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PRECEDENT AS A SOURCE OF LAW AND THE DOCTRINE OF STARE DECISIS


WHAT ARE PRECEDENTS?


In general English, the term precedent means, “a previous instance or case which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified.”

According to Gray, “precedent covers everything said or done, which furnishes a rule for subsequent practice.

According to Keeton, “a judicial precedent is judicial to which authority has in some measure been attached.”


In simple words, precedents are cases decided by a court of law where decisions are binding on similar cases that are brought to the same or lower courts. Jeremy Bentham called precedents, judge-made laws.

All developed societies in the world comprise of a judicial system, a system that is approached by people in case of any mishap or injustice. At the advent of civilisation, these judicial systems were guided by regional customs and regulations. With time, advancements in the legislation took place of customs as the main source of law. Many cases turned out to be decided, with the numerous varieties of cases that there could be, some were still similar and it would’ve been unfair to decide similar cases differently. This mindset gave rise to precedents as a source of law.

They must be strictly constitutive and not abrogative whatsoever. This means that even a judicial opinion can make a law, but it cannot change it. Where the rule of law is defined, it is the duty of the judge to follow the same rule. They cannot substitute the current rule of law with their opinions. The goal is to supply the legal system with a deficit, to cover the gaps with new legislation.


The common law system prevalent in most former British colonies including India is a system created by judges and tribunals. The whole system has come out of judicial decisions specially fields such as tort law are fully judge- made. And while domestic law is central to the notion of precedent, especially in Anglo-American common law countries. It has no substantive authority in international law. In this regard, legal scholars point to Article 59 of the Constitution of the International Court of Justice, according to which international legal judgments are binding only on the parties to the conflict at hand and have no consequence whatsoever on rulings outside of that specific case.


TYPES OF PRECEDENTS-


PERSUASIVE PRECEDENT

Precedent or other scholarly writings which, under common legal systems such as English law, are related to the case at hand but do not constitute a binding precedent for the court. In the present situation, though, the judge could be led by a persuasive authority to make a decision. Various references, such as lower courts, "horizontal" courts, international courts, dictated statements, treaties or law reviews, can provide a compelling precedent. As in the case of Scotch law, precedent is not binding on constitutional law and pluralistic systems, but the courts take care of the case law.


  • A lower courts’ decision might be taken into consideration provided that all laws and principles have been applied correctly.


  • A judge may take into account judgements from equivalent courts. A district may consider another district’s decision on a particular situation and apply it onto its own.


  • In the opinions of higher courts, courts may recognize obiter dicta. A higher court's Dicta, while not binding, is frequently persuasive to lower courts. The obiter dicta is usually "other things said" as its translation, but it is often difficult to distinguish from the ratio decidendi because of the high number of judges and several personal decisions (reason for the decision).


  • The court heard the verdict, and one judge disagreed with the ruling. “The judge in the next case may decide, to obey the obiter and the reasoning of the dissenting judge. However, the judge can only opt to overturn the authority of a lower or similar court in the hierarchy. For example, a district court should not rely on a dissent from the Supreme Court as a justification for ruling the case at hand.”


  • In treaties, revisions of the law and reviews of the law, the courts can accept the writings of distinguished legal scholars. The degree to which these types of writings are found by judges may vary considerably from the reputation of the author and the importance of the argument.


BINDING PRECEDENT

In rule, a binding precedent (also a compulsory precedent or a binding authority) is a precedent that must be observed in common law by all lower courts. Binding precedent relies on the legal principle of stare decisis. A stare decisis means standing by decided things. In the operation of the law, this guarantees certainty and clarity. Established contractual precedents from prior cases are extended by analogy in theory to current contexts.



REQUIREMENTS FOR A WORKING PRECEDENT-

  1. The location of the court hierarchy in the court that determined the precedent, according to the new case's position in the court.

