(i) Uncertainty. This refers to the fact that the degree of certainty provided by the doctrine of stare decisis is undermined by the absolute number of cases that have been reported and can be cited as authorities. This uncertainty is increased by the ability of the judiciary to select which authority to follow through use of the mechanism of distinguishing cases on their facts.
(ii) Fixity. This refers to possibility that the law in relation to any particular area may become set on the basis of an unjust precedent with the consequence that previous injustices are perpetuated. An example of this is the long delay in the recognition of the possibility of rape within marriage， which has only been recognised relatively recently.
(iii) Unconstitutionality. This is a fundamental question that refers to the fact that the judiciary are in fact overstepping their theoretical constitutional role by actually making law rather than restricting themselves to the role of simply applying it.
(b) Precedent in Civil Law
If Common Law judges look to previous cases in order to find law， judges in Civil Law systems look to legislation or general codes for guidance as to what the law is.
Thus the usual distinction to be made between the two systems is that the former， common law system， tends to be case centred and hence judge centred， whilst the latter focuses on legislation rather than judges. As a consequence the Common Law system is seen as allowing scope for a discretionary， ad hoc， pragmatic approach to the particular problems that appear before the courts; whereas the latter， civil law system， tends to be a codified body of general abstract principles which control the exercise of judicial discretion. In reality， both of these views are extremes， with the former over-emphasising the extent to which the common law judge can impose their discretion and the latter under-estimating the extent to which continental judges have the power to exercise judicial discretion. Also within the Common Law the focus on case law tends to lead to an underestimation of the extent to which contemporary law is the product of legislation， whilst within the Civil Law system the focus on legislation and codes tends to underestimate the lack of completeness in such systems： a lack of completeness that has necessarily to be filled in by the judiciary.
The prime form of judicial reasoning within the Civil Law system is a deductive one within which the judge is required to apply the general principles stated in the legislation to the facts of the situation. Where the case involves a new problem that has never been the subject of a legal case， the judge is supposed merely to apply the principles of the ruling legislation to those facts in order to reach a decision. The source of the law is therefore the legislation not previous judgements; consequently precedent has no place in such a system. However， as a matter of practice， consistency does tend to develop and judges within Civil Law systems will follow previous decisions. The point is that they are now required to do so.
相关文章：
编辑推荐：
（责任编辑：中大编辑）
微信公众号
网校手机版
Copyright © 2003 - 2020 www.wangxiao.cn All Rights Reserved. 中大英才（北京）网络教育科技有限公司 版权所有
出版物经营许可证:新出发京字第丰180113号
京B2- 20201340
京ICP备10212420号-1
京公安备11010602000551号
营业执照
