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Advantages and disadvantages

What are the advantages and disadvantages of judicial precedent? Discover about each with our detailed breakdown here.

Advantages of judicial precedent

Advantages:

o Consistency and predictability – the system provides fairness and justice as similar cases will be treated and decided in the same way as a past case. This allows lawyers to advise their clients with some certainty as to their position and whether to take a case to court

o Flexibility – judges in the higher courts are able to develop and update the law to take account of changing social conditions. Their decisions may influence Parliament to introduce or update new statutory rules

o New precedent – new situations may arise which are not covered by any statutory rule or previous precedent. Judges will be able to consider past similar cases or perhaps cases from other countries and make rules for the case before them which can operate as a precedent for future cases

Disadvantages of judicial precedent

Disadvantages:

o Complexity and volume – a judgement from an appeal courts may contain three or five separate judgements which may differ from each other. A judgement may be extremely long and it is for lawyers and judges in future cases to work out the ratio decidendi. There may be differing opinions on what the ratio is and what the obiter is.

o Uncertain – the result of a court case can be uncertain until the final (appeal) judgement is made. Some judges may be unwilling to depart from a precedent to make a change in the law

o Rigid – a rule can remain in place for a long time, even if it is outdated, as change requires a case to come to a higher appeal courts before new rule can come about.

o Retrospective effect – precedent has to be backward looking in the case that sets the precedent. This could be unfair in criminal cases if an offence is made by the judgement. When the offender committed the action it was not unlawful. This is unlike statutory law when an offence is created for the future by an Act of Parliament.