What are the disadvantages of precedent system?

Answer 1

Disadvantages. 1) There are so many cases that it is hard for judges to find relevant cases and the reasoning may not be clear. 2) Case law can only change if a real case is brought. This requires someone to have the money (or the access to legal aid) to bring such a case. To take a case to the Lords is highly expensive. 3) Bad decisions are perpetuated since lower courts must follow higher courts (e.g. Anns). Very few cases get to the Lords which is the only court which can overrule one of it's own previous decisions. Not until 1991 (n R v R) was rape in marriage accepted as a crime. 4. Restricts the development of the law. It leads to distinguishing and hair splitting decisions which rules the law unnecessarily complex e.g. the law on automatism and voluntary intoxication which has led to some diabetics having to use the defence of insanity to escape a conviction if their trance like state was caused by lack of insulin, whilst if their state was caused by failure to eat after taking insulin they can use the defence of automatism. The law on insanity is still based on the McLoughlin rules 1843. 5. It is difficult to distinguish between ratio and obiter e.g. Donoghue v Stephenson. 6. Too much distinguishing or use of Practice Statement damages certainty.