By Priyan Garg, Amity University, Uttar Pradesh
Editor’s note: The judiciary adjudicates the rights and obligations of the citizens, as per legislation, customs as well as a sense of justice. Judges often also take guidance from previous decisions and rely on past interpretations of questions of law. Such instances or cases which may be taken as an example of rule for subsequent cases are known as precedents. The importance of precedents is recognized in almost all legal systems across the world, since the ancient eras. While the degree of persuasiveness may vary as per the court delivering the judgment, the doctrine of stare decisis binds courts to stand by their decisions and not disturb the undisturbed.
Every developed legal system possesses a judicial organ. The main function of the judicial organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this adjudication, the courts are guided by customs and their own sense of justice. As society progresses, legislation becomes the main source of law and the judges decide cases according to it. Even at this stage, the judges perform some creative function. In the cases of the first impression, in the matters of interpretation, or in filling up any lacuna in the law made by legislation the judges, to some extent, depend on their sense of right and wrong and in doing so, they adopt the law to the changed conditions.
Inductive and Deductive methods
In the inductive method, there is a great reliance placed upon the decisions of the judges. Before deciding a case, the judges look into previously decided cases of a similar nature by their own court or by the superior court. From particular cases, they deduce general rules, and apply them on the cases before them and decide accordingly. This is known as Inductive method.
In the deductive method, there is a great reliance placed legislatures and enacted statues. In such a system, the cases are decided on the basis the enacted legislature and statue that are codified and the judges decide cases on the basis of these codes and not on the basis of previously decided cases. This method is called the Deductive method.
Authority of previously decided cases
In almost all legal systems, the judges take guidance from the previous decisions on the point, and rely upon them. But the authority of such decisions is not the same in all the legal systems. In most of the countries including India, acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions are compiled and published in reports. These reports are considered to be very valuable from the legal literature perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are called judicial precedents or precedents.
Definition of precedent
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.’
According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’
In a strict sense, that case law which not only has a great binding authority but must also be followed.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’
In general, in the judicial field, it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents. The application of such judicial decisions is governed by different principles in different legal systems. These principles are called ‘Doctrine of Precedent’. For this case to be held, first such precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the precedent under certain circumstances must be followed.
Thus it can be inferred that precedents are:
- Guidance or authority of past decisions for future cases.
- Precedents must be reported, maybe cited and may probably be followed by courts.
- Precedents must have opinio-juris.
- These must be followed widely for a long time and must not violate any existing statue law.
Nature of precedents
They must be ppurely constitutive and not abrogative at all. 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.
The function is limited to supplying the vacancies of the legal systems, filling up with new law the gaps that exist.
Importance of precedents
In the Ancient Legal System:
The importance of the decisions as a source of law was recognized even in very early times. In the past, there have been numerous instances of this. Sir Edward Coke, in the preface of the sixth part of his report, has been written that Moses was the first law reporter. ‘In the case of the daughters of Zelophehad, narrated at the beginning of the twenty- seventh chapter of the book of numbers, the facts are stated with the great clearness and expressly as a precedent which ought to be followed.’
Even in the Mahabharata, it has been stated that ‘The path is the right one which has been followed by virtuous men.’ This may be interpreted as giving a theory of precedent. In ancient legal systems of Babylonia and China, the judicial decisions were considered to be a great authority, and later on, they were embodied in code law.
In the Modern Legal System:
Among the modern legal systems, the Anglo – American law is judge made law. It is called ‘Common Law’. It developed mainly through judicial decisions. Most of the branches of law, such as torts, have been created exclusively by judges. The Constitutional Law of England, especially the freedom of the citizens, developed through judicial decisions.
According to Tennyson, “where freedom slowly broadness down, from precedent to precedent.”
Not only in the municipal law but in international law also, the precedents have their importance. The decisions of the International Court of Justice are an important source of International law. These precedents have been recognized by the International Court of Justice by Article 38(2)(d) of the Statue of the International Court of Justice. Further, Article 59 of the same holds that the decisions of the court only have persuasive value for future cases and hence the International Court of Justice is not bound by its own decisions in deciding similar cases in future. It holds that the decision is only binding the parties to the case.
The above brief discussion indicates the role and importance of decisions on precedents in the development of law and their importance as a source of law at the municipal as well as the international level.
Types of precedents
Persuasive precedent (also persuasive authority) is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, a persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.
A lower court’s opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.
Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority.
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts.
The obiter dicta is usually, as its translation “other things said”, but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision).
For this reason, the obiter dicta may usually be taken into consideration.
A Dissenting judgment
A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
Treatises, Restatements, Law Review Articles
Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings will vary widely with elements such as the reputation of the author and the relevance of the argument
Courts in other countries
An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States.
