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What is the pro and cons of common law legal system founded on the princples of stare decisis and binding precedent?
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What are the advantage and disadvantage of doctrine precedent?
The doctrine may pose some difficulties to our legal system as follows:Causes injustice, The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it. Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of claimants unjustly simply because one binding case had laid down an unjust rule.Ensures impartiality of judge, The interests of justice also demand impartiality from the judge. This may be assured by the existence of a binding precedent, which he must follow unless it is distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious.Limits development of the law, The doctrine of stare decisis is a limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is restricted if the first case is binding.However, there are some techniques which the judge can use not to abide by this rule:Flexible, The case-law method is sometimes said to be flexible. A judge is not so free where there is a binding precedent. Unless it can be distinguished he must follow it, even though he dislikes it or considers it bad law. His discretion is thereby limited and the alleged flexibility of case law becomes rigidity.Greater certainty in the law, Is perhaps the most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and come to settlements with a certain amount of confidence.Offers opportunity to develop the law, The making of law in decided cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases illustrative of a vast number of the principles of English law. The cases exemplify the law in the sort of detail that could not be achieved in a long code of the Continental type. However, therein lays another weakness of case law. Its very bulk and complexity make it increasingly difficult to find the law.Avoids mistakes, The existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any guidance.
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