Precedent: Sources of Law | Jurisprudence - CLAT PG PDF Download

Precedent as a Source of Law

Inductive and Deductive Methods

• Inductive Method: Judges rely on past decisions to establish general rules for current cases.
• Deductive Method: Cases are decided based on enacted legislation and statutes, rather than past decisions.

Authority of Previously Decided Cases

• Judges often rely on previous decisions for guidance, but the authority of these decisions varies across legal systems.
• In many countries, including India, legal knowledge is primarily derived from decisions of higher tribunals.
• These decisions are compiled and published in reports, serving as valuable legal literature and efficient references for similar future cases.
• Such decisions are known as judicial precedents or precedents.

Definition

• Precedent refers to a previous instance or case that serves as an example or rule for subsequent cases.
• Gray defines precedent as everything said or done that furnishes a rule for subsequent practice.
• Keeton describes judicial precedent as a judicial decision to which authority has been attached.
• Salmond interprets precedent as reported case law that may be cited and followed by courts.
• Bentham views precedents as "judge-made law."
• Austin considers precedents as "judiciary's law."
• In general, precedents guide future cases based on past decisions, and only those decisions that establish new rules or principles are considered judicial precedents.
• The application of these precedents varies across different legal systems and is governed by the "Doctrine of Precedent."
• For a precedent to be applicable, it must be reported, cited, and followed by courts.
• Additionally, certain precedents must be followed under specific circumstances.

Nature of Precedents

• Precedents should be purely constitutive, meaning that a judicial decision can create a law but cannot change an existing one.
• Judges are required to adhere to settled rules of law and cannot replace established legal principles with their opinions.
• The role of judges is limited to filling gaps in the legal system by introducing new laws where there are none.

Importance of Precedents

• Ancient Legal System: Even in ancient times, the significance of judicial decisions as a source of law was acknowledged. Sir Edward Coke mentioned instances like Moses being the first law reporter, and the Mahabharata emphasized following the path of virtuous men as a theory of precedent. Ancient legal systems in Babylonia and China also regarded judicial decisions as authoritative, later incorporated into code law.
• Modern Legal System: In contemporary legal systems, particularly Anglo-American law, which is judge-made (common law), precedents play a crucial role. Branches of law like torts were developed exclusively by judges. Constitutional Law in England, especially regarding citizens' freedoms, evolved through judicial decisions. Not only in municipal law but also in international law, precedents are significant. The decisions of the International Court of Justice serve as important sources of international law. Article 38(2)(d) of the Statute of the International Court of Justice acknowledges these precedents. Article 59 states that the court's decisions have persuasive value for future cases but are not binding.

Types of Precedents

Persuasive Precedents : Persuasive precedents, also known as persuasive authority, are legal precedents or writings that, while related to the current case, are not binding on the court. In common law legal systems like English law, persuasive precedents can guide judges in their decisions but are not obligatory.
Sources of persuasive precedents include:

• Lower Courts: A lower court's opinion may be considered persuasive if the judge believes the correct legal principle and reasoning were applied.
• Higher Courts in Other Circuits: A court may find persuasive authority in rulings from higher courts outside its jurisdiction. For instance, a district court in the United States First Circuit might consider a ruling from the Ninth Circuit Court of Appeals.
• Horizontal Courts: Courts may look to rulings from other courts of equivalent authority in the legal system. For example, an appellate court in one district might consider a ruling from an appeals court in another district.
• Statements Made in Obiter Dicta: Obiter dicta from higher court opinions, although not binding, can be persuasive to lower courts.
• A Dissenting Judgment: If a tribunal issues a dissenting judgment, the dissenting judge's obiter and rationale can be followed in subsequent cases, provided the holding of the court is not overturned.
• Treatises, Restatements, Law Review Articles: Court may consider writings by legal scholars in treatises, restatements of the law, and law review articles, with varying influence based on the author's reputation and the argument's relevance.
• Courts in Other Countries: Judgments from countries sharing the English common law tradition, such as Canada, Australia, New Zealand, and to some extent, the United States, may be cited by English courts.

