Why precedent is the source of law

It depends on the court to decide whether to consider it or not. Original precedent: An original precedent arises when the court has never taken a decision in a case and it has to use its own discretion to reach a conclusion. It helps to create new law. Declaratory precedents: A declaratory precedent is application of existing precedent in a particular case.

A declaratory precedent involves declaring an existing law and putting into practice, hence it does not help in creating new law. The factors that destroy the authority of the precedent: A precedent ceases to be binding if statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.

An authoritative judgment can discard the earlier decisions: a If the precedent decision was given in ignorance of law; b If the precedent decision is inconsistent with the decision of the higher court; c If the earlier decision is contrary to reason i.

It includes the rule or principle established and formulated by means of decision. The principle is applicable in all future judgments that compose similar facts; ratio decidendi is binding on all the lower courts of the country.

The ratio or reasons for taking a decision are deduced from the facts of the case and later applied in all the other cases, it forms the basis for accepting a particular decision as precedent.

Obiter dictum Obiter dictum is an opinion or a remark made by a judge which does not form a necessary part of the court's decision. Obiter dicta refer to certain opinions, ideas, examples, statements, observations, etc that are made by the judge while taking the decisions. These opinions are not binding on all the other courts while they are only persuasive in nature. Advantages of judicial precedent Everyone dealing with a similar case is treated in a similar manner there is equality and fairness of justice.

It acts as guidelines to decide future cases. Precedents saves time and increases convenience as a question once decided is settled and it saves the time and labour of judges and lawyers. Precedents help to prepare new statutory laws and adjust according to the changing conditions of the society.

Cases which makes them more practical. Binding precedent establish a rule that helps to maintain stability.

Disadvantages of precedent A precedent makes a lower court bound to follow it which sometimes forces it to take lesser or harsher decisions then actually required. This means that there is only one Judiciary that is responsible for the interpretation of the Constitution. The Apex Court is the ultimate interpreter.

This is a part of the basic framework of our Constitution. We are Federal with a strong Centre, unlike the United States where they follow federalism in the true sense.

This was done with the view of ensuring that the various provinces while having their own State Legislatures are held together by a strong centre.

This was to make sure that riots and protests do not break out in the newly formed nation that had not only been ruled by the Britishers but had also recently witnessed a partition that resulted in a refugee crisis as severe as the refugee crisis in Europe after the Second World War.

The person who is best equipped to make a decision is the Supreme Court and its judges. There arises no question as to who the most effective, appropriate and the only body must be, while interpreting the law. It is the Supreme Court. In these cases, judicial precedents allow us to make sure that the law of the land is uniform.

The primary function of the Judiciary is the settlement of disputes. Initially, while adjudicating, the courts are guided by customs and their own sense of justice.

Later on, legislations become the main source of law and the Rule of Law is what judges base their decisions on. The importance of the decisions as a source of law was recognized in very early times.

Sir Edward Coke, in the preface of the sixth part of his report, had mentioned that Moses was the first law reporter. Even in the religious scriptures, it has been stated that the path followed by virtuous men must be passed on from generation to generation.

This is the idea behind precedents. In the Babylonian empire and the Chinese dynasties, the judicial decisions were considered to be a source of law. Among the modern legal systems, the Anglo — American law is judge made law. It has developed only through judicial decisions. Most branches of law, such as torts, have been created exclusively by judges. The Constitutional law of England and in specific the freedom of citizens has been developed through judicial decisions.

Not only in municipal but also in international law precedents are given immense importance. The decisions given by the International Court of Justice are an important source of international law.

Article 59 of the same convention expresses that the decisions of the court only have persuasive value for future cases and therefore hints at the fact that the International Court of Justice is not bound by its own decisions in deciding factually similar cases in future. 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.

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 very 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. 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. Coke C. Wiilis v. Baddeley : there is no such thing as judge-made law. Rajeshwar Prasad v. Bentham and Austin : legislative power is not with Courts and they can not even claim it.

Salmond : both at law and in equity, however the declaratory theory must be totally rejected. Pollock: Courts themselves, in the course of the reasons given for those decisions constantly and freely use language admitting that they do. Where a statute clearly laid down the law, the judge has to enforce it. The judge is confined to the facts of the case while enunciating legal principles.

Within those limits alone it can be said that judges make law. After this brief discussion about the nature, definitions and authority of precedents let us move on to look at the value of precedents in different countries in the world.

In the United States, which uses a common law system in its state courts and to a lesser extent in its federal courts, the Ninth Circuit Court of Appeals has stated:. In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:. Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. For example, in the years —, the U.

Supreme Court reversed itself in about cases. The U. Supreme Court has further explained as follows:. When convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to re-examine the basis of its constitutional decisions.

The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal systems that derived from it such as those of Australia, Canada, Hong Kong, New Zealand, Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law by a Judge in deciding a case.

The doctrine states that within the hierarchy of the English courts a decision by a superior court will be binding on inferior courts. This means that when judges try cases they must check to see if similar cases have been tried by a court previously.

If there was a precedent set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set by an inferior court, a judge does not have to follow it, but may consider it. The House of Lords now the Supreme Court however does not have to obey its own precedents.

Only the statements of law are binding. This is known as the reason for the decision or ratio decidendi. See Rondel v. Worsley [5]. Also, if a court finds a material difference between cases then it can choose not to be bound by the precedent. Persuasive precedents are those that have been set by courts lower in the hierarchy.

They may be persuasive, but are not binding. Most importantly, precedents can be overruled by a subsequent decision by a superior court or by an Act of Parliament. Stare decisis is not usually a doctrine used in civil law court system, because it violates the principle that only the legislature may make law.

In theory therefore, lower courts are generally not bound to precedents established by higher courts. The doctrine of stare decisis also influences how court decisions are structured. In general, court decisions in common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent in future cases.

By contrast, court decisions in some civil law jurisdictions most prominently France tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing.

However, e. German courts put less emphasis of the particular facts of the case than common law courts, but on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is. Indian Law is largely based on English common law because of the long period of British colonial influence during the period of the British Raj.

It is binding upon them and excludes their judicial discretion for the future. 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 such weight as it seems to them to deserve.

It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical. The Absolute and Conditional Authority of Precedents. Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be.

It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it. In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice.

Circumstances attaching weight to precedents;. The circumstances which tend to increase the authority of precedents are;. Unanimity of the court giving the decision. Affirmation or approval by the courts. Eminence of the judge giving the decision.

Absence of criticism by the profession. Learned arguments, consultations of judges. Circumstances lessening the authority of precedents;. These may be summed up as follows;.

Failure to notice contrary decisions. Being mislead by reliance on a case of no authority.