Precedent as a Source of Law

Table of Contents
 Precedent as a Source of Law
 Precedent:
 Introduction:
 Precedent as a source of law: 
 Kinds of Precedent
 Conditions destroying or weakening the binding force of
Precedent:
 Ratio Decidendi:
 Obiter Dicta: 
Precedent as a Source of Law
Precedent:
Introduction:
Judicial Precedent means the process whereby judges follow the
decided cases. The doctrine of judicial precedent involves use of the
doctrine of stare decisis, to stand by the decided. In practice, this means
that lower courts are bound to apply the legal values set down by higher
courts in earlier cases. This provides uniformity of law. This is known as
the Judicial Precedent.
Precedent as a source of law:
Judicial Precedents are an important source of law. They have enjoyed
high authority at all times and in all countries.

According to Salmond: “The great weightage of the unwritten law is

almost entirely the product of outside cases, collected in an enormous
series of reports extending backward, if it’s not in theory, the common
law of England has been created by the decisions of English judges.”
According to Stobbe: “Training is in itself not a source of law, a court
can depart from its official practice and no court is bound to practice
another. Departure from the practice hereby is observed and not only
permitted but required if there are better reasons for the questions of
law.”
Blackstone writes: “For it is an established rule to respect the former
precedents, where the same points come again in litigation, as to keep
the rule of justice even and different and not liable to with every judge’s
opinion, as also because the law, in that case, being perfectly declared,
what before was uncertain has now become the permanent rule,
subsequent judge to alter according to private opinions.

Kinds of Precedent
1. Authoritative and Persuasive Precedent– According to
Salmond, an authoritative precedent is one which judges must
follow whether they agree to it or not. A persuasive precedent is
one which the judges are under no duty to follow but to which they
will take into consideration and to which they will attach great
weight as it seems to them to deserve.
2. Absolute and Conditional Precedent– Authoritative precedents
are of two kinds, absolute and conditional. In the case of absolute
precedents, they have to be surveyed by the judges even if they
do not accept it. They are entitled to implied obedience. A
conditional precedent can be accepted by overruling. In the case
of overruling, the precedent overruled is authoritatively pronounced
to be wrong so that it cannot be followed by the courts in the
future.
3. Declaratory and Original Precedents– A declaratory precedent
is one which is merely the request of an already existing rule of
law. An original precedent is one that makes and establishes the
new rule. These are called original precedents.
Conditions destroying or weakening the binding force of
Precedent:
There are circumstances that destroy or weaken the binding force of a
precedent. Those are exceptions to the rule of the binding force of
precedent

1. Abrogated Decision– A decision terminates to be binding if a

statute is varying with it is subsequently enacted, or if it is
overruled by a higher court. A reversal occurs when the same
 decision is taken on appeal and is reversed by the Supreme court.
Overruling occurs when the higher court declared in another case
that the precedent case was not correctly decided and so is not to
be followed.
2. Ignorance of Statute– A precedent is not binding if it was to be in
ignorance of a statute or a rule having the force of a statute, i.e.,
delegated legislation. Even a lower court may refuse to follow a
precedent on this ground.
3. Inconsistency with Earlier Decisions of Higher Court –
Precedent loses its binding force if the court that decided it
overlooked a varying decision of the higher court. Thus, if the High
Court of Delhi decides a case in ignorance of a decision of the
High Court of Delhi is not binding on any lower court.
4. Decisions of equally divided courts– Where an Appellate Court
is equally divided, the practice is to dismiss the appeal. The rule
adopted in the House of Lords is that the decision appealed
becomes the decision of the House of Lords.
5. Erroneous Decisions– Decisions may also be erred by being
founded on wrong principles by conflicting with fundamental
principles of the common law. Logic suggests that the court should
be free to disregard those decisions. In Scruttons Ltd v. Midland
Silicones Ltd, the House of Lords by a majority of four to one
disregarded their own previous decision.

READ  Case Comment: N.B. Jeejeebhoy v. Assistant Collector

Thane (AIR 1965 SC 1906) with Application of Principle of Natural
Justice

Theories Of Precedents

Declaratory theory

This theory provides that,

Judges only discover law.

They discover and declare.

Coke C.J.: judicial decisions are not a source of law but the best proof of
law is.
Wiilis v. Baddeley: there is no such thing as judge-made law.
Rajeshwar Prasad v. State of West Bengal,  AIR 1965 SC 1887, the
same theory was upheld by the Supreme Court of India.
This theory was criticised on a number of grounds

Bentham and Austin : legislative power is not with Courts and they can
not even claim it.
Salmond : both at law and in equity, however the declaratory theory
must be totally rejected .
Precedents make law as well as declare it.

Judges have altered the law.

