Discuss two advantages and two disadvantages of “stare decisis”.

Advantages of stare decisis

(i) Certainty and Predictability

The doctrine of stare decisis introduces an element of certainty and uniformity in the administration of justice.

(ii) Flexibility

Because of the freedom that the final Court of Appeal usually has to depart from a previous decision of its own if the social conditions that necessitated such decision no longer exist, there is flexibility in the administration of the law as human societies grow and become more complex.

 (iii) Aptitude for growth

The process of  ‘distinguishing’ cases facilitates the growth of detailed legal principles to deal with different factual situations. This would probably not be possible in a purely enacted system of law.

A case is ‘distinguished’ if a judge points out the difference in the material facts of an earlier case and the case before him for decision, as the basis for arriving at a different decision.

 (iv)  Practicality

The case law method has enabled judges to adopt a practical approach to legal problems since such problems have arisen from the practical situations in which the litigants have found themselves. This practical approach has also enabled judges to make decisions only after being satisfied that the particular decision would not create practical problems for the people subject to the law.

 

Disadvantages stare decisis

(i) Rigidity

The case law method of administration of justice has been criticized on the grounds that it leads to rigidity, since the discretion of a judge is usually restricted the rule that he must follow the decision of his predecessors if the material facts of the case to be decided are the same as those of an earlier case.

(ii) Over-subtlety/Artificiality

Because a judge is forced, as it were, to follow an earlier case which his conscience may preclude him from following, he might be inclined to ‘distinguish’ the present case from the earlier case. This artificial ‘distinguishing’ sometimes creates artificial differences which make case law over-subtle.

(iii) Bulk and Complexity

Because so many cases are being decided everyday courts all over the country, case law has become bulky and complex and it is doubtful whether judges would really know if a relevant earlier case had been decided, say some ten years ago.

(iv)  Piece-meal

Rules of law are made in bits and pieces

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