PRECEDENT - AS A SOURCE OF LAW

 

‘Precedent’ is a legal principle or rule that has been established by a court decision. It is a source of law that is binding on lower courts in the same jurisdiction. When a court decides a case, it is bound to follow the precedent set by higher courts in the same jurisdiction.

Nature and authority of precedent:

Precedent is not a rigid doctrine. A court can depart from precedent if it finds that the precedent is wrong or outdated. However, a court will not depart from precedent lightly. In its nature, “A precedent is purely constitutive and in no degree abrogative” which means a precedent can not abrogate any law but it can create a rule of law. The authority of precedent derives from its trueness. It is an established rule of law, produced in the form of a judgment by a court of law, that ought to be taken as true.

Basically, the doctrine of precedent is based on the principle of stare decisis, which means “to stand by the decisions”. The doctrine of stare decisis is based on the following reasons:

• It provides certainty and predictability in the law.
• It promotes consistency in the application of the law.
• It respects the authority of higher courts.
• It discourages litigation.

Circumstances weakening the binding force of precedent:

• Overruling: A higher court can overrule a precedent set by a lower court in the same jurisdiction.
• Distinguishing: A court can distinguish a precedent from the case at hand and apply a different rule of law.
• Reversal: A precedent can be reversed by the same court that decided the case.
• Abrogation: A statute can abrogate a precedent.
• Change in circumstances: If the circumstances surrounding a precedent have changed significantly, a court may not follow the precedent.

 Circumstances increasing the authority of precedent:

• Precedents set by higher courts have greater authority than precedents set by lower courts.
• A unanimous decision carries more authority than a divided decision.
• Older precedents are generally considered to be more authoritative than newer precedents.
• A precedent that has been cited frequently by other courts is considered to be more authoritative than a precedent that has been cited rarely.
• A precedent that is well-reasoned and persuasive is considered to be more authoritative than a precedent that is poorly reasoned or unconvincing.
• A precedent that is widely accepted by the legal community is considered to be more authoritative than a precedent that is disputed or controversial.

Kinds of Precedent:

• Abrogative precedent: An abrogative precedent is a precedent that has been overturned or overruled by a higher court. It is no longer binding on lower courts and cannot be used as authority in future cases.
• Persuasive precedent: A persuasive precedent is a precedent that is not binding on a lower court but may be considered by the court when making a decision. Persuasive precedents may include decisions of lower courts in other jurisdictions, decisions of foreign courts, and scholarly writings.
• Absolute precedent: An absolute precedent is a precedent that is binding on lower courts and must be followed in all cases. Absolute precedents are rare and are typically reserved for cases involving fundamental constitutional rights.
• Conditional precedent: A conditional precedent is a precedent that is binding on lower courts, but only in certain circumstances. For example, a court may be bound to follow a precedent that interprets a statute, but only if the statute is still in effect. If the statute has been amended or repealed, the court is no longer bound by the precedent.

Doctrine of Stare Decisis:

Stare decisis is a Latin term that means "to stand by things decided". It is a legal doctrine that requires courts to follow the precedents set by previous decisions of higher courts in similar cases. The purpose of stare decisis is to ensure consistency, predictability, and stability in the law. For example, if the Supreme Court has ruled on a constitutional issue, lower courts are bound by that ruling and cannot deviate from it. Stare decisis also fosters respect for the judicial system and its integrity. However, it is not an absolute rule, and courts may sometimes overrule or distinguish prior decisions that are unworkable, badly reasoned, or outdated.

Ratio decidendi and Obiter dictum:

Obiter dictum and ratio decidendi are two Latin terms that are used in the context of judicial decisions. Obiter dictum means "something said by the way" and refers to any remark or opinion that is not essential to the resolution of the case. Ratio decidendi means "the reason for the decision" and refers to the legal principle or rule that is binding on lower courts and future cases with similar facts.

The main difference between obiter dictum and ratio decidendi is the relevance and authority of the statement. Obiter's dictum is not strictly relevant to the issue at hand and does not have the force of law. Ratio decidendi is directly relevant to the issue at hand and has the force of law.

An example of obiter dictum is when a judge speculates about what his decision would have been if the facts of the case had been different. This is not binding on later courts, but it may be persuasive or offer guidance. An example of ratio decidendi is when a judge applies a statutory provision or a precedent to the facts of the case and reaches a conclusion based on that. This is binding on later courts unless they have the power to overrule or distinguish the case. 

 

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