Binding Precedents

• A binding precedent, also known as mandatory precedent or binding authority, is a legal precedent that must be followed by all lower courts within a common law legal system.
• In English law, binding precedents are typically established by the decisions of higher courts, such as the Supreme Court of the United Kingdom, which assumed the judicial functions of the House of Lords in 2009.
• Binding precedent operates on the principle of stare decisis, which means to stand by things decided. This principle ensures certainty and consistency in the application of the law.
• Binding precedents from past cases are applied to new situations by analogy, creating a framework for legal decision-making.
• For a precedent to be effective, three elements are necessary:
  • The hierarchy of courts must be accepted.
  • An efficient system of law reporting is essential.
  • A balance must be struck between the need for legal certainty from binding precedents and the avoidance of undue restriction on the development of the law.
• Binding Precedent in England: In England and Wales, as well as other common law jurisdictions, judges are bound by the doctrine of binding precedents. This is a distinctive feature of the English legal system. Unlike Scotland and many countries in mainland Europe, where judges consider case law but are not obliged to follow it, judges in common law jurisdictions must adhere to previous decisions.
• The position in the court hierarchy of the court that decided the precedent, relative to the court trying the current case, is crucial in determining whether a precedent is binding.
• Additionally, whether the facts of the current case fall within the scope of the legal principle established in previous decisions is also important.

Stare Decisis

• Stare decisis is a legal principle that obliges judges to respect precedents set by prior decisions. The term is derived from the Latin maxim "Stare decisis et non quieta movere," which means "to stand by decisions and not disturb the undisturbed."
• In a legal context, it signifies that courts should generally adhere to precedents and not overturn settled matters.
• This doctrine requires lower courts to follow the rules established by higher courts. Unlike most civil law jurisdictions, where binding precedence is not recognized, judges in civil law systems are expected to judge in a predictable manner.
• Judges' right to interpret law does not prevent the adoption of a limited number of binding case laws.

Authority of Precedents

• The authority of a decision as a precedent is determined by its Ratio Decidendi.
• Ratio Decidendi and Obiter Dictum Ratio Decidendi refers to the principle deduced from a case that applies not only to that case but also to similar cases with essential similarities. Obiter Dictum refers to parts of a judgment that do not establish general principles and are not binding.
• Only the Ratio Decidendi is binding, while Obiter Dictum does not have a binding effect. It is up to the judge to determine the Ratio Decidendi and apply it to the case they are deciding, allowing for flexibility in molding the law to changing conditions.

Merits of The Doctrine of Precedents

• 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.
• 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.
• 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.
• 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.
• 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.
• 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.
• 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. '
• 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.
• As a matter of policy, decisions, once made on principal should not be departed from in ordinary course.

Demerits of The Doctrine of Precedents

• 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 difficult to trace out all the relevant authorities on the very point.
• 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."
• 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.
• 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.

Factors Undermining the Authority Of A Precedent

• Abrogated decisions— 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.
• Same decision on appeal is reversed by the appellate court. — 24th amendment of Indian Constitution was passed to nullify the decision of the SC in the case of Golaknath.
• Affirmation and Reversal on a Different Ground — A decision is affirmed or reversed on appeal on a different point.
• Ignorance of Statute— A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute i.e., delegated legislation. A court may know of existence of the statute or rule and yet not appreciate in the matter in hand. Such a mistake also vitiates the decision. Even a lower court can refuse to follow a precedent on this ground.
• Inconsistency with Earlier Decision of Higher Court— A precedent is not binding if the court that decided it overlooked an inconsistent decision of a high court. High courts cannot ignore decision of Supreme Court of India.
• Inconsistency with Earlier Decision of Same Rank— A court is not bound by its own previous decisions that conflict with one another. The court of appeal and other courts are free to choose between conflicting decisions, even though this might amount to preferring an earlier decision to a later