What is Precedent

A precedent is an established rule or solution that has been set by the resolution of a previous,
similar circumstance as the one in which the precedent would be employed.

In the common law, precedent is derived from the Latin principle of stare decisis (star-A deh-
sye-sis). This translates to "stand by the decision" and is used in delivering justice.

Importance of Precedent
In a common law system, judges are obliged to make their rulings as consistent as reasonably
possible with previous judicial decisions on the same subject. The Constitution accepted most
of the English common law as the starting point for American law. Situations still arise that
involve rules laid down in cases decided more than 200 years ago. Each case decided by a
common law court becomes a precedent, or guideline, for subsequent decisions involving
similar disputes. These decisions are not binding on the legislature, which can pass laws to
overrule unpopular court decisions. Unless these laws are determined to be unconstitutional
by the Supreme Court, they preempt the common law precedent cases. Judges deciding cases
are bound by the new law, rather than the precedent cases.

The English Common Law system, which originated in the late Middle Ages, developed as a
way of imposing consistency among judicial opinions.

One way to achieve such consistency is to impose it top-down. However, the whole purpose
of having judges and courts was, and still is, to apply the laws to specific situations that the
legislators could not necessarily foresee.

Therefore, principles imposed from the top down have trouble covering every new situation
that comes along.

Common Law developed a set of principles based on precedent. In this system, judges
consult the previous decisions of other judges—particularly the principles of appeals courts—
and apply those principles to new cases as they come along.

The general rule is that previous principles can be overturned, but only if there is a strong
reason to do so, which judges must cite in their decisions. In addition, higher courts of appeal
have authority to overturn lower court’s decisions on the basis of their simply being wrong.
Precedent as a source of law

Judicial precedent is the source of law where past decisions create law for judges to refer
back to for guidance in future cases. Precedent is based upon the principle of stare decisis et
non quieta movere, more commonly referred to as ‘stare decisis’, meaning to “stand by
decided matters”. A binding precedent is where previous decisions must be followed. This
can sometimes lead to unjust decisions, which I will address when talking about the
advantages and disadvantages of binding precedent. First I will address how the process of
judicial precedent works, including the hierarchical structure of the courts, moving on to the
advantages and disadvantages of using the doctrine.

A binding precedent is created when the facts of a latter case are sufficiently similar to the
facts of a previous case. The doctrine of precedent is often referred to as being a rigid
doctrine. Within the court hierarchy, every court is bound to previous decisions made by
courts higher than them. At the very top of the court hierarchy is the European Court of
Justice, followed by the House of Lords, which is considered to be the Supreme Court as
many laws do not concern European Union law. Decisions made by the House of Lords
become binding on all other courts within the hierarchy. Below the House of Lords is the
Court of Appeal, which has two divisions, civil division and Criminal division. Both
divisions are bound to decisions made by the House of Lords and the European Court of
Justice. Additionally, they are bound to their own decisions, with the exception that the
Criminal division is more flexible where a case involves a person’s liberty. The Divisional
Courts along with the High Court are also bound to decisions made by the House of Lords
and the European Court of Justice, with the addition to the Court of Appeal, and the
Divisional Courts in the case of the High Court.

Kinds of Precedents

1) Authoritative precedents
According to Salmond, an authoritative Precedent is one which Judges must follow
whether they approve it or not. Authoritative Precedents are the legal sources of
law. Authoritative Precedents establish law in pursuance of definite rule of law which
confers upon them that effect. The authoritative Precedents must be followed by the
Judges whether they approve of them or not.
Authoritative Precedents are of two kinds, Absolute and Conditional.

A)Absolute:
In case of absolutely authoritative Precedents, they have to be followed by the
Judges even if they do not approve of them. They are entitled to implicit obedience.

B)Conditional:
In the case of authoritative Precedents having a Conditional authority, the
Court can disregard them under certain circumstances. Ordinarily they are binding but
under special circumstances, they can be disregarded.

