One of these two methods can be used to discredit a precedent:
1). A court of superior jurisdiction may overrule it. This would mean that the precedent ceases to be valid and has no retrospective effect. Transactions entered into prior to the ruling date will also be affected.
2). It may be refused by a court of concurrent jurisdiction. In such cases, the precedent will not be followed but it will still apply to the new decisions.
The Elements of Gaining Weight to Precedents
These are the circumstances that tend to increase authority for a precedent:
The Court’s unanimous decision.
Approval or confirmation of the decision by other courts. If it is affirmed by a higher court, it will be given additional authority.
The Judge who gives the decision.
The profession is not subject to criticism.
The learned argument, consultation with the Judges or any other great deliberations.
It is the fact that an Act was passed on the same subject matter without having to reverse the decision.
Elements that lower the value of Precedents
These can be summarized as follows:
The Judges are not unanimous.
It is impossible to notice a different decision.
Relying on a case without authority can lead to being misled.
Absence of final judgment
Decision-based on compromise.
The decision has been taken ex parte.
In the absence of argument at Bar or by the Court, Judgement
The decision was made in haste – the question wasn’t fully argued (such like those in summary proceedings).
Case being badly reported.
The Judges reached agreement in the outcome but not in reasoning.
This decision was made in order to avoid any special hardship.
This decision was questioned or criticised.
It is either embarrassing or unfair.
Advantages of legislation over precedent
There are many benefits to using legislation as a source for law, over precedent.
i). While the legislation can be both abrogative and constitutive, the precedent can only be constitutive. The legislation is both a source and an instrument for abolishing existing law. This virtue is essential for legal reform. It is not possessed in any precedent that can produce new laws but cannot reverse those which are already in place. The legislation is an indispensable instrument for both the growth and reform of law.
ii). Because the legislation is based upon the principle of division, efficiency is assured. Because the legislation and the judicial functions are separate, they can be done more efficiently by different organs. The legislative works on the legislation, while the judiciary focuses on the interpreting and application of the law.
iii). The law fulfills the requirement that laws must be known before they can be enforced. The law is made within the type of legislation, and the courts then enforce it. The law is officially declared to the people, and those who violate it are punished. Precedents are different. It is declared and created in the act of applying it and enforcing. It does not require precedent to be declared. It is immediately applied.
iv). Although the legislation creates rules for cases that have yet to arise, precedent must wait until the actual and specific incident is before the courts. While precedent is dependent on the outcome of litigation, legislation is independent. Precedent must be established only after a case has been brought before a court. Legislation may be moved immediately to fill the vacancy or resolve a legal question.
v). Precedent is better than the legislation. It is concise, clear, easy to understand, and easily accessible. The vast and growing number of records relating to litigation conceals case-law from view and knowledge.
Advantages of precedent over legislation:
i). Precedent has some advantages over legislation. Dicey says that the morality of the judiciary is more moral than the morality a politician. Politicians can be influenced by popular passions and make poor laws. Judges, on the other hand, can decide cases in a calm environment and can hold the balances even between opposing parties. They are impartial and fearless in their duties.
ii). Salmond says that case-law is more flexible than statute law. Statute law is subject to rigidity. The letter of the law is binding on courts and they cannot ignore its equivalent. The analogical extension of precedent is permitted. While legislation is an important instrument of reform, it is also true that precedent is an integral part of the making of law. However, it is not possible to abrogate the law.