Precedent is the basis of common law and therefore the American judicial system. In theory, the proper application of past decisions should provide clarity and stability to court decisions. However, there are also many objections to the strict use of judicial precedent and potential disadvantages to reliance on past decisions over other factors.
The Advantages of Judicial Precedent
Precedent means following the example or ruling set by a court when judging a similar case. In theory this should provide a solid foundation for judges to base a future ruling off, provided the line of reasoning and conclusions reached follow the established precedent.
The application of well known precedents also makes it easy for other actors in society to understand and conform to the law. If judicial rulings and punishments follow an established rule, it cuts down on the appearance of favoritism or unfair persecution under the law that can arise as a result of different outcomes to similar cases.
Jurisdictions that apply common law are some of the oldest continuously operating judicial systems in existence. This is in no small part a result of the continued application of precedent over time. If citizens or actors in a society are clear about what the rules are and outcomes when they are violated, it has been shown to support better governance and economic performance.
The Disadvantages of Judicial Precedent
1. Constrains Judicial Decisions
One of the primary responsibilities of a judge is to use their discretion when applying the law. By forcing independent judges to follow a strict precent, it forces them in some cases to apply a harsher or lesser penalty than they otherwise feel is deserved. While many will point to this lack of ambiguity as an advantage, the constraint it places on judges when interpreting the law can also be a disadvantage at times.
2. Enshrines Bad Decisions
The appeals process exists because the system allows for the possibility that judges and juries can err in their application of the law. A flawed decision can be reversed on appeal but when a decision automatically becomes precedent that can be followed in future cases, it can perpetuate bad law and potentially undermine the judicial system.
Some aspect of the law are immutable however others rules and regulations change over time. While judicial precedent does protect the enduring principles upon which the most important rulings are based, it can also limit the ability of the law to adapt to new developments in society.