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Sources of Law : Precedents

Precedents as a source of law

 

Previous instances and cases applied as examples of the rule to further questions or cases are precedents. A precedent is a statement of law found in a judicial decision of a superior court, meant to be followed by the same court as also by sub-ordinate courts. Generally, precedents mean a rule or a principle applied previously by a competent authority under similar facts and circumstances. The fundamental principle behind this is that like cases should be treated alike. Thus it shows that Precedents as a source of law are very important.

Grey: Everything said and done, furnishes a rule for future practice.

Keeton: Judicial decision to which authority has in some measure been attached

Jenks: A decision by the competent court of justice upon a disputed point of law which becomes, not merely a guide but an authority to be followed by the courts of coordinate or inferior jurisdiction, administering the same system, until it has been overruled by a court of superior jurisdiction or by statute of superior authority.

Salmond: In loose a sense, it includes merely reported case law which may be cited and followed by the courts, in the strict sense, precedents mean that case law which not only has a great binding authority but must also be followed.

Precedents hold a great value in English legal system because most of the common law is unwritten and it owes its origin to judicial precedents. In English legal system, it holds authoritative value.

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Nature of Judicial Precedents

A judicial precedent is always constitutive in nature and never abrogative. It can never abolish a law, it can only make it where there is a gap between codified legislation. Judges are not at liberty to abolish the already settled principle.

The process of the judicial decision may be

  1. Deductive
  2. Inductive

Deductive

It is associated with the codified system of law. It assumes that legal rules applicable to a particular case are fixed and judges have to apply them to give justice to the party and he has to apply these rules without his personal view. This implies that judge’s decision is deducted from general to particular in circumstances of the case before him.

Inductive

Inductive method is a characteristic of English law, it starts with the same primary object of finding the general principle applicable to the particular case, but it does not conceive the rule as being applied directly by the simple method of deduction. Rather it involves moving from particular to the general.

Kinds of Precedents

Precedents as a source of law

Authoritative precedents

The precedents which are binding on all courts are known as authoritative precedents. They are binding upon judges and are regarded as legal source of law. Authoritative precedents are, thus, rules of law. Example, decision by supreme court of India

Precedents become binding depends on two main factors

  1. It must have been pronounced by the court which is sufficiently senior
  2. It is also ratio decidend, i.e., reason behind the decision which is binding

Persuasive precedents

These are not binding on courts, but can be taken into consideration while giving decision. They are only historical source of law. Decision of a High court in their jurisdiction are authoritative and binding but outside their territorial jurisdiction they are just persuasive. Some of the persuasive precedents are

  1. Foreign judgments
  2. Decision of superior courts in other portions of commonwealth
  3. Judgments of privy council
  4. Orbiter dicta
  5. Authoritative text books and commentaries

Original precedents

They are precedents which create or establish new rule of law

Declaratory precedents

They are precedents which merely reiterate and apply an already existing rule of law.

The binding force of precedents

The binding force of precedents is not same in all countries and it largely depends on the legal system of the country. In the USA, England it can be cited as an act of the parliament. Even in India, the decision of the supreme court has authoritative value.

Object of Precedents

The object of precedent is that if a particular case is decided and a case with similar facts is pleaded again in the court of law, then later case must be decided in the same manner as it was done in former.

Precedents in India

The doctrine of judicial precedents was not known to India before the establishment of British rule. After the enactment of Government of India Act, 1935, it got judicial recognition under section 212 of the Act. The position became clearer after 1950 and doctrine got constitutional recognition.

Supreme Court

Article 141 of the constitution of India provides that “the law declared by Supreme Court shall be binding on all courts within the territory of India”, thus decisions given by Supreme Court are binding on all courts.

Supreme Court is not bound by its own decision and it can change them. They are only of persuasive value. Further Supreme Court is not bound by the decision of the federal court and Privy Council, and it can overrule them.

High Court

  1. Decisions of the High court are binding on all courts below it within its jurisdiction
  2. The decision of one High Court is not binding on another High court though they have persuasive value
  3. The judges of a high court sitting alone are bound by the decision of a bench of two or more. Full bench decisions are having an absolute binding character, and generally, it should be accepted by another full judge bench.
  4. Decisions of High Court are binding by the virtue of article 225 of the constitution of India.
  5. Pre-constitution (1950) decisions of Privy Council are binding on all high courts unless they conflict with any decision of Supreme Court.
  6. The high court is bound by the decision of Supreme Court, but it is not binding if it has already been overruled by the Supreme Court itself.

Position in England

In England, the House of Lords is the highest court in the hierarchy. Therefore all the courts are bound by the decision given by it.

Merits of Doctrine of Precedents

  1. Precedents are judge-made law. Therefore, they are more practical as they are based on actual cases.
  2. They bring a scientific development in the law. Precedents bring logical perfection in law
  3. They mold and change the law according to the situation and thus bring flexibility in the law.
  4. They bring certainty in the law as the similar decision is given on similar facts

Demerits of Doctrine of Precedents

  1. Development of law depends on the legislation
  2. Sometimes, conflicting decisions of higher courts throw judges of the lower court in a dilemma
  3. There is the possibility of overlooking authorities
  4. Sometimes an extremely erroneous decision is established as law.

The doctrine of prospective overruling

The decision of the full bench in binding on the division bench, similarly decisions of the division bench in the binding on the similar bench. Cases of Supreme Court are binding on all the lower courts.

Sometimes it needs to overrule the previous decision and when a division is overruled it acts as an authoritative declaration. Generally, an overruled decision would not be regarded as good in law because it will bring all the previous decision into question which is decided on bases of that case. Thus to remove the hardship, the highest court, when it overrules a decision it restricts its operation to later cases only. This is known as prospective overrule.

This was evolved in the case of. In that case, the validity of the constitution, 1st, 4th, 17th amendments was challenged. It was declared that the amendments were invalid and overruled an earlier decision.

Previous judgment can only be discarded under following circumstances

  1. If it was given in ignorance of law
  2. If earlier decision is inconsistent with the decision of higher court
  3. Earlier decision is unreasonable

Ratio Decidendi

The expression literally means “Rule of law or ruling or knowing the law”. Ratio Decide is a principle of law made b the judge to decide the problem. When the decision given by a court is accepted as a valid precedent, the court furnishes valid reasons on which the decision was given on that particular case. The whole of the decision is not binding in future cases, only the ratio decidendi are binding.

Ratio Decideni communicates with ‘material facts’ of the case. It is extracted by finding the material facts and looking at the judgment of any case and this ratio decidendi acts as a precedent for another case on like lines.

It means “reason for the decision” which not only binds the parties to the case but forms as a law to the future cases.

For the purpose of application of this principle, the facts of the two cases must be identical and relevant otherwise the principle will not apply.

Orbiter Dicta

Orbiter Dicta are observations made by the judges, which are not essential for reaching the decision. Thus they are not binding. They are binding only on the parties to the case and not on future cases. Thus they do not make a law. It is a statement or a mere saying or remark made by the judge and it is not binding on the courts but it just has persuasive value.

 

Sources of Law

Legislation as Source of Law

Customs as Source of Law

 

Books Referred: Jurisprudence

The legal theory by B.N. Mani Tripathi

Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape

 

 

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