Why might precedent cause problems for the development of Law? Understanding the term 'precedent', and how it's narrow and broad sense affects the British Court system, it is easy to consider how it might also constrict and disregard the need for progression and modernisation. Some might argue in favour of old-fashioned methods, some may not. Let us first look at rigidity. In 1966, the House of Lords recognised the need to 'deviate' from the inflexible origins of Stare decisis, and the Lord Chancellor issued a practice statement to allow freedom of this principle "… where appropriate…
" This is all well and good, should a litigant secure rights for appeal, if not, his/her case will be bound by set precedent and applied by the Court in question. A good example of this is Priestly v Fowler 1837, this principle stated that if an employee was injured by a fellow employee whilst carrying out the duties necessary for their respective work, their employer was not liable vicariously (through that person) for that negligence. This rule operated at a time of great industrial development and bound Judges most unreasonably for over a century, not being reformed until the introduction of the Personal Injuries Act 1948.
This situation could still ensue today. So how can rigidity be avoided? Many barristers seek to 'distinguish' the facts of their case as differing from the lawsuit being cited, thus avoiding precedent. The previous judgment may be 'reversed' or 'overruled', the Judge considering the ratio decidendi too wide or the conclusion reached Per incuriam, this, however, allows the Judge to create new law, and the questions of democracy and negligence must be considered.
This un-elected intervention, even more paramount when there is no precedent or Obiter dicta to refer to, allows the Judge to be free to rule as he sees fit. The common Law being a Judge-made system of Law, originating in ancient customs that have been clarified, extended and universalised by Judges through the ages. Another way in which precedent can slow the development of the Law is the sheer bulk of case history. Whilst attempting to liken a case to a previous example, it may become possible to loose sight of the initial purpose amidst the immeasurable number of cases cited for referral.
So many decisions throughout history may mean that one party might 'confuse' the issues and succeed in gaining a favourable result simply by obtaining the most relevant cases. This could also mean that applicable cases are overlooked. Of course, to cite cases relies on good law reporting. Precedent can also be seen to be limiting. Judges and Counsel feel obliged to spend time concentrating on and 'nit picking' at the differences of cases so as not to have to follow precedent, only to find that the cases are fundamentally the same and cannot boycott the doctrine.
Case Law, (Common Law) is also slow to respond to the changes in society. As most cases are now judged by a forerunner, waiting for change is sluggish and uncertain. Jeremy Bentham likened this to 'Dogs Law', waiting for the offence before being able to punish, is this really what a declining westernised society needs? It is most perplexing to spend too long considering an alternative to precedent. It is definitely two sides of the same coin, allowing some form of custom and consistency yet stoic (indifferent) and unyielding, and as such will hinder Law reform until an alternative approach is ascertained.