Judges Developing Laws
Creative law comprises of the rulings that were developed using the system of the common law by judges after reviewing and interpreting the law afresh (Ponzetto & Fernandez, 2008). There are several advantages of judicial precedents that include the easy way via which the lower courts are able to make rulings in similar situations. This guides the lower courts since they use decisions that knowledgeable and experienced judges have made in similar situations in the past.
Another advantage of judicial precedents is saving time. The basis of this is foreseeable situation and outcomes analysis. The cases do not require judges to decide on their own. Instead, they follow precedents. In addition, a common perception is that the laws are more effective because the people who develop them understand the law better. Under the common law, the offenders presented in court have ideas about the results of the cases facing them. This minimizes the likelihood of being discriminated (Ponzetto & Fernandez, 2008).
However, judicial precedents may be considered as being more rigid. Thus, they lead to rulings that are unfair. This is due to the fact that higher ranking judges may make mistakes which the lower courts will adopt and act upon while deciding on similar cases. Additionally, precedents are perceived as hindrances of the development of the law because outcomes and sentences that were assessed many years back may not be suitable for the 21st century’s cases. In addition, attorneys or solicitors may take longer periods trying to find applicable precedents and eventually not find them because of poor record keeping (Ponzetto & Fernandez, 2008).
According to the stare decisis principle, courts are required to make decisions that are similar to the ones made in similar, previous cases when faced with similar conditions and facts. This aims at enhancing law stability via uniformity as well as case understanding on the basis of facts. Nevertheless, this principle fails to account for changes in time. Therefore, it neglects law development which can lead to unfair sentencing.
Ponzetto, G. A., & Fernandez, P. A. (2008). Case law versus statute law: an evolutionary comparison. The Journal of Legal Studies, 37(2), 379-430.