PRECEDENT AS A SOURCE OF LAW
1. INTRODUCTION
Precedents are the most important sources of law and are the important characteristics
of the Rule of Law. They have enjoyed high authority at all times and in all countries.
These are the laws that are created by the Courts.
“Precedents perpetuate the principles.”
[Benjamin Disraeli]
2. MEANINGS
o According to Oxford’s Dictionary, precedent means; a previous case or legal decision
that may be or must be followed in subsequent similar cases.
o Simply precedents mean “Judge made laws.”
3. DERIVATION
The word precedent is derived from the Latin word “Praecedere” which means “to go in
front of.”
“Praecedere”
“To go in front of.”
4. DEFINITION
The definitions of precedents are given as under:
i. A judicial decision that contains in itself a principle.
[Sir John Salmond]
ii. An action or official decision that can be used as support for later actions and
decisions.
[Black’s Law Dictionary]
iii. A judgment or decision of a court that is cited in a subsequent dispute as an
example or analogy to justify deciding a similar case or point of law in the same
manner.
[Britannica]
iv. A court decision that is cited as an example to resolve similar questions in later
cases.”
[Legal Dictionary]
v. Precedent is a legal principle created by the court, it provides authority for
judges to decide similar issues afterward.
5. ESSENTIALS
Ratio Decidendi (Rationality or reason behind the decision.):
According to Salmond, a precedent is a judicial decision which contains in itself a
principle. The underlying principle which thus forms its authoritative element is
often termed as the ratio decendi. The concrete decision is binding between the
parties to it but it is the abstract ratio decendi which alone has the force of law as
regards the world at large.
Rupert cross says that a ratio decendi is a rule of law expressly or impliedly treated
by the judge as a necessary step in reaching his conclusion.
Obiter Dicta (Remarks of judges which are not the part of the case.):
All that is said by the court by the way or the statements of law which go beyond the
requirements of the particular case and which lay down a rule that is irrelevant or
unnecessary for the purpose in hand, are called obiter dicta. Dr. goodhart defines
obiter dictum as a conclusion based on a fact the existence of which has not been
determined by the court.
6. THEORIES
i. Declaratory theory
According to this theory, judges are no more than the discovery of law. they discover
a law on a particular point and declare it. The view of chief justice coke is that
judicial decisions are not a source of law but the best proof of what the law is.
ii. Judge make law
According to this theory, judges do make laws
i.e. president is the law.
the law of England is based only on the judge making laws.
The lord bacon said that the points which the judges decide in case of first
impression is a, “distinct contribution to the existing law.”
7. DOCTRINE OF STARE DECISIS
“Stare decisis” is a Latin term that means “to stand by the things decided.”
Stare decisis is the doctrine that courts will adhere to (stick to) precedent in making
their decisions.
Simply, the decisions of higher courts will be binding to the decisions of lower courts.
8. Decision sub silentio:
In some cases, the court may make no pronouncement on a point with regard to
which there was no argument and yet the decision of the case as a whole assumes a
decision with regard to the particular point. Such decisions are said to pass sub silentio
and they do not constitute a precedent.
9. METHODS OF PRECEDENTS
i. Deductive (Fixed)
In this method, the law is already fixed, settled, and applied as it is in the individual
cases by the court
ii. Inductive (Molded)
In the individual method, the law is molded according to the facts of the case.
10. KINDS OF PRECEDENTS
The kinds of precedents are given as under:
i. Conditional Precedents
ii. Persuasive Precedents
iii. Binding Precedent
iv. Declaratory Precedent
v. Original Precedent
vi. Precedents Sub Silentio
vii. Super Precedent
Their detail is given as under:
i. Conditional Precedents:
The precedents which are binding in specific terms and conditions are called
conditional precedents.
ii. Persuasive Precedents:
“A precedent that is not binding on a court, but that is entitled to respect and
careful consideration.”
[Black’s Law Dictionary]
iii. Binding Precedent:
“A precedent that a court must follow.”
[Black’s Law Dictionary]
iv. Declaratory Precedent:
“A precedent that is merely the application of an already existing rule.”
[Black’s Law Dictionary]
v. Original Precedent:
“A precedent that creates and applies a new legal rule.”
[Black’s Law Dictionary]
vi. Precedent Sub Silentio:
“A legal question that was neither argued nor explicitly discussed in a judicial
decision but seems to have been silently ruled on and might therefore be treated
as a precedent.”
[Black’s Law Dictionary]
vii. Super Precedent:
1.“A precedent that defines a law and its requirements so effectively that it
prevents divergent holdings in later legal decisions on similar facts.”
2.“A precedent that has become so well established in the law by a long line
reaffirmation that is very difficult to overturn it.”
[Black’s Law Dictionary]
11. FACTORS THAT DESTROY BINDING EFFECT
Abrogated
Reversal
Ignorance of status
In-constituency with the same rank
Inconsistency with the higher court
Erroneous decision
12. Circumstances which increase the authority of a precedent:
There are circumstances which tend to increase the authority of a precedent. The
number of judges constituting the bench and their eminence is a very important
factor in increasing the authority of a precedent. A unanimous decision carries more
weight. Affirmation, approval or following by other courts, especially by a higher
tribunal, adds to the strength of a precedent. If an act is passed embodying the law
in a precedent, the precedent gains an added authority. To a limited extent, the
lapse of time adds to the authority of a decision. Likewise, if a precedent is not
followed for a long time, its authority starts deteriorating.
13. CONCLUSION
Consequently, we can say that precedents are the most important sources of law and
are the important characteristics of the Rule of Law. They have enjoyed high authority at
all times and in all countries. These are the laws that are created by the Courts.
“Precedents once established are so much positive power.”
[James Madison]
Quotes
Presidents perpetuate the principal
(B. Disraeli)
Presidents are so much positive power
(J. Madison)
