Law Of Precedent Essay Research Paper Law

Law Of Precedent Essay, Research Paper

Law of Precedent

One of the major considerations on how someone is tried in a court of

law depends upon the previous convictions of similar cases. This law of

precedent (stare decisis) was founded hundreds of years ago as part of our

common law. The literal translation of stare decisis is “that like cases be

decided alike.” Precedents in law play a fundamental role in the judicial

processes of Canada. From stealing a loaf of bread ranging to murder in the

first degree, there are precedents for any type of case that has ever occurred

in Canada, and even many cases from Britain (prior to 1949 and the abolishment

of the JCPC). Unfortunately, the law of precedent does have its downfalls.

Despite the fall backs of stare decisis, the law of precedent still holds

true and important in our modern society. Some of the shortcomings of stare

decisis are the following: As time changes, precedents need to change in order

to accommodate society’s new values and laws. Furthermore, the introduction of

“social facts” in court cases has clouded over many existing precedents with

many new facts and ideas that render the basics of stare decisis much more

complicated.

One of the more common drawbacks to the law of precedent is that over

time, a law may be found as no longer applicable, or on the other hand, a new

decision may be found in a trial which can also be undesirable. Keep in mind

that the courts are not supposed to create new policies to deal with new

problems, that is the role of the legislature. This drawback is prevalent in

two forms: The first is the ruling of a court case, and the second is the

sentencing or judicial decision of a case.

In order to examine the first form an example is given. A long time ago,

sexual harassment at the work place was virtually unheard of or it was ignored

altogether. The case probably would not even make it to court. Nowadays if a

boss (traditionally a man) simply inquires about an employee’s sexual status

(traditionally the woman) is considered sexual harassment, and the boss would be

found guilty of the charge. This is a classic example of the changing views of

society. Sixty plus years ago, women seemingly meant nothing to the world. They

were considered tools, possessions, and frequently were not referred to at all

by the law. However, with the long battle for the realization of woman’s rights,

females have become respected by our society and our laws. Unfortunately, sexual

harassment at the workplace is going too far. It used to be a threat of one’s

job in return for sexual favors to qualify as quid pro quo harassment. Yet in

today’s context, simply inquiring about an employee’s sexual status is de emed

as sexual harassment.

There are problems with old laws and precedents that may need to be

rectified. Previous decisions by judges do not necessarily embody the law. Here

is where a judge’s duty is to apply the law, not another justice’s determination

of it. “The law and the opinion of the judge may not always be one and the

same.” For judges, it is important to correct any precedent that is now viewed

as a mistake. Making sure that precedents are kept “in check” is a vital role of

the courts.

The second case of changing precedent is that of court sentencing and

decision making. This part of stare decisis troubles many people along with

myself for a good reason, court cases are getting out of hand! Here offered is

another example. Fifty years ago, a convicted serial killer would have been hung

by the laws of capital punishment. Yet nowadays, the taking of a convicted

killer’s life is deemed as cruel and unusual punishment, even if he murdered the

Prime Minister on national television. If that example is too drastic, here is

another, more reasonable example. In the United States, court rulings dealing

with personal injury or damages are becoming out of this world. Here are a

couple of examples: A lady gets 8 million dollars for spilling hot coffee from

McDonalds’ on herself; O.J. Simpson is out a total of 33 million dollars for the

wrongful deaths of Nicole Brown-Simpson and Ronald Goldman. These rulings are

ludicrous! If one chooses to say that is the States and not Canada, how about

the Br ian Mulroney’s attempt to sue Canada for 55 million dollars due to

slanderous remarks that were allegedly made by his fellow politicians and

Canadian citizens? How much further must society “progress” (and this term is

used very loosely) before a life sentence of 25 years for a convicted killer is

deemed as cruel and unusual? With such continuing changes in the precedents due

to an ever developing society, it will not be long before our court system has

gone too far with its rulings. Yet the only solution that seems likely is to put

a “cap” on sentencing and judicial decisions. We currently do ha

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