What are the advantages and disadvantages of precedent?

What are the advantages and disadvantages of precedent?

The concept of binding precedent may seem absolute. The notion of binding precedent goes hand in hand with the rule of stare decisis, which assigns binding force to several precedents. In practice, however, stare decisis is a flexible concept. Since a judicial opinion may be interpreted differently, judges have significant latitude even when dealing with binding precedents (Scanlon, 2004). Differing interpretations result from internal tension between the facts and holding of a case to narrow factual categories, but such interpretations give the case relatively little importance. Binding precedents are not only reasons to decide new cases in a particular way, but also reasons to disregard other potentially relevant reasons (Brown and Kennedy, 2000). Due to their exclusionary force, binding precedents need normally not be balanced against competing for contributive reasons. If they are applicable, they usually determine the outcome of the cases in which they are applicable (Rodger, 2005). The vital force of binding precedents means that their operation is guided by several rules which determine which precedents have biding force for whom and which parts of the precedents have this binding force. This paper, therefore, discusses the advantages and disadvantages of binding precedents.


Advantages of binding precedent

Practicality and fair judgments

One of the most significant advantages of binding precedent is that the rules evolved from real-life cases and are essentially practical. Again, the crucial feature of the system makes it reasonably sure. The binding precedent is meant to make the law fair to everyone, and judges, in their rulings, are to follow the past decisions made by other judges in similar cases. This creates a fair judgment and provides certainty in the law. Suppose judges frequently make a new law in every case; there would be no democracy (Scanlon, 2004). Rules that could lead to dictatorship would result in a free environment where every judge makes a ruling.


Obiter dictum

According to Harris 2002, Binding precedent or stare decisis is a statement of law based on truth and does not form the basis of a decision. Therefore, suppose a judge considers it necessary to give their opinion on some point during the proceedings not essential for the case; the idea does not count or have binding authority on a different court (Harris, 2002). However, a judge’s opinion may persuade another case (Hondius, 2007). Since binding precedents provide reasons even more formal than clear precedents, a legal system is the more traditional, the more binding precedent is recognized.


Dissenting judgment

In most courts, as stated by Scanlon 2004, one case is given a hearing by more than one judge, so there are full assenting and dissenting judgments in one case. The majority determines the instances, so biasness and unfair judgment cases are reduced (Scanlon, 2004). A dissenting judgment is an opinion contrary to another court’s ruling on a given topic. The decision may not be binding but may have a persuasive effect on other cases (Steiner et al. 2009). With binding precedent, there is only one speech, combining more than three judges’ rulings.


Disadvantages of binding precedent

Lack of flexibility

Scanlon, 2004 states that binding precedent is only set and supposes the material facts in a given case are similar to another which follows it. This does not give it enough flexibility in handling complex cases. Suppose any two points have distinguishable facts, then the ruling does not apply in the second case (Scanlon, 2004). Each case must have a distinct feature compared to others and assume that some similar issues seem to lose sense (Steiner et al. 2009). Crimes are committed differently, and to different degrees, so they lack similarity. Judges can also use the binding precedent to avoid the consequences of a former inconvenient decision that might otherwise be binding (Brown and Kennedy, 2000).


Unfair Overruling

A higher court may overrule a lower court’s decisions; for instance, the Court of Appeal can overrule the High Court’s decision. In some cases, even if the inferior’s ruling is correct, it can be revoked by the superior court. According to Rodgers 2005, apart from overruling resulting from improper law application or because the court considers the ruling obtained in the former no longer desirable, unfair overruling may exist based on personal opinions (Rodger, 2005).

Per Incurium

This is a decision reached by mistake or carelessness. Some judges waiting to clear a case make unlawful judgments on given topics. Every case is different and demands a different ruling which is not the case with some commands (Buxton, 2009). A court decision is not considered a binding precedent, given per incuriam. Though most decisions made carelessly are identified, few cases go through. This also happens when many judgments do not require participation in making a decision (Hondius, 2007).



There are numerous advantages of binding precedent compared to the adverse effects. Binding precedent is fair as every individual is subjected to similar judgment in any crime committed. This also prevents judges from under or overruling in a given case. Therefore, the binding precedent is highly practical and acceptable. When deciding, it is vital to understand the gravity and possible acute effects of the made a given court’s decision ring. TPastsimilar cases can provide insight into how to handle a given topic. However, it is essential to emphasize that the lower court’s decisions are not binding on the senior court; the higher court is free to give a different conclusion in any case. Considering cases presented before the court, they should ensure that the ruling takes into account the binding decisions of the superior courts. Binding precedent tends to dwell in the hand of few and imaginative ideas instead than practice and so does not apply in some cases. Therefore, judges must give a different ruling in each case. To avoid biasness, however, three or four sentences should apply to a single point.







Brown, L.N., and Kennedy, T. (2000), Brown and Jacobs: @ e Court of Justice of the European Communities (5th edn, London: Sweet & Maxwell).


Buxton, R. (2009) How the Common Law Gets Made: Hedley Byrne and other Cautionary Tales,’ 125 Law Quarterly Review, 60.


Harris, B.V. (2002), ‘Final Appellate Courts Overruling their Own “Wrong” Precedents: (e Ongoing Search for a Principle,’ 118 Law Quarterly Review, 408.


Hondius, E. (2007) Precedent and the Law,’ Electronic Journal of Comparative Law (at–3.pdf)


Rodger, A., (2005), ‘A Time for Everything under the Law: Some Reactions on Retrospectively’, Law Quarterly Review, (121), 57.


Scanlon, G. (2004), ‘Stare Decisis and the Court of Appeal: Judicial Confusion and Judicial Reform, 23 (JUL), 212.


Steiner, J., Woods, L., and Twigg-Flesner, C. (2009), EU Law (10th ed, Oxford: Oxford University Press).


Calculate the Price

Approximately 250 words

Total price (USD) $: 10.99