  2. Whether, in previous decisions, the facts of the current case fall within the scope of the principle of law.


DOCTRINE OF STARE DECISIS

“Stare Decisis is a legal principle that directs judges to conform with and follow the precedents set by identical previous decisions. The basis of this moral philosophy is the Latin maxim, Stare decisis et non quieta movere, which means "to stand by decisions and not to disturb the undisturbed." Judges believe it to be in the legal sense that it should not conflict with previously settled matters in order to allow continuity. If several judges in various courts give their views on different topics, providing the same facts would lead to frustration and certain parties would conclude that their interests have been violated and would feel helpless and that they have not been provided with justice. Verdicts which can be viewed as possessing a binding precedent are not applicable in most civil courts, as the mere reading of the text is deemed to be in dispute with the rights of judges to interpret the law and the privilege of the legislature to set down the law.”


The majority of such systems, however, accept the concept of constant jurisprudence, which argues that, although judges are independent, they should judge them in a predictable and non-chaotic manner. As a concept, discretionary control is one that allows the decision-maker to apply his or her own reasonable judgment to the option of a number of acceptable alternatives. As there are no constitutionally correct choices in this decision, the discretionary authority, by its own nature, is expansive and opens up a wide variety of choices. Discretionary power, in particular whether it is capable of having far-reaching consequences, should not be given to a single individual. Consequently, the right of judges to read the code would not preclude the adoption of a small set of selected binding case laws.


RATIO DECIDENDI AND OBITER DICTA

There are cases involving problems which concede to being resolved on the basis of values. These rules are deduced from the analysis of the material details of the situation, removing the immaterial components. The theory which emerges as a consequence of such a case is not only applicable to that case, but also to cases which, in their fundamental features, are identical to the case decided. This theory is known as Ratio Decidendi. Issues which do not need to be decided on a general basis are answered in the circumstances of the individual situation and do not set down rules of general application. They're called the Obiter Dictum. It is the Ratio Decidendi of the case which is binding and not the Obiter Dictum which has the binding influence of the Precedent. It is for the judge, though, to determine the Ratio Decidendi of the ruling and to apply it to the event that he will rule. This gives him the ability to mold the legislation on the basis of the modified circumstances, with the focus on one or the other point.


“An argument from precedent seems at first to look backward. The traditional perspective on precedent . . . has therefore focused on the use of yesterday's precedents in today's decisions. But in an equally if not more important way, an argument from precedent looks forward as well, asking us to view today's decision as a precedent for tomorrow's decision makers. Today is not only yesterday's tomorrow; it is also tomorrow’s yesterday.”


The abovementioned paragraph talks about how a person becomes cautious while making decisions when the person knows that whatever he/ she decides, is going to be followed in every subsequent decision, thereby setting a precedent. This way helps the judge in making sound and justifiable decisions because someone, somewhere, is going to depend on the judge’s reasoning to deliver a judgement. Some jurists also oppose the concept of stare decisis owing to the effect of bad decisions on subsequent judgements. A person might have won a particular case if the judge hadn’t followed an xyz judgement, not following the xyz judgement could’ve been fairer for both parties and would have served the purpose of law successfully for the society as a whole. The court could have improved on the xyz judgement instead of just following it, but this would have required a lot of work from their counsels and would have had to prove as to why the xyz judgement could be overridden in this particular case, certain precedents have to be dug in. All this attention may have been best spent on evaluating the merits of an equitable or effective resolution of the conflict between parties in the present case. So: explaining stare decisis is not just a matter of telling just several things in it in your after-dinner address. It is a matter of explaining why the expenses, including those just listed, are worth bearing. Our jurisprudence is interspersed with a Hazardous collection of factors adduced to justify stare decisis. They include the importance of continuity, respect for expectations, decision-making, organized development of law, Burkean submission to indigenous tradition, formal or comparative justice, honesty, community, dignity, the legal significance of equal consideration of our courts, and the political desirability of limiting our judges and mitigating the capacity for judicial intervention. The justification for stare decisis is a field to which many contributions have been made, but to which no approach has been used.


Often people suggest that we should follow precedent, because we are no wiser than our predecessors. It's a matter of epistemological modesty, "bank and capital of ages," and so on. This might or might not be a legitimate justification, but even if it is, it has nothing to do with the rule of law. The same can be said for theories relating to issues such as the limitation of the agenda, the effectiveness of decision-making and the credibility of the mechanism. These reasons do not, however, offer any basis for the enforcement of precedent in the rule of law.


