Judicial Precedent

Badsha Mia
Assistant Professor and Chairman
Department of Law
Noakhali Science and Technology University (NSTU)
Email:badsha_law@yahoo.com
 Judicial Precedent
Precedents literally means previous judicial decision. The decisions of
the higher courts are binding on the lower courts. The binding force of
decision is called precedent. The precedents play an important role in
the development of law.
PRECEDENT GENERALLY:
‘An earlier event or action that is regarded as an example or guide to
be considered in subsequent similar circumstances.’
Sometimes act may be insufficient for the case or there may be an
vacuum or any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions becomes
precedents which are followed later on by the same & Lower courts.
This method of decision is also called as Judge made law. The English
and American law is mostly based upon the precedents. In Bangladesh
Art.111 of Bangladesh Constitution says that the decision of the higher
courts shall be binding upon the lower courts.
 DEFINATION OF PRECEDENT
• Precedents are a decision of a court which is also called judicial decision.
• According to the Oxford University, “Precedents means the previous decision
given by a court according to rules.”
• According to Prof. Keeton. A judicial precedent is a decision to which
authority has in some measure been attached.
• Various writers have given the definition of precedents is conduct of court
adopted by the lower court in similar facts and in similar circumstances in a
case.
• Particularly the precedents means the Judge made law. When the court gives
its own ideas for creating new rules.
• England, America and China also follow the previous decisions as the source
of law. but the continent countries like Germany, Japan, Italy, France does not
accept the previous decisions as the source of law. The method of taking
precedents as source of law is called inductive method, while the method of
continental countries not following previous decisions of the court is called
deductive method.
• PRECEDENT IN LEGAL SENSE:-
 Precedent is a rule of law established for the
first time by a court for a particular type of
case and thereafter referred to in deciding
similar cases.
 RECOGNITION OF PRECEDENT IN BANGLADESH:-

 The Constitution of Bangladesh:-

Article 111 (Binding effect of Supreme Court judgments)
“The law declared by the Appellate Division shall
be binding on the High Court Division and the law
declared by either division of the Supreme Court
shall be binding on all courts subordinate to it”
Case Law:-
Doctrine of Precedent has been further reiterated in this
recent case-
Amzad Hossain v. State, (2010) 62 DLR (AD)288
 Nature of Judicial Precedent
• A judicial precedent is purely constructive and in
no degree abrogative. This means that a judicial
decision can make a law but cannot alter it.
• Where there is a settled rule of law, it is the duty
of the judges to follow the same. They cannot
substitute their opinions for the established rule
of law. They can only fill in gaps in the legal
system and remove imperfections in the existing
Legal System.
 Kinds of Judicial Precedent
• Precedent or case law is a judicial decision, but all judicial
decision is not precedent. A judicial decision, which contains
in itself a principle of law, is called precedent.
Primarily precedent may be …
a) Original Precedent
b) Declaratory Precedent.
a) Original Precedent:
An original precedent is one, which contains a new principles
of law i.e., which creates a new rule for the
first time.
b) Declaratory Precedent:
A declaratory precedent is one, which merely the application
of an already existing rule of law.
 Kinds of Judicial Precedent….
• Precedent may be further divided into two classes---
»a) Authoritative
»b) Persuasive
a) Authoritative:
An authoritative precedent is one which is binding upon judges and which they
must follow whether they approve of it or not.it is binding upon them and it
excludes their judicial discretion.
Again authoritative precedent may be divided into two types:
i) Absolute: Absolute precedent is one which is absolutely binding upon judges
and which must be followed by them however unreasonable or erroneous it may
be considered to be.
ii)Conditional: A conditional authoritative precedent is one which possesses
merely conditional authority and it may be disregarded by the judges under
circumstances, that is , the court posses a certain limit power of disregarding it.
b) Persuasive: A persuasive precedent is one which the judges are no obligation
to follow but which they will take into consideration and which they will attach
great weight, as it seems to them to deserve.
 MERITS OF PRECEDENT:
Precedents are a very important source of Law. They play an important
role in the development of law, so they have certain advantages as: 
• 1. Precedent brings flexibility in the law.
• 2. Precedent saves a judges from such decisions, which may be arbitrary.
• 3. Precedents show true respect to the ancestors means by adopting the
previous decision of the higher court to decide the present case, it is a
kind of respect to elders.
• 4. Precedents are suitable to the present situation means after some
times the circumstances of the society can change with the change of
time so the precedents they are more suitable and fit for the present time
and circumstances.
• 5. Precedents are based on customs means the law in the form of act
which based upon customs. Court  interprets the customs while
interpreting any act.
 MERITS OF PRECEDENT.…
• 6. Precedents are convenient and easy to follow because
they are available in the form of written reports.
• 7. Precedents bring certainty in law, once decision is
given in a case there would be no need to repeat all
precedents in any other case if it resembles to the former
case.
• 8. Precedents are the best guide for the Judges: They
play an important role in the judiciary because the
 precedents are the guide lines for the courts
• 9. Precedent prevented from any prejudice and partiality.
• 10. Precedent protects the litigants from inequality.
 DEMERITS OF THE PROCEDENT
Although the demerits are very few but these are as under :-
• i) The decisions are given by the human beings while
performing the duties as judge, his decision may not be
suitable to all persons who have different mind and
thinking. This will be a bad effect on Judiciary.
• ii) Sometimes the decisions of the higher courts
contradictory to each other. It becomes harder to another
judge to apply the same verdicts as a precedents of higher
court
• iii) Sometimes the higher courts give a wrong decision
and over pass the important factors of the case due to one
reason or the others.
• Iv. Violate the Rule of Natural Justice
 ARE PRECEDENTS BINDING?
• The precedents is an important source of law. It is
available in the form of judicial decisions. Now the
question arises that in what sense and when the
precedents are binding o follow. For the answer of
this query different views have been given by the
various writers and jurists. No doubts the
precedents is not binding like warrant issued by a
court of law.  It means precedent can be over ruled
if they are not right or appropriable to the case to
be decided but warrant has to be followed by all to
whom it is applicable.
 Continued…

