A Level Law Practice Exam

Why might precedent be considered undemocratic?

1. Because judges are elected officials

2. Because it allows for public participation in judicial decisions

3. Because laws are created by judges rather than elected representatives

4. Because precedent is always followed without exception

The correct answer is: Because laws are created by judges rather than elected representatives

Precedent may be considered undemocratic primarily because it entails that judges can create legal rules and principles through their decisions, rather than those laws being enacted by elected representatives within a legislature. In a democratic system, laws ideally reflect the will of the people, who express their preferences through their elected officials. When judges establish legal principles through their rulings, there can be a perception that legal authority is being exercised in a way that bypasses the democratic process, as these judges are not directly accountable to the electorate. The essence of this concern lies in the balance of power between the judiciary and the legislative branches of government. Legislators, who are elected, have a mandate to represent the interests and values of their constituents. In contrast, judges are often appointed and do not share the same kind of direct accountability. This judicial power to shape the law through precedent can lead to a judiciary that is seen as having undue influence over the legal landscape, thus undermining the democratic principle that laws should derive from the consent and will of the governed. Additionally, while it is true that the legal system does recognize the importance of adhering to precedent (which contributes to legal certainty and consistency), it does not imply that such adherence occurs without exception. Courts may choose to distinguish