MERITS OF THE DOCTRINE OF PRECEDENT

  1. It is important, as a matter of ease, that if an issue is already settled earlier, it should be answered in the same way in any case that occurs afterwards. It needs not to be a matter of endless deliberation. It saves both the judges and the parties' time.

  2. Precedents add certainty to the statute. If the courts stop following precedents and the judges attempt to assess and re-determine matters at any moment without having recourse to prior rulings on the point, the law would turn into the most unpredictable aspect.

  3. Precedents are founded on customs and hence should be respected. They are followed by the Courts since those judgments are the principal and most definitive proof which can be offered of the presence of the customs which form part of the common law.

  4. Precedents direct judges and, as a consequence, in the presence of precedents, they are discouraged from making errors they may have made. Judges are forbidden from any prejudice contrary to precedents, partially because precedents are binding on them. By deciding cases on proven principles, the confidence of people in the judiciary is strengthened.

  5. Precedents are the rules made by the court. They are therefore more realistic. They're founded upon cases. It's not like the rule of statute, which is based on a priori principle. The law progresses and develops through actual cases.


DEMERITS OF THE DOCTRINE OF PRECEDENT

  1. There is still a chance to ignore the authority. The vastly growing number of lawsuits has an overwhelming influence on the judge and the prosecutor. It is very difficult to track all the appropriate authorities to this very date.

  2. Often the contradictory rulings of the higher court bring the judge of the lower court on the hands of a puzzle. The courts encountered what the English judge termed the "complete fog of authorities."

  3. A rather significant demerit, or perhaps an anomaly, in the theory of precedent, is that often an exceedingly wrong judgment is defined as law since it is not taken to a higher court.

  4. The great downside of the precedent theory is that the development of the statute rests on the event of litigation. Perhaps, since nobody has brought an intervention on them, the most critical points can remain undecided.


WHEN DOES A PRECEDENT LOSE ITS AUTHORITY?


  1. If it was established in ignorance of a law or rule having the force of a statute, that is, delegated legislation, a precedent is not binding. A court might recognize the essence of a statute or a regulation, but the facts of the case may not be known. Such a mistake also vitiates the verdict. On this ground, even the lower court will refuse to follow a precedent.

  2. A ruling shall cease to be valid if a statute or statutory law that is inconsistent with it is actually enforced or if it is reversed or reversed by a higher court. The higher court annulled the same decision on appeal. The 24th amendment to the Indian Constitution was adopted to annul the SC's ruling, as in Golaknath's case.

  3. A precedent lacks power when a higher court's contradictory opinion is ignored by the court that made a ruling on it. The decision of the Supreme Court cannot be disregarded by the high courts in India.

  4. The Court of law is not forced to follow its own prior rulings, which are in disagreement with each other. The appellant court and various courts are entitled to choose from opposing rulings, even though this may amount to choosing an earlier decision to a later one.


CONCLUSION

Precedents help in filling gaps in law and various statutes. Precedents add certainty to the statute. If the courts stop following precedents and the judges attempt to assess and re-determine matters at any moment without having recourse to prior rulings on the point, the law would turn into the most unpredictable aspect. Precedents add certainty to the statute. If the courts stop following precedents and the judges attempt to assess and re-determine matters at any moment without having recourse to prior rulings on the point, the law would turn into the most unpredictable aspect. Precedents direct judges and, as a result, they are prohibited from making mistakes that they may have made in the absence of precedents. Following precedents, judges are prohibited from any bias, partly since precedents are binding on them. By determining cases on proven values, people's confidence in the judiciary is enhanced.


Bhamini Tanwani

First year law student

Hidayatullah National Law University




REFERENCES-


  • Gray, J., n.d. Nature And Sources Of The Law.

  • Garg, P., 2015. Precedents as a source of law. [online] Academike. Available at: <https://www.lawctopus.com/academike/precedents-as-a-source-of-law/> [Accessed 26 January 2021].

  • Garg, R., 2020. Judicial precedent is a source of Law - iPleaders. [online] iPleaders. Available at: <https://blog.ipleaders.in/judicial-precedent-source-law/#:~:text=land%20is%20uniform.-,Nature%20of%20judicial%20precedents,must%20adhere%20to%20the%20same.> [Accessed 26 January 2021].


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