Advantages and Disadvantages of Precedent

With the constant increase in the bulk of reported cases, the future of the doctrine of
precedent is becoming a matter of utter conjecture. According to Goodhart, the position in
America is still worse because of tremendous rise in the volume of reported cases annually.
Many of the relevant authorities are overlooked due to multiplication of case-law with the
result the doctrine of stare decisis is gradually losing its importance, the doctrine to operate
effectively requires that the Bench and the Bar should keep themselves well informed about
the latest case-law and up-date their knowledge of cases through regular study of decided
cases. Undoubtedly, judicial precedent is still a potential source of law despite its demerits.
The merits and demerits of precedent as a source of law may be briefly summarised as
follows:
Merits
1. Case-law being an outcome of continuous judicial process, it is more in keeping with the
needs of the society. Precedents enable the Judges to re-shape law according to the social
needs and at the same time binding authority of the precedent acts as an effective check on
the arbitrary discretion of the Judges. That apart, precedents being based on vast experience
and maturity of the Judges, provide useful guidance for the deciding-judge in disposing of
the cases.
2. Precedent being the result of concrete problems which actually arose in the case, gives
rise to practical and perfect law whereas the law enacted by Legislature is mostly based on
assumptions and imagination and therefore, it is an imperfect and abstract law.
3. The law contained •in case-law is certain and easy to understand. Once a case is decided,
people know it with certainty as to what would be ruling in similar cases which arise in
future. Therefore, precedent helps people to know the intricate principles of law to a
considerable extent.
4. Precedents provide useful guidelines for the Judges in deciding cases before them.
5. Citing of precedent and case-law helps the members of the Bar to substantiate their
argument without waste of unnecessary time and energy. Much of the time of the Judges
and advocates is saved in searching the relevant law from law books.
6. Precedents provide flexibility to law to adapt itself to new situations and social conditions
The case-law relating to right to property in India from Sankari Prasad1 to Minerva Mills2
decision and changes in judicial trend in this regard sufficiently illustrates this point.
Demerits
Despite the aforesaid advantages of judicial precedents, it has certain disadvantages which
also deserve a mention. They are :-
i. The judicial precedents are published in law-reports which are in such a large number that
it becomes practically difficult to find out a particular case from such a voluminous legal
literature. This is why it has been said that caselaw is a gold in the mine while statute law is a
coin ready for immediate use. At times, different courts express conflicting opinions on the
same point which renders the validity of precedent doubtful and uncertain and there is
always a possibility of erroneous judgment in such a case. This problem has, however, been
considerably eliminated by availability of reported cases online.
2. Bentham did not recognise precedent as law at all because it lacks binding force of the
State. Austin, however, did not subscribe to this view because in his opinion Judges are the
agents of the sovereign and therefore, the law pronounced by them is as good a law as the
law promulgated by the State.
3. According to Federick Pollock, the law based on case-law is incomplete because trye Judge
takes into consideration only those facts which are involved in the case before him. Thus the
law so evolved is never complete and comprehensive.
Perhaps it is for this reason that the Supreme Court in the case of Sayrabano alias Sultania
Begum v. State of Maharashtra1 has ruled that criminal cases should be decided on facts
and evidence rather than on case law and precedents. In the instant case, the Supreme
Court dismissed the appeal filed by the appellant against her conviction under Section 302,
l.P.C. on the charge of murdering her daughter...in-law by burning. Though the deceased in
her first dying declaration had absolved the mother-in-law and others recorded by the
Magistrate but alleged that she was burnt by her mother-in law, in her second dying
declaration recorded by the same Magistrate. The Court held that there was ample evidence
to show that prior to the incident in question the appellant used to beat the deceased and
ill-treat her. In the light of the said fact both the courts below were right on relying upon the
second dying declaration of the deceased.
4. Another objection which is quite often raised against judicial precedents is that it
overlooks the fundamental rule of natural justice that law must be known before it is
actually enforced. Needless to say that case law is always ex post facto. It is only after the
parties have gone to a court and the court decides the matter, that principle of law is
evolved.
5. At times, erroneous decisions of superior courts create practical problems for the
subordinate Judges as they are bound to follow these decisions, however, wrong or
defective. This adversely affects the growth and development of law in the right direction.
6. It is generally alleged that precedents are an outcome of hasty decisions of the courts. But
this criticism is hardly tenable because the precedents are usually a result of a good deal of
careful deliberation by expert and experienced Judges who are fully conscious of their
sacred duty to impart fair justice.
7. One of the greatest set-back of precedent is that the development of law through case-
law more or less depznds on chance. If there has been no litigation on an important legal
issue, the court shall never have opportunity to create precedent on that point and no case-
law would be available on that issue.
8. Bentham holds that judicial precedent is arbitrary in character. Unlike legislature, the
Judges are not responsible to anyone hence they are likely to be arbitrary in using their
discretion. But this contention is not tenable because although the judges are not
responsible to the electorates like legislature, they are certainly guided by public opinion
and professional opinion of the Bar. That apart, the fear of strictures being passed against
them, also keeps them within bounds.
9. Last but not the least, one practical difficulty in case of judicial precedents is that what
should be test for determining the validity of law made by case law? Should it depend on the
number of decisions in which the precedent in question has been followed or should it
depend on the reputation of Judge who decided the precedence? There being uncertainty
on this point, the reasonableness and vahd1ty of law made by judicial precedents always
remains a debatable issue.