Discuss The Advantages And Disadvantages Of Precedent

The doctrine of precedent, or stare decisis, is a common practice in the common law systems. It states that judges are to follow the court's previous decisions when deciding cases with the same facts. It is simply an ideal of 'deciding similar cases in a similar manner'1 so that consistency is maintained when deciding cases. There are a number of advantages and disadvantages in common law systems where judges make the law. In fact, the question of whether judges in common law systems make the law is controversial and debatable. Different judges have different opinions on this question. Recently, however, more judges are accepting that they actually do make law, which raises another question on the limitation of the judges' power and the concept of Parliamentary sovereignty. The rules of binding precedent say that judges must follow earlier decided cases, or, in other words, previous decisions of the courts are binding on other lower courts and

Judicial actions are often 'swifter' than those of the Parliament,16 so it is more convenient and effective when some laws need immediate fixing. By following the precedent, the court can also save a lot of time. Judges do not have to waste time reconsidering the same problem too much17 and it can also be a guidance for judges so that they do not make unintentional mistakes. However, if one looks at it the other way, it can be considered a drawback. The doctrine of precedent requires all courts to follow previous decisions even though some cases may be decided wrongly. It does not mean that the precedent is a bad decision, but its application may not be suitable for other cases. It would not be fair to decide a case unjustly because of the unsuitable binding precedent.18 Another advantage of judicial law-making is that as they are made based on real situations, they are more practical than the ones based merely on