PRECEDENTS AND ITS KINDS

 

PRECEDENTS AND ITS KINDS

 

Overview:-

 

Ø Precedent is anything said or done which is quoted and cited as authority for subsequent conduct.

 

Ø Precedents literally mean previous judicial decision. The decisions of the higher courts are binding on the lower courts. The binding force of decision is called precedent.

 

Ø A judicial decision is a precedent when is creates a new rule; otherwise it is a judgment as between the parties.

 

Ø  The precedents play an important role in the development of law. These independent decisions become precedents which are followed later on by the same & lower courts.

 

Ø  This method of decision is also called as Judge made law. The English and American law is mostly based upon the precedents.

 

 

 

 

 

 

 

 Definition of precedents:-

 

Precedents are a decision of a court which is also called judicial decision. According to the Oxford University, “Precedents means the previous decision of a case given by a court according to rules.”

According To Prof. Osborn: “Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”

 

Nature of Precedent:

A precedent is purely constitutive and in no degree abrogatory. 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 opinions for the established rule of law.

 

Precedents as a Source of Law:-

The precedent is an important source of law. It is available in the form of judicial decisions. Now the question arises that in what sense and when the precedents are binding to follow. No doubts the precedents is not binding like warrant issued by a court of law.  It means precedent can be over- ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by all to whom it is applicable.

If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts of it :-

 

i):Ratio-decidendi:-

It means reasons which leads the court to reach the decision. It is the main part of the case in judgment and the ratio decidendi of the decision is binding in the form of precedent.

 

ii); Obiter Dicta:-

It is also a part of the decision which is irrelevant to the facts and circumstances of the case. The judge takes into consideration the social conditions, morality, principal of natural justice that is why the Judges play an important role in the development of legal system. The obiter dicta have the force of persuasive precedents only. In the course of his judgment a judge may let fall various observation not precisely relevant to the issue before him. The judges are not bound to follow them.

 

Advantages Of Obiter Dictum:’

Following are the advantages of obiter dictum:

(a)   Obiter dictum help in the growth of law.

(b)  These sometimes help the cause of the reform of law.

(c)   The judges are expected to know the law and their observations are bound to carry weight with the government.

(d)  The defects in the legal system can be pointed out in the obiter dictum.

(e)   They serve to suggest solutions to problems not yet decided by the Courts.

 

 

Classification of Precedent

Precedents may be classified into three divisions;

(i)               Declaratory and Original Precedents : according to the nature of the rule laid down

(ii)             Authoritative and Persuasive Precedents: according to the influence exercised by them on the course of future decisions, and

(iii)           Precedents of Absolute and Conditional Authority: according to the nature of the authority.

 

I):Declaratory and Original Precedents:

a): Declaratory precedents:

Declaratory precedents are those which do not lay down a new rule of law but only declare a principle of law already existing. When the law is already sufficiently well evidence, as when it is embodied in a statute or set forth with fullness and clearness is some comparatively modern case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our case law. Such precedents merely declare the law.

 

b):Original Precedents:

Original precedents are those which lay down a new rule of law. These are the outcome of the internal exercise by the courts of their privilege of developing the law while sitting to administer it. Such precedents make the law.

II): Authoritative and persuasive precedents:

a):Authoritative precedents:

Authoritative precedents are those which must be followed whether the Judge deems the principle laid down as correct or not. Thus, the decisions of the High Court are authoritative precedents for the subordinate Courts and the decisions of the Supreme Court are authoritative precedents for the High Courts and all other subordinate Courts

b):Persuasive precedents:

Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of Indian high courts and the Supreme Court of India or of other Foreign Courts are merely persuasive precedents for the Courts in Pakistan.

III): Precedent of absolute authority and of conditional authority:

a): Precedents of absolute authority:

Precedents of absolute authority are those which are absolutely binding, however, unreasonable or erroneous they may appear to be. In this sense also the precedents of superior Courts are precedents of absolute authority for the inferior or subordinate courts. Similarly, a decision of the Full Bench is binding on a Bench consisting of two or more judges of the same and subordinate courts.

b):Precedents of conditional authority:

Precedents of conditional authority are those which are binding but not absolutely. Thus, a decision of a single judge of the High Court is only a conditional authoritative precedent for a Judge of the same or another High Court

 

 

Merits of precedents:-

            Precedents are a very important source of Law. They play an important role in the development of law, so they have certain advantages as: 

1. Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case, it is a kind of respect to elders.

2. Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances.

3. Precedents are based on customs means the law in the form of act which based upon customs. Court interprets the customs while interpreting any act.

4. Precedents are convenient and easy to follow because they are available in the form of written reports.

5. Precedents bring certainty in law, once decision is given in a case there would be no need to repeat all precedents in any other case if it resembles to the former case.

6. Precedents are the best guide for the Judges: They play an important role in the judiciary because the precedents are the guide lines for the courts.

Demerits of the precedents:-  

            Although the demerits are very few but these are as under :-

i) The decisions are given by the human beings while performing the duties as judge, his decision may not be suitable to all persons who have different mind and thinking. This will be a bad effect on Judiciary.

ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes harder for another judge to apply the same verdicts as a precedents of higher court

iii) Sometimes the higher courts give a wrong decision and bypass the important factors of the case due to one reason or the others.