12.4 Effect of precedent on law making

Consistency and Predictability

limitation

• difficulty and cost involved in finding relevant precedent

• Difficulty in identifying the legal reasoning behind decisions

• Difficulty in predicting future development

Flexibility

through process of reversing, overruling, distinguishing and disapproving, precedents change and develop

limitations

• doctrine of precedent restricts ability of lower courts to change law in cases where they are bound to follow a previous precedent established in a higher court

• Judges in superior courts may be reluctant to reverse or overrule

• Judges in courts of same standing consider precedents to be highly persuasive and rarely overrule them

More limitations

• Judges must wait for relevant cases

• Judges in superior courts are restricted to making laws that is needed to clarify issues or matter raised in the case before them

• Judges make law ex post facto: A legal term used to describe a law that is established in relation to an event that has already taken place

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