LITERATURE REVIEW

2.3. LAW AND SOCIETY

SUBMITTED BY:

SHRUSHTI TAORI

UID:UGJ21-49

B.A.LL.B.(Adjudication and Justicing)

Semester-II

Academic Session:2021-22

SUBMITTED TO:

DR. RENGASWAMY STALIN

(ASSISTANT PROFESSOR OF SOCIOLOGY)

MAHARASHTRA NATIONAL LAW UNIVERSITY, NAGPUR

 Judicial Law Making - Law Making by Precedents
“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 pre-empt the common law
precedent cases. Judges deciding cases are bound by the new law, rather than the precedent
cases.””
“Article 141 of the Constitution of India stipulates that the law declared by
the Supreme Court shall be binding on all Courts within the territory of India.”This was
imbibed into the constitution of India from Article 12 of The Government of India Act,
1935.It is based on the Doctrine of Stare Decisis based on the Latin Maxim stare decisis et
non quieta movere, which says "to stand by the decisions and not to disturb settled points”.
The Doctrine of Stare Decisis is the base of the Common Law System and hence the system
of precedents is inevitable. There are four different types of precedents based on he role it
plays -

1. Declaratory or Original Precedents -

“In declaratory precedents, the application of a rule in an earlier legal case is used. A
declaratory precedent involves declaring an existing law and putting it into practice
and it doesn’t help in creating new law. In Original precedents, it arises when the court
has never taken a decision in a case and it has to use its own discretion in order to
come to a conclusion and it results in the creation of new laws. An original precedent
is one where a new law is created and applied in a legal matter.
.”
2. Persuasive Precedents -

“Persuasive Precedent includes decisions taken by an inferior court that a superior

court or other court is not obliged to follow. This precedent is commonly seen in High
Courts, where the judgments of one High Court can be considered as persuasive
 precedent in another. It is not directly considered as a source of law but is seen as a
form of historical precedents. In India, the decisions of one high court can act as
effective precedents in other high courts.”

3. Absolutely Authoritative Precedents -

“It is one of which, where the judge is legally bound to follow the judicial decision of
the precedent in a case of law irrespective of whether he finds it wrong. This is
generally seen in cases where the bench is smaller than the bench decided upon the
precedent that the judges depend on. This is also possible in cases of hierarchy, where
certain courts have to rely on decisions made by superior courts.”

4. Conditionally Authoritative Precedents -

“It is one where generally the precedent is considered absolutely authoritative but can
be disregarded in cases where parties appear before the Supreme Court. The decision
can also be overruled. The court can overlook the decision if it is a wrong decision, or
goes against the law and reason.”

PRECEDENTS AS SOURCE OF LAW -

The importance of precedent or past decisions taken by judges is recognized as a
source of law since ancient times. The main function of the judiciary is the
adjudication of disputes. Initially, while adjudicating, the courts are guided by customs
and their own sense of justice. Subsequently, legislation becomes the main source of
law and the Rule of law is what judges may derive their decisions from. Precedent
plays an important role in almost every legal system like -

● Respecting the Experience in the system -

It shows respect to senior’s opinions and hence, to their overall lifelong experiences
and learnings. By this way, this eventually leads to respecting the structures and
functions of the entire system. opinion. Eminent jurists like Coke and Blackstone have
supported the doctrine on this ground. They say that there are always some reasons
behind these opinions, we may or may not understand them.
● Respecting The Customs -
Precedents are based on customs, and therefore, they should be followed. Courts
follow them because these judicial decisions are the principal and most authoritative
evidence that can be given of the existence of such a custom as shall form a part of the
common law.

● Saves Labour and Time of The Court -

As a matter of great convenience, it is necessary that a question once decided should
be settled and should not be subject to re-argument in every case in which it arises. It
will save the labour and time of the judges and the lawyers.

● Brings Certainty and Predictability in the System -

Precedents bring certainty in the law. If the courts do not follow precedents and the
judges start deciding and determining issues every time afresh without having regard
to the previous decisions on the point, the law would become the most uncertain.

● Brings Flexibility -
Precedents bring flexibility to law. Judges in giving their decisions are influenced by
social, economic and many other values of their age. They mould and shape the law
according to the changed conditions and thus bring flexibility to law.

● ‘Judges Made Law’ -

Precedents are Judge made law. Therefore, they are more practical. They are based on
cases. It is not like statute law which is based on a prior theory. The law develops
through precedents according to actual cases.

● Gives Directions to The Court -

Precedents guide judges and consequently, they are prevented from committing errors
which they would have committed in the absence of precedents. Following
precedents, judges are prevented from any prejudice and partially because precedents
are binding on them. By deciding cases on established principles, the confidence of
the people in the judiciary is strengthened.
CONCLUSION -
“Precedents play a very important role in filling up the lacunas in law
and the various statues. These also help in the upholding of customs that influence the region
thereby making decisions morally acceptable for the people. This thereby increases their faith
in the judiciary which helps in legal development. These moreover being a sort of respect for
the earlier views of various renowned jurists, helps in upholding the principle of stare decisis.
It is a matter of great convenience that a question once decided should be settled and should
not be subject to re-argument in every case in which it arises. It will save the labour of the
judges and the lawyers. This way it saves lots of time for the judiciary which is a real
challenge in the present-day legal system with so many cases still pending for many years
now. Precedents bring certainty in law. If the courts do not follow precedents and the judges
start deciding and determining issues every time afresh without having regard to the previous
decisions on the point, the law would become the most uncertain. Precedents bring flexibility
to law. Judges in giving their decisions are influenced by social, economic and many other
values of their age. They mould and shape the law according to the changed conditions and
thus bring flexibility to law.”