judicial precedent

• disadvantages of judicial precedent

  • rigidity
  • complexity
  • illogical distinctions
  • slowness of growth
  • uncertainty
• • rigidity
  • law can be too inflexible and previous bad decisions may be continued because; lower courts have to follow decisions of higher courts. court of appeal has to follow its own past decisions. as so few cases reach the supreme court change in the law will only take place if parties have the courage, the persistence and money to appeal their case to the highest court.
• Complexity

  • as there are nearly half a million reported cases, it may not be possible to find all the relevant case law even with computerised databases. Court judgements can be very long, with no clear distinction between comments and the reasons for the decision. This makes it difficult to extract the ratio decendi.
• illogical distinctions

  • The use of distinguishing to avoid past decisions can lead to ‘hair splitting’, so that some areas of the law have become very complex. The differences between some cases may be very small and appear illogical
• slowness of growth

  • judges are well aware that some areas of the law are unclear or in need of reform, however, they cannot, make a decision unless a case comes before the courts to be decided. This is one of the criticisms of the need for the Court of Appeal to follow its own previous decisions, as only about fifty cases go to the Supreme Court each year. There may be a long wait for a suitable case to be appealed as far as the Supreme Court to bring about a change in the law.
• uncertainty

  • this can arise when a higher court reverses a decision of a lower court. This happened in R v Kingston (1994); the House of Lords reversed the decision of the Court of Appeal and dismissed the defendant’s argument that his involuntary intoxication could be used as a defence.