Judges make Law

Lord Bacon: the points which the judges decide in cases of first

impression is a “distinct contribution to the existing law”.
Prof. Gray: Judges alone are the makers of Law.
Pollock: Courts themselves, in the course of the reasons given for those
decisions constantly and freely use language admitting that they do.
This theory was criticised on a number of grounds

Judges cannot overrule a statute.

Where a statute clearly laid down the law, the judge has to enforce it.

The judge is confined to the facts of the case while enunciating legal
principles.  Within those limits alone it can be said that judges make law.

Ratio Decidendi:
According to Salmond: “A precedent is a judicial decision which
contains in itself a rule. The underlying principle which thus forms its firm
element is often termed the ratio decidendi. The concrete decision is
binding to the parties to it but it is the feature ratio decidendi which alone
has the force of law as regards and is binding in nature.”
Rupert Cross says that a ratio decidendi is a rule of law expressly or
impliedly treated by the judge as a necessary step in reaching his
decision.
According to M.R. Cohen: “You cannot take decisions from past to
future without making assumptions. From the statement that the court
has ruled so and so in certain cases, nothing follows except as the new
cases are assumed to be old cases.

Obiter Dicta:
All that is said by the court by the way of the statements of law which go
beyond the requirements of the particular case and which law lays down
a rule that is irrelevant or unnecessary for the purpose in hand are called
obiter dicta. These dicta have the force of persuasive precedents only.
Obiter dicta help in the growth of law. These sometimes help the cause
of the reform of law and development.

Dr. Goodhart defines obiter dicta as, “an end based on a fact and the
existence of which has not been single-minded by the court.”

Advantages

 Judicial precedent helps to prepare new statutory laws and will

adjust according to the changing conditions of the society.
 Judicial precedent helps the court system to save time on future
cases and increases convenience as a question once decided is
settled.
 It creates a system where everyone dealing with a similar case will
treat in a similar manner, which leads to equality and fairness of
justice.
 Binding judicial precedent establishes a regulation that helps to
maintain stability.
 It provides the judicial system a certain measures of flexibility.
 It provides cases which makes them more practical.
 It also acts as guidelines to decide upcoming cases.
Disadvantages

 It is considered to be rigid to alter a precedent once followed.

 A judicial precedent imposes a foundation on lower courts to follow
it, which sometimes forces them to take lesser or harsher
decisions than actually required.
 There are many precedents regarding many cases which make it
difficult to implement the right precedent in the right case.
 Some situations are not recognized under precedent as they are
not considered into account.
 When a case is distinguished it is not mandatory to follow a
precedent.
 It forces the system to look backwards instead of looking toward
the future.
 This process can introduce unnecessary restrictions into the law.
Conclusion

From the above, we can infer that precedents play a vital role in filling
the gap in law and various statutes. It also increases the faith in the
judiciary and makes laws more acceptable morally. The presence of
judicial precedent makes it easier for the courts to form decisions when
the case before them is a reflection of previously-decided law. This
system certifies that the consistency and certainty provided with the
justice system offers a fast, effective judicial process that works
effectively and fairly for everyone. When every case receives similar
outcomes are predictable. The rules and principles developed under this
system create more flexibility within the judicial system as well. It does
not always save the time and labour of judges but also secures
predictability, certainty, and uniformity in the application of law. This
system helps to interpret law and make changes according to the need
and requirements of society.

Precedent and Legislation

1. The legislation has its source in the process of law which is

basically enacted and enforced by the State while the precedent
has its origin in ancient and historic judicial pronouncements.
2. Legislation has an authoritative force on courts by the
assembly. However, precedents are made by the
courts themselves.

3. Legislation signifies formal declaration of law by the governing

body though precedents are acknowledgement and use of new
standards of law by courts in the administration of equity, justice
and good conscience.

4. Legislation is ordered before a case emerges. However, the

precedent appears simply after the case has developed and taken
for the choice of the court.

5. Legislation is basically of an exhaustive structure while the

extent of legal precedent is restricted to comparable cases as it
were.

6. Legislation is commonly and generally forthcoming while

precedent is retrospective in nature.

7. Legislation is announced or distributed before it is brought into

power, on the other hand, precedent comes into power on the
double, i.e. when the choice is articulated.

8. Legislation is finished with the goal of the lawmaking process yet

it isn’t so on account of the precedent. The precedent which
incorporates ratio decidendi and obiter dicta are expected to settle
a particular contest on the purpose of law once for all.

9. It isn’t hard for people, in general, to realise the law instituted by

lawmaking body yet the precedent dependent on the case law isn’t
effectively known to the general population. Now and again, the
attorneys who manage law are themselves oblivious about the
current case-law. Therefore it makes a precedent of an ambiguous
nature.

10.Legislation includes law-production by deductive strategy while

case-law is made by resorting to an inductive technique