Advantages and Disadvantages of Judicial Precedent

Judicial precedent makes decisions in earlier cases a guide for deciding later cases. Its main advantages are certainty, consistency and efficiency. Its main disadvantages are rigidity, complexity and the possibility that a new ruling will affect conduct that happened before the ruling was made.

How it works

Under stare decisis, courts generally follow relevant decisions of higher courts. The ratio decidendi is the legal reason essential to a decision; it can bind a later court. Other comments made by a judge, called obiter dicta, may be persuasive but are not binding.

Advantages

Precedent makes the law more predictable: people and lawyers can use earlier decisions to assess how a similar case may be decided. Treating similar cases alike also promotes consistency and fairness. It can save time because a court does not have to develop a legal rule from scratch in every case.

Precedent has some flexibility. A judge may distinguish a case by identifying a legally important difference in its facts. A higher court may also overrule an earlier legal rule when the law needs to change.

Disadvantages

A binding precedent can force a court to apply a rule it considers unsuitable until a court with the power to change it does so. Distinguishing helps, but it can make the law harder to predict if fine differences between cases become decisive. Finding the binding rule among many judgments can also be difficult, particularly where judges give different reasons.

Judicial changes to the law may operate retrospectively: the new rule can be applied to events that occurred before the decision. Critics also argue that significant changes made by unelected judges raise questions about democratic accountability.

Exam tip: Do not say that every statement in an earlier judgment is binding. Identify the ratio decidendi, then explain whether the later case can be distinguished.