Meaning of Precedents - Precedents as a source of Law

Meaning of Precedent

• An action or official decision that can be used as support for later actions or decisions; esp., a decided case that furnishes a basis for determining later cases involving similar facts or issues.
• In law a precedent is an adjudged case or decision of a Court of Justice, considered as furnishing rule or authority for the determination of an identical or similar case afterwards arising, or of a similar question of law.

Definitions of Precedent

According to Salmond '' The great body of the unwritten law is almost entirely the product of outside cases, accumulated in an immense series of reports extending backwards with scarcely a break to the reign of Edward the first at the close of The 13th century..... In practice, if not in theory, the common law of England has been created by the decisions of English judges.''

According to ketone'' A judicial precedent is a source of law.''

According to Blackstone:-'' For it is an established rule to abide by former precedent, where the same points come again in  litigation; as well as to keep the scale of justice even and steady and not liable to waver with every new judge’s opinion, as also because the Law in that case being  solemnly  declared and determined, what before  was uncertain, and perhaps in different, is now become a permanent rule, which it is not in the breast of any subsequent judge to alter or vary from, according to his private sentiment.'

Nature of precedent

Precedent constitutive 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 opinion for the established rule of law. Their function is limited to supplying the vacancies of the legal system, filling up with new Law the gaps that exist in the old and supplementing the imperfectly developed body of legal doctrine.

Authority of Precedent

 The reason why a Precedent is recognized is that a judicial decision is presumed to be correct. That which is delivered in judgement must be taken for established truth. In all probability, it is true in fact and even if it is not, it is expedient that it should be held to be true. The practice of following precedents creates confidence in the minds of the litigants. Love becomes certain and known and that in itself is a great advantage.

Circumstances which Destroy or Weaken the Binding Force of Precedent:-

• Abrogated decision
• Affirmation or reversal on a different ground
• Ignorance of statute
• Inconsistency with earlier decisions of higher courts
• Inconsistency between earlier decisions of the same rank
• Precedents Sub silentio or not fully argued
• Decisions of equally divided courts
• Erroneous decision
• 
  

Kinds of Precedents

• Authoritative and persuasive
• Absolute and conditional precedents
• Declaratory and original precedents

Authoritative and Persuasive Precedents

According to salmond, an authoritative precedent is one which judges must follow whether they approve of it or not. A persuasive Precedent is one which the judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve.

Difference between Authoritative and Persuasive Precedents: - authoritative residents are the legal sources of law and possessive presidents are merely historical. Authoritative precedents established in pursuance of definite rule of law which confers upon them that effect. If persuasive precedents succeed in establishing law at all, they do so indirectly by serving as the historical ground of some later authoritative precedent. They don't have any legal force or effect in themselves. The authoritative precedents must be followed by the judges. Whether they approve of them or not. The persuasive precedents can merely persuade the judge but it is up to the judge to follow them or not.

Example of Authoritative Precedent Precedents in England are the decisions of the superior courts of Justice.

(“Attorney General vs. Dean and Canons of Windsor”)

    Lord Campbell observe:'' Observations made by members of the house..., beyond the ratio decidendi which is propounded and acted upon in giving judgement, although they may be entitled to respect, are only to be followed in so far as they may be considered agreeable to sound reason and to prior  authorities.''

Examples of Persuasive Precedents: - Examples of persuasive precedents for the foreign judgements, especially those of American courts, Canadian courts, Australian courts, Irish courts, etc.

Absolute and Conditional Precedents

Authoritative precedents are of two kinds, absolute and conditional. In the case of absolutely authoritative precedents, they have to be followed by the judges even if they don't approve of them. They are entitled to implicit obedience. In the case of authoritative precedents having a conditional Authority, the courts can disregard them under certain circumstances. Ordinarily, they are binding but under special circumstances, they can be disregarded. The court is entitled to do so if the decision is wrong one. The decision must be contrary to law and reason. It is contrary to law when there is already in existence and established rule of law on the point and the decision does not follow it. When a law on apoint is already settled, the only duty of the judge is to declare it and apply it. However, when the law is not settled, the judge can make law for the occasion. But while doing so, it is his duty to follow reason. Unreasonableness is one of the vices of a precedent. The courts must not run the risk of making the law uncertain. Certainty of law is as important as Justice itself.

Case Law

(Ningappa vs. Emperor, 1941) Bom 408)

A question has been raised whether the decision of a Full Bench of the High Court can be overruled by another Full Bench consisting of a large number of judges. Chief Justice Beamount Expressed the View that the decision of a full bench until it is overruled by the Privy Council, is absolutely authoritative.

Declaratory and original precedents

According to salmond, our declaratory precedents is one which is merely the application of an already existing rule of law. An original precedent is one which careers and apply is a new rule. In the case of a declaratory precedent, the rule is applied because it is already low. In the case of an original precedents, it is love for the future because it is now applied. In the case of advanced countries declaratory precedents are more numerous. The number of regional Precedent says small but their importance is very great. The alone 12 the law of the country. Are definitely president is as record a source of law as an original precedent. The legal authority of board is exactly the same. An original precedent is an authority and source of nuclear but both original and accurately precedents have their own value