The operation of judicial precedent, which involves following, overruling, and distinguishing previous legal decisions when making current decisions, has both advantages and disadvantages.
Advantages
Provides certainty and predictability: The operation of judicial precedent provides certainty and predictability in the legal system by ensuring that like cases are decided in the same way. This helps individuals and businesses plan and make decisions with greater certainty.
Saves time and resources: The operation of judicial precedent saves time and resources by allowing judges to rely on previous decisions rather than starting from scratch in every case. This means that cases can be resolved more efficiently, without the need for lengthy legal arguments in every case.
Promotes fairness and equality: The operation of judicial precedent promotes fairness and equality by ensuring that similar cases are decided in a consistent manner, regardless of the individuals involved. This helps to ensure that the law is applied equally to all members of society.
Encourages incremental change: The operation of judicial precedent encourages incremental change in the law by allowing new legal principles to be established gradually, over time. This allows the law to adapt and evolve to meet changing social and economic circumstances.
Disadvantages
Can lead to inflexibility: The operation of judicial precedent can lead to inflexibility in the law, as judges may be reluctant to depart from established legal principles, even when they believe that a different outcome would be more just.
May perpetuate mistakes: The operation of judicial precedent may perpetuate mistakes made in previous decisions, as judges are required to follow the legal reasoning of earlier decisions, even if they believe that the earlier decision was incorrect.
May be difficult to apply: The operation of judicial precedent may be difficult to apply in cases where the material facts and legal issues are not precisely the same as those in previous cases. This can create uncertainty and confusion for judges and lawyers.
May be slow to adapt to change: The operation of judicial precedent may be slow to adapt to changing social and economic circumstances, as new legal principles may take time to develop and become established.
In summary, the operation of judicial precedent provides many benefits, including certainty, efficiency, fairness, and incremental change, but also has limitations, including inflexibility, the potential perpetuation of mistakes, difficulty of application, and slow adaptation to change. The advantages and disadvantages of the operation of judicial precedent must be carefully considered and weighed by judges and legal scholars in order to maintain a fair and effective legal system.
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