Common Law, originally from England, is one the three main legal systems which are used worldwide. It is based on customs and norms of society as well as legislative enactments. The hierarchy of the courts is particularly important to the doctrine of binding precedents that showcases various advantages and disadvantages in common law. Common law is much dependent on the doctrine of binding precedent. The term precedents refers to previously decided cases (Abbot,Pendleburry & Wardman, 2002) The term binding precedents is established due to the fact that judges always have an inclination to create laws; however it is not the function of any judge to do so, but instead to decide a case based on standing rules. In other words it lays a foundation
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(2002), in The Court of Appeal in the Criminal division the rules are the same except that the court need not to follow its own previous decisions where this case would cause injustice to the appellant, the reason is that where human freedom is at stake the need for justice exceeds the need for certainty.- R v GOULD (1968). The high court is bound by its own previous decisions subject to the rule of Young’s case and in the criminal court cases, R v GOULD. In the high court in the sense of judges at first instance, their decisions are not binding on other high court judges. In inferior courts, for example magistrate courts, they are not bound by their previous decisions due to the fact that they are less authoritative and cases are reported less. In all instances if cases are not binding the statements given are not irrelevant. In some instances the statements can be used as persuasive precedents or obita dicta. There are several advantages of the doctrine of binding precedents in common law as well as some disadvantages. To begin with the disadvantages there is evidence of rigidity in binding precedents. This is so because once a rule has been made, it is still binding even if there is thought of error. From this rigidity another disadvantage is developed, which is danger of illogicality. Here judges who do not want to follow a particular previous decision may draw up small ways to avoid the making the same decision introducing what is known as artificiality into the law. Another disadvantage is the bulkiness and complexity being that the law is so wide, no-one can lean all of the law and at times the most experienced lawyers will overlook important rules in any given case. Slowness of Growth is another disadvantage, as the system depends on litigation for rules to emerge, as litigation tends to be slow and expensive the body f case law cannot grow quickly enough to meet modern demand (Abbot et al. 2002). The final disadvantage to be
(2002), in The Court of Appeal in the Criminal division the rules are the same except that the court need not to follow its own previous decisions where this case would cause injustice to the appellant, the reason is that where human freedom is at stake the need for justice exceeds the need for certainty.- R v GOULD (1968). The high court is bound by its own previous decisions subject to the rule of Young’s case and in the criminal court cases, R v GOULD. In the high court in the sense of judges at first instance, their decisions are not binding on other high court judges. In inferior courts, for example magistrate courts, they are not bound by their previous decisions due to the fact that they are less authoritative and cases are reported less. In all instances if cases are not binding the statements given are not irrelevant. In some instances the statements can be used as persuasive precedents or obita dicta. There are several advantages of the doctrine of binding precedents in common law as well as some disadvantages. To begin with the disadvantages there is evidence of rigidity in binding precedents. This is so because once a rule has been made, it is still binding even if there is thought of error. From this rigidity another disadvantage is developed, which is danger of illogicality. Here judges who do not want to follow a particular previous decision may draw up small ways to avoid the making the same decision introducing what is known as artificiality into the law. Another disadvantage is the bulkiness and complexity being that the law is so wide, no-one can lean all of the law and at times the most experienced lawyers will overlook important rules in any given case. Slowness of Growth is another disadvantage, as the system depends on litigation for rules to emerge, as litigation tends to be slow and expensive the body f case law cannot grow quickly enough to meet modern demand (Abbot et al. 2002). The final disadvantage to be