2) Persuasive precedents

A persuasive Precedent is one which the Judges are under no obligation to follow but which
they will take into consideration and to which they will attach great weight as it seems to
them to deserve. Persuasive Precedents are merely Historical. If Persuasive Precedents
succeed in establishing law at all, they do indirectly by serving as the Historical ground of
some later authoritative Precedent. They do not have any legal force or effect in themselves.
The Persuasive Precedents can merely persuade the Judge but it is up to the judge to follow
or not.

3) Original precedent

According to Salmond , an original Precedent is one which creates and applies a new rule. In
the case of Original Precedent, it is law for the future because it is now applied. The number
of original Precedents is small but their importance us very great, they alone develop the law
of the country. They serve as good evidence of law for the future.

4) Declaratory precedents

According to Salmond, a declaratory precedent is one which is merely the application of an

already existing rule of law. In the case of declaratory precedent, the rule is applied because it
is already law. In case of advanced countries, declaratory Precedents are more numerous. A
declaratory precedent is good as a source of law as an original Precedent.
 The legal authority of both is exactly the same. An original Precedent is
an authority and source of law but both original and declaratory Precedents have their own
value.

The Doctrine of Precedent

Courts cite to stare decisis when an issue has been previously brought to the court and a
ruling already issued. According to the Supreme Court, stare decisis “promotes the even
handed, predictable, and consistent development of legal principles, fosters reliance on
judicial decisions, and contributes to the actual and perceived integrity of the judicial
process.” In practice, the Supreme Court will usually defer to its previous decisions even if
the soundness of the decision is in doubt. A benefit of this rigidity is that a court need not
continuously re evaluate the legal underpinnings of past decisions and accepted doctrines.
Moreover, proponents argue that the predictability afforded by the doctrine helps clarify
constitutional rights for the public. Other commentators point out that courts and society only
realize these benefits when decisions are published and made available. Thus, some scholars
assert that stare decisis are harder to justify in cases involving secret opinions.

The doctrine operates both horizontally and vertically. Horizontal stare decisis refers to a
court adhering to its own precedent. A court engages in vertical stare decisis when it applies
precedent from a higher court. Consequently, stare decisis discourages litigating established
precedents, and thus, reduces spending.

The Principle of Stare Decisis

The policy of the courts, and the principle upon which rests the authority of judicial decisions
as precedents in subsequent Litigations, is embodied in the maxim, Stare decisis et non quieta
mnovere-to abide by the precedents and not to disturb settled points. Its meaning is that when
a point of law has been once solemnly and necessarily settled by the decision of a competent
court, it will no longer be considered open to examination, or to a new ruling, by the same
tribunal or those which are bound to follow its adjudications.

Doctrine of Ratio Decidendi

Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision".
The ratio decidendi is "the point in a case which determines the judgment" or "the principle
which the case establishes". In other words, ratio decidendi is a legal rule derived from, and
consistent with, those parts of legal reasoning within a judgment on which the outcome of the
case depends. It is a legal phrase which refers to the legal, moral, political, and social
principles used by a court to compose the rationale of a particular judgment. Unlike obiter
dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later
jurisdiction—through the doctrine of stare decisis. Certain courts are able to overrule
decisions of a court of coordinate jurisdiction—however, out of interests of judicial comity,
they generally try to follow coordinate rationes. The process of determining the ratio
decidendi is a correctly thought analysis of what the court actually decided—essentially,
based on the legal points about which the parties in the case actually fought. All other
statements about the law in the text of a court opinion—all pronouncements that do not form
a part of the court's rulings on the issues actually decided in that particular case —are obiter
dicta, and are not rules for which that particular case stands.

Doctrine of obitar dicta

The Latin term obiter dicta means “things said by the way,” and is generally used in law to
refer to an opinion or non-necessary remark made by a judge. In a legal ruling, made by a
higher court, the actual decision becomes binding precedent. Remarks about such things as
how the court came to its decision are not binding, and it is to these that the term refers. To
explore this concept, consider the following obiter dicta definition.