• It is not necessary that in the case which is to be decided the

circumstances and the facts must be the same as in resembling case.
 If the facts and the circumstances of the cases are materially similar
then the precedents or previous judicial decision is applied in the
later cases and are applied only in the form of ‘ratio decidendi’ of
previous cases. There are two parts of it :-
• i) Ratio-decidendi:- means reasons which leads the court to reach
the decision. It is the main part of the case in judgment and the ratio
decidendi of the decision is binding in the form of precedent.
• ii) Obits decidendi/ Obiter Dictum:-It is also a part of the decision
which is irrelevant to the facts and circumstances of the case. The
judge takes into consideration the social conditions, morality,
principal of natural justice that is why the Judges play an important
role in the development of legal system.
• iii)Stare Decisis: This means ‘stand by what has been decided and
do not unsettle the established’
 Where to be found:-

• Judicial precedents can only be formed if the legal

reasons for previous decisions are stated. These are stated
in a JUDGEMENT.
• A judgement is a speech made by the judge or judges that
have heard the case which includes:
Summary of the case facts
Issues to be determined
Review of arguments put forward
The decision made
Reasons for this decision
 RATIO DECIDENDI ( Precedent):-

• Another name for the reasons for the decision made.

 It can be hard to identify the ratio decidendi and
the obiter dicta in the judgement because they are not
specific to each part. It is just a general speech.
 Sir Rupert Cross defined the ratio decidendi as
‘Any rule expressly or impliedly treated by the judge
as a necessary step in reaching his conclusion’.
 Michael Zander defined the ratio decidendi as ‘a
proposition of law which decides the case, in the light
or in the context of the material facts’.
HOW IS THE RATIO DECIDENDI IMPORTANT IN
JUDICIAL PRECEDENT?
This is what forms the precedent.
This is the part that judges have to follow in
the subsequent cases.
This is the part of the judgement which acts
as a source of law.
• OBITER DICTA:-
 Everything else said in the judgment that is not the reason for the
decision is classed as the obiter dicta.
 So this includes:
- summary of the case,
- review of arguments put forward, and
- the final decision made.
The obiter dicta does not have to be followed in a precedent, however
sometimes a judge will look at it to help them form their decision.
These dicta have the force of persuasive value only.
The judges are not bound to follow them.
 Circumstances which destroy or weaken the binding force of precedent.

