Judicial precedent is a ruling or legal case law which establishes a rule or principle that courts and other bodies of the justice system can apply when deciding a similar or subsequent case. It is not a mandatory system which a judge, jury, or panel of judges must use to determine the outcome of a case. According to the doctrine of stare decisis, lower courts must honor the findings of laws made by a higher court within the course of appeals when there are similarities in place for the matter at hand.
When giving judgement in a case, the judge sets out the facts, states the applicable laws to them, and then provides their decision on the matter. With regards to judicial precedent, it is only the ratio decidendi, which is the legal reasoning or the grounds for the decision that was made, that is binding to the courts later on for similar cases.
Any observations made by the judge on a legal question suggested on the base before them that does not arise to require a decision does not always qualify as a precedent because it is obiter dictum, or a “saying” on the matter. It is a different outcome which is not always binding on subsequent rulings.
Henrietta Newton Martin once said that the “interpretation of laws and its right application in its true spirit is the bedrock of any judicial mechanism and a legal system.” The advantages and disadvantages of judicial precedent work to create system that checks the crevices of previous decisions while shining the light of the law upon the facts of every case. It may be a small idea in some circumstances, but it can also provide profound results.
List of the Advantages of Judicial Precedent
1. Judicial precedent offers the legal system access to consistency and predictability.
The goal of any justice system should be to create a level of legal fairness throughout society. By providing value to the concept of judicial precedent, then there is an element of consistency and predictability that everyone can rely on when there is an issue that they face personally or professionally in court. It provides a guaranteed that every case will be treated and decided in a manner that is similar to pass decisions.
Because of the presence of judicial precedent in global legal systems, lawyers are able to advise their clients with some certainty as to the position that they should take in their situation, and whether it is beneficial to take such a problem to the court system.
2. It also offers the judicial system a certain measure of flexibility.
Judicial precedent may create a standard that applies to similar cases and situations, but it is not a binding result. Higher courts do mandate that lower ones follow rules to the letter, but then they reserve the right to change their mind when an appeal occurs or issues in society change. Judges may not write the laws, but it is their job to interpret them as accurately as possible in every situation. This system creates a series of checks and balances which influences other levels of government to serve and protect the population in the best possible manner every time.
3. There is always the potential in place to set a new precedent.
If a legal case is being heard for the first time in history, then whatever outcome occurs will set a judicial precedent for any upcoming issues that have similar circumstances. New situations arise all of the time in society, and they are not always covered by statutory rules or previous decisions. This concept in legal systems makes it possible for a judge to consider past similar cases that are not 100% exact or even take issues from other countries to make a ruling based on the available information. In some countries, this process can then create rules which serve as a precedent for future situations.
4. Judicial precedent helps the court system to save time on future rulings.
When the legal system has already provided an answer for a similar situation, then the past rulings can become the foundation of the current decision that is necessary for case resolution. That means judges can spend less time in deliberation because they already have access to the decision-making processes of others. This process makes it possible to come to a recent outcome that is fast and fair for all parties involved.
Because judicial precedent allows for consistency from case-to-case, the legal system at any level has more strength because it provides predictable outcomes for justice. This advantage can even reduce the crime rate in some communities because there is more awareness of what the consequences for specific actions will be if caught.
5. It creates a system which focuses on fairness.
The United States recently experienced an outcome in a case which did not follow judicial precedent, so the sentencing process did not feel fair from an outside perspective. In 2018, a wealthy businessman in California was sentenced to 90 days of house arrest after pleading no contest to the rape of a five-year-old child. The 79-year-old man did not even need to register as a sex offender as part of the settlement. Normally the sentence involves state prison, and then when you are released, you must register as a sex offender.
We need judges to follow judicial precedent because when the law is consistent, then it gives future victims a chance for protection. Although the family is filing a civil lawsuit in this matter, receiving money is not the same thing as receiving justice.
6. The structure of judicial precedent works to prevent mistakes from occurring.
When there is an unusual ruling as described in the point above, the general population understands that such an outcome is a mistake made by the system. Because we create a structure which provides consistency that everyone can follow, there are fewer mistakes that happen when everyone stays on the same page. This advantage should not be confused with minimum mandatory sentences, because the goal of a justice system should be to make right in the best way possible what was made wrong.
Judges who follow judicial precedents can use the guidance of their peers in the past to create a resolution that can help all parties find a way to move forward through justice. That makes the outcome feel more robust that it would be if a ruling seems to come out of left field.
7. Judicial precedent reduces the likelihood of a successful appeal.
When a judge follows the existing judicial precedent, then it gives the outcome of the case a stronger foundation for future appeals as well. Because the ruling given follows the same thought processes of previous cases with similar circumstances, the higher courts are more likely to allow the original willing to stand. This advantage is possible because the case laws which govern the decision-making process for the current judge are treated as a rightful interpretation of what the original statutes were meant to convey.
With judicial precedent, you are preserving the integrity of the justice system from the local level to the national one.
List of the Disadvantages of Judicial Precedent
1. Judicial precedent adds multiple layers of complexity to the legal system.
The judicial system in the United States offers three layers of federal courts to consider, and then there are another three layers at the state level. Every ruling from every court creates the possibility of setting a judicial precedent. That means a case that starts in state court, and then moves to the federal system, could generate up to six different potential precedents for future situations.
The complexity does not stop there. When there is a judgment from an appeals court in the United States, then it may contain between 3 to 5 separate judgments that differ from one another. You can even find situations where the Supreme Court of a state or the country has each judge issuing their own perspective on a matter to create even more precedents. Judgments can be exceptionally long, and it is for the future of lawyers and judges in these cases to work out what is applicable and what is not.
