The disadvantages of judicial precedent

Judicial precedent is a system in which lower court judges use the final rulings of previous High Court cases in order to arrive at a final judgment. This system offers lower court judges a set standard to which they can adhere. Although judicial precedent can ensure that legal matters are predictable and without bias, this system is not without its shortcomings. Judicial precedent offers several disadvantages such as: rigidity, complexity, confusion and injustice.

Judicial precedent can be very rigid. It does not allow for many changes or developments in the law. When a law has been laid down it is set in stone and becomes binding. There is very little room for flexibility, even if the court has arrived at a decision that is thought to be unjust or unreasonable. The lower court judge is expected to follow the pattern of prior judgments of the High Court, regardless of the case.

Judicial precedent does not fully take into account how complex the law can be. Barristers are responsible for finding a prior ruling that will best serve their current case. Unfortunately there are thousands of cases, which means that there are several intricate distinctions in each case. Finding the best precedent for the case at hand is very complicated. Even experienced barristers can overlook certain essential rules. When searching for the best resolution, the barrister is left to sort out the intricate distinctions and contrasts between each case.

Not only are cases complex, but there are hundreds reported each year. The number of cases grow daily. This makes it very difficult to find relevant precedents as well as impossible to read each case. The research process can be tedious as well as time consuming. Though there is an abundance of precedents available to the barrister, her research is limited to the amount of cases that she has time to read.

Judicial precedent leaves room for injustice. An unjust overruling in one case can lead to injustice in all subsequent cases. For example, if a barrister is in the middle of a case and is ordering his affairs based upon a prior court ruling, the barrister's current case will still suffer, even if that prior case ruling is unjustly overruled. What is good for one case may not be best for all. Later cases will still be penalised, even though the prior ruling may be widely regarded as unjust.