Advantages and disadvantages of judicial precedent

Advantages:

  1. Certainty and Predictability: InDodhia V. National and Grindlays Bank the Court of Appeal was emphatic that “a system of law requires a considerable
    degree of certainty.” Case law makes a legal system certain and predictable.
  2. Consistency and uniformity: case law facilitates consistency and uniformity in the administration of justice as similar cases are decided in alike.
  3. Rich in detail: many decisions which constitute precedents have been made.
  4. Practicality: judicial precedent is practical in that principles or propositions of law are formulated on the basis of practical circumstances that demand legal solutions.
  5. Flexibility: it is contended that case law is flexible in that judges in subsequent cases attempt and sometimes succeed in distinguishing earlier
    decisions so as to justify departing from them.

Disadvantages:

  1. Rigidity: strict application of judicial precedent makes a legal system inflexible and unresponsive to changes. This could perpetuate incorrect decisions.
  2. Over-subtely: when judges in subsequent cases attempt to distinguish in distinguishable cases so as to depart from them, they develop technical distinctions or distinctions without differences. This arguably makes caselaw artificial and may lead to uncertainty.
  3. Bulky and complex: caselaw is its nature bulky as many decisions have been made and there is no index as to which of them are precedents in what cases.
    Closely allied to this problem is the challenge of extracting the ratio decidendi.
  4. Piece-meal: principles or propositions of law are enunciated courts in bits and pieces i.e. there is no deliberate attempt to make law in a comprehensive matter.
(Visited 87 times, 1 visits today)
Share this:

Written by 

Leave a Reply