argument? How would you anticipate objections? Should you face an invitation in an exam to discuss precedent you'll have developed the knowledge and flexibility to answer it. Remember, there is no right answer. An examiner is looking for evidence of critical evaluation; and an ability to present a logical argument.

You should also be able to explain the "mechanics" of the doctrine - can you describe and explain
  • the significance of law reporting?
  • the rules about which courts bind which?
  • when previous decisions are not binding? [and Young v Bristol Aeroplane Co Ltd]
  • 'Ratio decidendi'?
  • 'Obiter dictum'?
  • Overruling?
  • the Practical importance of Precedent?
You might find it useful to review these Washminster posts.