because, for example the law is working well or because law has given a
licence or quota to firms and revoking them would work major injustice.
Where a government starts to become increasingly unpredictable in its
decision making firms are likely to be a reluctant to make new investment. With
sufficient threat of instability there will be a flight of capital from the
jurisdiction.
Court
Avoidance of predictability costs is a reason that a court will be very willing to
decide the best version of a rule when there is disagreement in the cases over
the existence or definition of the rule itself. A
rule is strong when it has been
unanimously stated, affirmed and applied; it is weaker if there has been
divergence in the cases and dissenting judgments.
334
The more ambiguous and
uncertain a rule is, the more a later court has to reconsider and redefine it. By
contrast a court is less likely to change a decision which has been consistently
applied and confirmed in a line of cases because such change would generate
substantial predictability costs.
335
Symbolic Costs
There is a significant symbolic cost arising from a change of law, although it
applies more to judge made law than statute law. This cost consists of the
equality cost arising from lack of continuity. Continuity brings “uniformity”
and “consistency” to law.
336
By this means like cases are treated alike, so that
“similarly situated persons” are treated “similarly”.
337
Hence we are all equal
before the law, which “appears to be at the heart of our received notions of
justice”,
338
enshrined in the maxim that “justice is blind”.
339
This is a symbolic
benefit,
so that there are symbolic costs when this benefit is diminished. It
tarnishes the “image of justice”.
340
___________________
334
John v FCT (1989) 89 ATC 4101 at 4112 at 4119-4120
335
John v FCT (1989) 89 ATC 4101, 4112 at 4119-4120
336
Mirehouse v Rennell (1833) 1 Cl & F 527 at 546 per Parke J
337
Peters (1996) at p 2043. For judicial indorsement of this principle see James
B Beam Distilling Co v Georgia 501 US 529 at 540 (1991).
338
Currier (1965) pp 235-238
339
This is illustrated by the traditional visual symbol of "Justice," which is a
woman who is blindfolded and holding scales and a sword. The scales are for
weighing right and wrong; the sword is to punish the guilty; the blindfold is to
show that justice is impartial (that is, it does not treat friends differently from
strangers, or high-ranking people better than humble ones, because it does not
"see" them). But the woman symbolizing justice is not deaf, because she listens to
all the evidence put before her.
340
Currier (1965) pp 235-238
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