1. Abrogated Decision: A precedent ceases to be binding

if a statute or statutory rule inconsistent with it is
subsequently enacted, or if it is reversed or overruled by
higher court.
Reversal occurs when the same decision is taken the
appellate court reverses an appeal
Overruling occurs when the higher court declares in
another case that the precedent case was wrongly
decided and so it is not to be followed.
2. Affirmation or reversal on different ground:
It sometimes happens that a decision is affirmed or
reversed on appeal on different point.
 Continued..

• 3. Ignorance of Statute: A precedent is not binding it

is was rendered in ignorance of statute.
• 4. Inconsistency between Earlier decisions of the
same rank:
A court is not bound by its own previous decisions that
are in conflict with one another.
5. Precedent sub-silentio or fully argued:
decision passes sub silentio when the particular point
of law involved in the decision is not perceived by the
court or present to its mind.
6. Decision of equally divided courts:
7. Erroneous Decisions:
 Circumstances increasing the authority of a Precedent:-

• Unanimity of the court;

• Affirmation or approval by other Courts,
particularly by the Higher Courts;
• Eminence of the Judge;
• Absence of criticism by the professionals;
• Learned argument; and
• The fact that an Act has since been passed on
the same subject-matter without reversing the
decision.
 Judges are the makers of law not discovers of law. Do you agree with this view?

There are two contrary theories regarding the question as to whether Judges declare the existing
law or make the law. There are two which are as under :-
1. Theory that judges declare the law or Declaratory Theory.
2. Theory that judges make the law or legislative theory. (Law making theory)
1. DECLARATORY THEORY :- The first theory is the declaratory theory as described by Hall
and Blackstone and they supported by Dr. carten also.
According to the declaratory theory no new law is created by the Judge, Courts of Justice do not
make law, their province is to ascertain and declare what the law is.  Judges only discover the
existing laws.
•     Hale enunciates declaratory theory of precedents and contends that whilst Parliament alone
legislates in the strict sense the  Judges only expound the law and their decisions are the best
evidence of  what law is. The result of his theory is that the effect of the decision is retrospective
for it does not only declare what law is but what it always has been.  Nevertheless as Maine has
pointed out  once the Judgement has been declared and reported we start with a new train of
thought and frequently admit that the law has been modified.
•          According to Lord Esher, There is in fact no such hing as Judge-made law, for h judge do
not make the law, though they frequently have to apply the existing law to the circumstances as to
which it has not previously been authoritatively laid down that such law is applicable.”
•  Declaratory theory is based on the fiction that the English law is an existing something which is
only declared by the Judges.  This theory is known as the theory of judicial precedent.
•                    
 Continued…
2.LAW MAKING THEORY:
• The second theory is that the Judges do not declare law but make the law in the sense of
manufacturing of creating entirely new law. Bentham and Austin, have opposed the traditional
view as a childish fiction and have declared that Judges are in fact the makers and fulfill a
function very similar to that of the legislature.
• Lord Becon:  The new point decided by the Judges is a direct contribution towards law-making.
 Professor Dicey supported this view and gives example of English common law which has been
made by the judges which has been made by the judges through their judicial pronouncements.
• Prof. Gray : supports this law making theory and says that judges alone are the makers of law.
 He discredits  the declaratory theory. 
•    Judges are without any query law-makers but their power of law making is not un-restricted.
 It is strictly limited for instance they cannot over rule a statute where the statute clearly lays
down the law.  The legislative powers are restricted to the facts of case before them.
• According to Salmond :  Who is strong support of  this view says that he is evidently troubled in
mind as to the true position of precedent. He further says that both in law and in equity
declaratory theory altogether totally rejected.
 Such cases which are not covered by existing laws the judicial decisions created new notions
and formulae new principles which were never contemplated earlier. Supreme court over-ruled
the Golak Nath decision in Keshwanand Bhari’s case and laid down a new basic structure theory
and in Golak nath case the new principle of prospective over-ruling was evolved by Judges.
 Continued…

RECONCILAION OF THE TWO THEORIES

• The above two views about making of law by judges are not
exclusive of each other but they are rather complementary.  It
will be seen that neither the purely declaratory theory nor the
purely legislative theory represents the whole truth. Judges
develop the law but cannot be said to legislate. The common law
is not made but has grown and the more it changes the more it
remains the same thing.
• The answer to the question whether the Judges make or discover
law much depends upon the nature of the particular legal
system.  In common law system it may be stated that the Judges
make law while in other countries where is law is codified the
judges only supplement the law. It is true that custom and
statutes do not render the judges some super fulvous knowledge.