Judicial Precedent

By-
Md. Sarwar Rahman
What is a Precedent
• "precedent" means "a previous lawsuit or case which may
be used as an example of a rule for subsequent cases or
which may establish or justify a similar act or
circumstance".
 As Defined in Black’s Law Dictionary, “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 (Black’s Law Dictionary P 1059 5th
edition 1979)
 In the court system, this usually means giving directions or
powers to past decisions for future cases.
Definition by Jurists:

 Salmond says “it basically only understands

reported case law that can be cited and
followed by the courts.”
 According to Austin, the precedents are
"judicial law"
Classification of Precedent:

Precedent may be divided into two classes-

1) Authoritative Precedent
a) Absolute Authoritative Precedent
b) Conditional Authoritative Precedent
2) Persuasive Precedent
1) Authoritative Precedent:

• Authoritative Precedent is one which judges must

follow whether they approve it or not.
• It comes from the superior court followed by its
subordinate court
• Authoritative precedent is two types
a) Absolute Authoritative Precedent
b) Conditional Authoritative Precedent
a) Absolute Authoritative Precedent
• an absolute authority 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.

b) Conditional Authoritative Precedent

• Ordinarily they are binding but under special

circumstances they can be disregarded.
2) Persuasive Precedent:

• persuasive precedent is one which the

Judges are under no obligation to follow
but which they will take into
consideration
Circumstance Which Destroy or weaken The Binding
Force of the Precedent:-

1) Abrogated Decision:
• Abrogated means cancel
• A decision ceases to be binding if a statute or statutory rule
inconsistent with it, is subsequently enacted or if it is reversed or
overruled by a higher court.
There are two kinds of occurs in the Abrogated Decisions
i) Reversal occurs: when the same decision is taken on appeal and
reversed by the appellate court
ii) Overruling occurs: the High Court declares in another case that
precedent case was wrongly decided and so is not be followed.
2) Affirmation or Reversal in different ground:
• A decision is affirmed or reversed on appeal on a
different point

3) Ignorance of Statute:
• it was rendered in ignorance of a statute or a rule having
the force of a statute. For example: delegated
legislation

4) Inconsistency with earlier decision of higher

court
• if the court that decided it overlooked an inconsistent
decision of a higher court
5) Inconsistency Between earlier decision of the
same Rank:
• A court is not bound by its own previous decisions that
are in conflict with one another

6) Precedent Sub-silentio or not fully argued:

• the decision was arrived at subsilentio.

7) Decision of equally Divided Courts:

• If a Division Bench is equally divided, the case is
refered to a third judge for decision and the case is
finally decided according to the majority view of two
judge
Ratio Decidendi
• Another name for: The reasons for the decision
made
• a meticulous examination of the court's actual
decision, primarily focusing on the legal issues
that were contested by the parties involved in the
case.
• According to Rupert Cross, "Ratio Decidendi is a
rule of law expressly or impliedly treated by the
judge's as a necessary step in reaching his
conclusion"
Obiter Dictum:

• It is an opinion by a judge which doesnot form a

necessary part of the courts’s decision.
• something said by the judges by the way.
• According to Goodhhart: "a conclusion based on a
fact the existence of which has not been
determined by the court".
• It doesnot have binding force
Res Judicata

• This Latin term means, “a thing adjudged”

• a thing or matter that has been finally
juridical decided on its merits and cannot
be litigated again between the same
parties.
Stare
Decisis:

• This latin term means, “to stand by that

which is decided
• The process whereby the judges follow
previously decided cases where the facts
have sufficient similarity
Conclusion

• Judicial precedent are indeed a good source of law

• Saves the time of the court and hence helps in ensuring
effective justice delivary system.
• It cann’t be denied precedents are one of the most
importance sources of law. But with time it will become
more and more difficult to keep a track all such judicial
precedent. So same mechanism will have to be developed
to make good provisions for recording of precedent.
Thank You