Predictability Costs
And always keep a-hold of Nurse
? / For fear of finding something worse.
327
A
change
of
law
makes
law
less
predictable.
328
It takes
away the benefit of
stability and continuity so that law is no longer certain and predictable.
329
This
is a problem because society places great value on the stability of many
institutional arrangements.
330
Continuity enables people to know what the law is now and will be in the
future, promoting “the necessary perception that law is stable and
unchanging”.
331
It enables law to keep faith with established expectations so
that precedent protects reliance.
332
People know how to run their lives because
they know what rules will govern them. Therefore they can make plans for the
future with some confidence that the rules regulating them will stay the same,
something which is most important in a developed economy. Without this
confidence they are less likely to engage in long term planning with a resulting
decline in productivity and
efficiency. By contrast, changing a rule “would
upset existing plans made by fair men” in business and commerce.
333
Indeed contemporary society is founded on the consistency and blindness of
the law. Modern business transactions must occur within a legal framework
that promises redress for breaches or unjust conduct; citizens must be able to
interact with the certainty that crimes against their person will receive
appropriate redress from the state to deter offenders.
Legislature
Citizens are used to legislatures making new statute law. So, in this general
sense, they live with some unpredictability. Moreover, some specific changes
are predictable, for example because it is known that the government is
contemplating change or that a law is not working well and some citizens are
pushing for change. On the other hand, some changes are considered unlikely
___________________
327
Hilaire Belloc “Jim -
Who ran away from his Nurse and was eaten by a
Lion
?”. This is a poem in Belloc’s book
Cautionary Tales for Children.
328
Jones v Commonwealth (1987) 61 ALJR 348 at 349, 71 ALR 497 at 498
329
Kingston v Keprose
(1987) 11 NSWLR 404 at 423, Peters, (1996) at p2039,
Mirehouse v Rennell (1833) 1 Cl & F 527 at 546 per Parke J, Archer v Howell (1992) 7
WAR 33
330
Currier (1965) pp 235-238
331
Peters, (1996) at p 2039. See also Planned Parenthood v Casey
505 US 833 at
853-868 (1992).
332
Currier (1965) pp 235-238
333
Carter and Burke (2007) p 55. This was a comment on Crowley v Lewis 239
NY 264 (1925) where the court refused to hold an undisclosed principal liable on a
contract signed by their agent under seal.
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