2. People may not agree on what the judicial precedent actually is in a case.
Even when a judicial precedent set a clear line on the expectations involved in a case for future consideration, there is no guarantee that another judge will see the law in the same light. There can be differing opinions on what the actual purpose of a ruling happens to be, creating a measure of uncertainty that can never be resolved until the next ruling is issued. Once that occurs, another charge can step in and interpret for the situation in a third way.
Judicial precedent might offer some cases a measure of consistency and support, but it can also be worthless when the opinions of those involved differ by a significant margin.
3. Every case must face uncertainty until a final ruling is made.
Because our court system is not bound by any previous rulings in a current case (unless it is a lower court ruling on what a higher court decided already), the results of any given situation will remain uncertain until the final ruling or appeal judgment is made. There are some judges who are more than willing to depart from a precedent because they wish to do what is right for the individuals involved in the case they are hearing. Then there are others who treat judicial precedent as it is it is part of the laws passed by the legislature, unwilling to depart from it to make changes in the law.
4. Judicial precedents create rigidity in systems that sometimes need flexibility.
The rules which are created from judicial precedents can remain in place for a significant amount of time. It is not unusual for these written or unwritten rules to apply even when they are outdated. Many judges will not make any changes to the perspective of the law until a case comes through which requires such an action. Some changes require a case to come to a higher appeals court before new rules can come about because of this system.
The number of outdated, meaning less, or ridiculous laws that are available for enforcement today are numerous. Here are just a few examples of some problems that people could face because of this disadvantage of judicial precedent.
- There is a lot in Minneapolis which prevents red cars from driving down Lake Street. All other colors are permissible.
- Utah says that a marriage between cousins is against the law only if they are younger than the age of 65.
- In Waynesboro, Virginia, it is against the law for a woman to drive a vehicle on Main Street unless her husband walks in front of the car while waving a red flag.
- In Eureka, Nevada, it is against the law for a man to kiss a woman if he has a mustache.
- Arizona has a law which says that if you are found stealing soap, then you must wash yourself with it until the bar of soap is completely gone.
5. It forces the justice system to look backwards instead of looking toward the future.
A judicial precedent must always be looking backwards for it to create a standard in the first place. If someone finds themselves violating a rule based on what a judge has ordered in the past, that it creates an unfair system of justice because the offense comes from the judgment instead of legislation. This type of system does not occur in the United States, but it is possible to have it happen in other developed countries.
That is why a system of statutory laws which look for future acts as criminal offenses is usually considered to be a fair system of justice. Instead of searching through thousands of different legal rulings to see if someone has done something wrong, statutory ask create legislation which become part of the public record.
6. This process can introduce unnecessary restrictions into the law.
Judges can rule on specific cases in ways that a legislative body would never anticipate. If such a situation occurs, then the process of judicial precedent can introduce unnecessary restrictions into the law. Although it is necessary for legal systems to stay up-to-date with the changing circumstances in society, this disadvantage often makes it difficult, if not impossible, for judges to develop the legal doctrine that is necessary to provide a justifiable outcome. Instead of looking at the present circumstances of a case, this philosophy can cause judges to rely on previous decisions which may not apply under the current circumstances.
7. Judicial precedents can create more applicable decisions for a case than is necessary.
One of the significant disadvantages of judicial precedent is that the total volume of cases which exist in the law may result in too many of them being available to consider. This issue can cause confusion because attorneys on both sides could potentially offer a precedent from case law that justifies their position to the court. It would then be up to the judge to determine which side has firmer ground to stand on when making their arguments in an adversarial system.
8. Some judges might look for reasons why the judicial precedent shouldn’t be followed.
There are times when a judge gets so frustrated with the circumstances in society or the legal system in general that they look for ways to get around the judicial precedent that is in place. You can tell when this issue occurs in the court because the decision or ruling which is rendered seems illogical. When the doctrine is not enforced as intended, then there can be dangerous consequences to such an action. Overruling previous cases to set a new precedent can do more than spark outrage. It could potentially set aside convictions or verdicts.
9. Outside rules can change how the doctrine of judicial precedent applies.
Since the Human Rights Act of 1998, the doctrine of judicial precedent has seen significant weakening because of the way that principles and rules must now apply. They must be read in such a way that they are compatible with whatever rights are contained in the European Convention of 1951, which means amendments are necessary to change any issues which may create a conflict. This outcome makes it possible for the lower courts to overturn higher court rulings because of the outside legislation mandating domestic change.
This rule applies elsewhere in similar ways as well. When states in the U.S. authorized marijuana for recreational use, the legal precedents set at the federal level were suddenly wiped away at the state level of the justice system. Washington and California found themselves commuting sentences, changing legal guidelines, and updating their judicial precedents based on what voters wanted.
Conclusion of the Advantages and Disadvantages of Judicial Precedent
The presence of judicial precedent makes it easier for the courts to make decisions when the case before them is a reflection of previously-decided law. This system certifies that the consistency and certainty provided within the justice system offers a fast, effective judicial process that works effectively and fairly for everyone. When every case receives a similar outcome when the facts are equal, then the outcomes are predictable.
The rules and principles developed under this system create more flexibility in the judicial system as well.
The advantages and disadvantages of judicial precedent can also have an adverse impact on society. It can stop the law from being updated to reflect the current needs of society. There can also be complexity in the system which creates robust confusion that ultimately makes it a challenge to implement the law in its intended manner. That is why an adversarial system of representation must always look for relevant cases to determine what the potential outcome could be for any case.
Natalie Regoli is a child of God, devoted wife, and mother of two boys. She has a Master's Degree in Law from The University of Texas. Natalie has been published in several national journals and has been practicing law for 18 years.