It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact that the European Union forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the “Court’s decision to place weight on foreign laws.” The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and “reaffirming American independence.”
In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law, it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.
Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of the law. Existing binding precedents from past cases are applied in principle to new situations by analogy.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. ‘A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law
Binding Precedent in England
Judges are bound by the law of binding precedents in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges’ decisions may be persuasive but are not binding.
Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:
The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
Whether the facts of the current case come within in the scope the principle of law in previous decisions.
Stare decisis (Latin: [ˈstaːre deːˈt͡s1iːsiːs], Anglicisation: [ˈsteɹɪ dɪˈsaɪsɪs]) is the legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters.
This doctrine is basically a requirement that a Court must follow the rules established by a Court above it.
The doctrine that holdings have binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret law does not preclude the adoption of a small number of selected binding case laws.
Authority of Precedents
The authority of a decision as a precedent lies in its Ratio Decidendi.
Ratio Decidendi and Obiter Dictum
There are cases which involve questions which admit of being answered on principles. Such principles are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements. The principle that comes out as a result of such case is not applicable only to that case, but to cases also which are similar to the decided case in their essential features. This principle is called Ratio Decidendi. The issues which need the determination of no general principles are answered on the circumstances of the particular case and lay down no principles of general application. These are called Obiter Dictum.
It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis on one or the other point.
Merits of the Doctrine of Precedents
It shows respect to one ancestors’ opinion. Eminent jurists like Coke and Blackstone have supported the doctrine on this ground. The say that there are always some reasons behind these opinions, we may or may not understand them.
Precedents are based on customs, and therefore, they should be followed. Courts follow them because these judicial decisions are the principal and most authoritative evidence that can be given of the existence of such a custom as shall form a part of the common law.
As a matter of great convenience, it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save the labor of the judges and the lawyers.
Precedents bring certainty in the law. If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain.
Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic and many other values of their age. They mold and shape the law according to the changed conditions and thus bring flexibility to law.
Precedents are Judge made law. Therefore, they are more practical. They are based on cases. It is not like statue law which is based on a priori theory. The law develops through precedents according to actual cases.
Precedents bring scientific development to law. In a case, Baron Parke observed ‘It appears to me to be great importance to keep the principle of decision steadily in view, not merely for the determination of the particular case, but for the interest of law as a science.’
Precedents guide judges and consequently, they are prevented from committing errors which they would have committed in the absence of precedents. 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.
Demerits of the Doctrine of Precedents
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. The courts faced with what an English judge called “complete fog of authorities.”
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.
Factors undermining the authority of a precedent
- Abrogated decisions – A decision ceases to be binding if a statute or statutory rule inconsistent with it is subsequently enacted, or if it is reversed or overruled by a higher court.
- Same decision on appeal is reversed by the appellate court. – 24th amendment of Indian Constitution was passed to nullify the decision of the SC in the case of Golaknath.
- Affirmation and Reversal on a Different Ground – A decision is affirmed or reversed on appeal on a different point.
- Ignorance of Statute – A precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute i.e. delegated legislation. A court may know of existence of the statute or rule and yet not appreciate in the matter in hand. Such a mistake also vitiates the decision. Even a lower court can refuse to follow a precedent on this ground.
- Inconsistency with Earlier Decision of Higher Court – A precedent is not binding if the court that decided it overlooked an inconsistent decision of a high court. High courts cannot ignore decision of Supreme Court of India.
- Inconsistency with Earlier Decision of Same Rank – A court is not bound by its own previous decisions that are in conflict with one another. The court of appeal and other courts are free to choose between conflicting decisions, even though this might amount to preferring an earlier decision to a later decision.
- Precedent sub silentio or not fully argued – When a point is not involved in a decision is not taken notice of and is not argued by a counsel, the court may decide in favour of one party, whereas if all the points had been put forth, the decision in favour of one party. Hence, such a rule is not an authority on the point which had not been argued and this point is said to pass sub silentio. Binding force of a precedent does not depend on whether a particular argument was considered therein or not, provided the point with reference to which an argument was subsequently advanced was actually decided by the SC.
Circumstances which increase the authority of a precedent
- The number of judges constituting the bench and their eminence is a very important factor in increasing the authority of precedent.
- A unanimous decision carries more weight.
- Affirmation, approval or following by other courts, especially by a higher tribunal, adds to the strength of a precedent.
- If an Act is passed embodying the law in a precedent, the gains an added authority.
Theories of precedents
This theory provides that,
Judges only discover law.
They discover and declare.
Coke C.J.: judicial decisions are not a source of law but the best proof of law is.
Wiilis v. Baddeley: there is no such thing as judge-made law.
Rajeshwar Prasad v. State of West Bengal, AIR 1965 SC 1887, the same theory was upheld by the Supreme Court of India.
