PRECEDENT

INTRODUCTION:

Judicial precedent is an important source of law, but it is neither as modern as legislation nor
is it as old as custom. It is an important feature of the English legal system as well as of other
common law countries which follow the English legal system. In modern societies, rights are
generally conferred on the citizens by legislation and the main function of the judiciary is to
adjudicate upon these rights. The judges decide those matters on the basis of the legislations and
prevailing custom but while doing so, they also play a creative role by interpreting the law.

By this exercise, they lay down new principles and rules which are generally binding on
lower courts within a legal system. The judgment rendered by Supreme Court is binding on all the
subordinate courts, High Courts and the tribunals within the territory of the country. (Article 189
of constitution of Pakistan).In case of a judgment rendered by the High Court, it is binding in
nature to the subordinate courts and the tribunals within its jurisdiction. Article 201.

HISTORY OF PRECEDENT:

In ancient society, there have been less number of disputes occurred and there have few
occasions to go to courts. So at that time, there was less possibility of development of precedent
due to lack of adequate sources to maintain the record. In the absence of a proper organized judicial
system, no doctrine of precedent developed in India as it has developed in England. In British rule,
the theory of precedent started developing.

Pakistani law is largely based on English common law it is because; Pakistan was a colony
of the British for a long period of time. Precedents became a source of law only during the British
control in India.
 The Government of India Act, 1935 established a federal court and Privy Council whose
decisions were binding on all the other courts in the country and this was the beginning of using
precedents in deciding judgments, soon with the passing of time precedents acquired a lot of
importance

MEANING:

1. LITERAL MEANING:
• Any act, decision, or case that serves as a guide or justification for subsequent situations,
example, model, pattern, standard.
• An act or instance that may be used as an example in dealing with subsequent similar
instances.

2. LEGAL MEANING:
• In legal words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow.

DEFINITIONS OF PRECEDENT:

According to Keeton,

“A judicial precedent is judicial to which authority has in some measure been attached.”

According to Salmond;

"Precedents are judicial decisions followed in subsequent cases".

According to Gray;

"Precedent covers everything said or done, which furnishes a rule for subsequent practice."

According to Bentham;

"Precedents are Judge made Law."

PRINCIPLE OF STARE DECISIS:

Stare decisis means to abide by, or adhered to decided cases. It is a policy of courts to stand
by precedent and not to disturb settled point.

Doctrine that when court has once laid down a principle of law as applicable to a certain state
of fact, it will adhere to the principle and apply it to all future cases, where the facts are
substaintially the same regardless of whether the parties and property are the same. Under doctrine
a deliberate or solemn decision of court made after argument on question of law fairly arising in
the case and necessary to its determination is an authority or binding precedent in the same court
or in other courts of equal or lower ranks in subsequent where the very point is again in
controversy. The doctrine is limited to actual determination in respect to litigated and necessarily
decided questions and is not applicable to obiter dicta.

There is a maxim “ Stare Decisis et non-quieta movera” which means to adhere to

precedents and not to setteled things which are established.

The binding authority of judicial precedent is bases on the principle of stare decisis. It means
to follow those judgements which are decided by the courts. The Brritish legal systems in the
world with respect to other legal syetems gives binding authority to the precedent. The doctrine of
Stare Decisis( to stand by past decisions ) means that where a rule has become settled law it is to
be followed. This connotes that like cases should be decided alike.
PARTS OF A DECISION

Ratio decidendi

Ratio decidendi derives from Latin term and the literal meaning of the term is “reason for
the decision”. It includes the rule of law or principle upon which a judicial decision is based. The
principle is applicable to all upcoming judgments which have similar facts. It is binding on all the
subordinate courts of the country. The reason or ratio of taking a decision are conclude from the
facts of the case and later applied in all other cases, it forms the basis for accepting a particular
decision as precedent.

Obiter dictum

Obiter dictum also derives from Latin term which means the things said otherwise. It is an
additional opinion, observation or remark on the other issue made by a judge which does not form
a necessary part of the court’s decision. It refers to certain opinions, statements, observations,
ideas, examples, etc which are made by the judges while making the decisions. These opinions are
not binding on all the other courts while they are only persuasive in nature.

TYPES OF JUDICIAL PRECEDENT

1. DECLARATORY OR ORIGINAL PRECEDENT –

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 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 PRECEDENT

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

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

It is one where generally the precedent is considered absolutely authoritative but can be
disregarded in cases where parties appearing 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.

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. Judicial precedents are an important source of law, especially when it
comes to the common law system. It needs to be noted that the common law system evolved and
evolves due to judicial precedents.

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.”

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.”

This principle isn’t just the evidence of laws but also the source of law. It is a way to persuade
the judges. Cases decided by the court with no thought on rule of law, cannot be treated as
precedent.

MERITS OF THE DOCTRINE OF PRECEDENTS:

1. It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone
have supported the doctrine on this ground. The say that there are always some reasons
behind these opinions, we may or may not understand them.

2. 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.
3. 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 labor of the judges and the lawyers.

4. 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.

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

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

7. Precedents bring scientific development to law. In a case, Baron Parke observed ‘It
appears to me to be great importance to keep the principle of decision steadily in view,
not merely for the determination of the particular case, but for the interest of law as a
science.

8. 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 on the
judiciary is strengthened.
DEMERITS OF THE DOCTRINE OF PRECEDENTS:

1. There is always a possibility of overlooking authorities. The vastly increasing number of

cases has an overwhelming effect on the judge and the lawyer. It is very difficult to trace
out all the relevant authorities on the very point.

2. Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court
on the horns of a dilemma. The courts faced with what an English judge called “complete
fog of authorities.”

3. A great demerit of the doctrine of precedent is that the development of the law depends on
the incidents of litigation. Sometimes, the most important points may remain unadjudicated
because nobody brought an action upon them.

4. A very grave demerit or rather an anomaly of the doctrine of precedent is that sometimes
it is the extremely erroneous decision is established as law due to not being brought before
a superior court.

CIRCUMSTANCES WHICH INCREASE THE AUTHORITY OF A

PRECEDENT:

1. The number of judges constituting the bench and their eminence is a very important factor
in increasing the authority of precedent.

2. A unanimous decision carries more weight.

 3. Affirmation, approval or following by other courts, especially by a higher tribunal, adds
to the strength of a precedent.

4. If an Act is passed embodying the law in a precedent, the gains an added authority.

CONCLUSION

From the brief discussion above about the legal value of precedents we can clearly infer that
these 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 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 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.