This theory was criticised on a number of grounds
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 .
Precedents make law as well as declare it.
Judges have altered the law.
Judges make Law
Lord Bacon: the points which the judges decide in cases of first impression is a “distinct contribution to the existing law”.
Prof. Gray: Judges alone are the makers of Law.
Pollock: Courts themselves, in the course of the reasons given for those decisions constantly and freely use language admitting that they do.
This theory was criticised on a number of grounds
Judges cannot overrule a statute.
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.
Comparison between different legal systems
U.S. legal system
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:
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et quieta non movere — “to stand by and adhere to decisions and not disturb what is settled.” Consider the word “decisis.” The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not “to stand by or keep to what was said.” Nor is the doctrine stare rationibus decidendi — “to keep to the rationes decidendi of past cases.” Rather, under the doctrine of stare decisis a case is important only for what it decides — for the “what,” not for the “why,” and not for the “how.” Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.
In other words, stare decisis applies to the holding of a case, rather than to obiter dicta (“things said by the way”). As the United States Supreme Court has put it: “dicta may be followed if sufficiently persuasive but are not binding.”
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. … But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. … This is strikingly true of cases under the due process clause.
For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases. The U.S. 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.
English legal system
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. All other reasons are “by the way” or obiter dictum. See Rondel v. Worsley. A precedent does not bind a court if it finds there was a lack of care in the original “Per Incuriam”. For example, if a statutory provision or precedent had not been brought to the previous court’s attention before its decision, the precedent would not be binding. 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.
Civil Law System
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. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d’État in France are recognized as being bodies of a quasi-legislative nature.
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.g. 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 Legal System
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.
After the failed rebellion against the British in 1857, the British Parliament took over the reign of India from the British East India Company, and British India came under the direct rule of the Crown. The British Parliament passed the Government of India Act of 1858 to this effect, which set up the structure of British government in India. It established in England the office of the Secretary of State for India through whom the Parliament would exercise its rule, along with a Council of India to aid him. It also established the office of the Governor-General of India along with an Executive Council in India, which consisted of high officials of the British Government.
Much of contemporary Indian law shows substantial European and American influence. Various legislations first introduced by the British are still in effect in their modified forms today. During the drafting of the Indian Constitution, laws from Ireland, the United States, Britain, and France were all synthesized to get a refined set of Indian laws, as it currently stands. Indian laws also adhere to the United Nations guidelines on human rights law and the environmental law. Certain international trade laws, such as those on intellectual property, are also enforced in India.
Indian family law is complex, with each religion adhering to its own specific laws. In most states, registering marriages and divorces is not compulsory. There are separate laws governing Hindus, Muslims, Christians, Sikhs and followers of other religions. The exception to this rule is in the state of Goa, where a Portuguese uniform civil code is in place, in which all religions have a common law regarding marriages, divorces and adoption.
Ancient India represented a distinct tradition of law, and had an historically independent school of legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism, and was cited across Southeast Asia. Early in this period, which finally culminated in the creation of the Gupta Empire, relations with ancient Greece and Rome were not infrequent. The appearance of similar fundamental institutions of international law in various parts of the world show that they are inherent in international society, irrespective of culture and tradition. Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of embassies of a temporary or semi-permanent character. When India became part of the British Empire, there was a break in tradition, and Hindu and Islamic law were supplanted by the common law. As a result, the present judicial system of the country derives largely from the British system and has little correlation to the institutions of the pre-British era.
There are 1160 laws as on September 2007
In India, stare decisis is strictly followed and these are the general principles of stare decisis followed in India.
Each court is absolutely bound by the decisions of the higher courts above it.
Decision of one of the high courts is not binding on any other high court. They have only persuasive value.
In India, Supreme Court is not bound by its own decision.
A single bench is bound by the decision of a division bench of the same high court but a division bench is not to follow a decision of a single bench of the same high court.
From the brief discussion above about the legal value of precedents we can clearly infer that these play a very important role in filling up the lacunas in law and the various statues. These also help in the upholding of customs that influence the region thereby making decisions morally acceptable for the people. This thereby increases their faith in the judiciary which helps in legal development.
These moreover being a sort of respect for the earlier views of various renowned jurists, helps in upholding the principle of stare decisis. It is a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save labour of the judges and the lawyers. This way it saves lots of time for the judiciary which is a real challenge in the present day legal system with so many cases still pending for many years now. Precedents bring certainty in law.
If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic and many other values of their age. They mould and shape the law according to the changed conditions and thus bring flexibility to law.
Formatted on March 21st, 2019.
 The Nature and Sources of Law
 The Elementary Principles of Jurisprudence
 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932)
 Smith v. Allwright, 321 U.S. 649, 665 (1944)
  1 AC 191