The law has expanded and evolved to a great extent with time, but the edifice on which law originated still remains unchanged. Jurisprudence helps us understand such basis of law or the principles on which the laws were framed and are still being framed. Judicial precedents are one of the important sources of law and have had an immense impact on the legal system throughout the globe. Precedents frame the stairwell to a developing legal system of any country since it keeps in mind both, the culture or sentiment of the people of a land and the modernization or development taking place.
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Definition and Opinions by Various Jurists
“Judicial precedent” is a quite self-explanatory term. Precedents, as the word suggests, are the prior made judicial decisions or judgements. These are the statements of law found in a judicial decision to which the subordinate or same court shall abide.
According to Salmond, ‘Precedent’ in the making of law by the recognition and application of new rules by the Courts themselves in the administration of justice. He’s of the view that almost all the unwritten rules and laws are a product of the immense series of accumulated reports . All the countries that follow the English common law system have a great significance of judicial precedents in their legal system. Although, there are jurists that disagree on precedents being a source of law. According to Stobbe, precedents are the practical application of law and hence cannot be regarded as a source of law. Keeton, on the other hand, disregards Stobbe’s theory. There are two points that he states to support his view. Firstly, due to the political and social position that the Judges hold; secondly, because of the importance of the issues they decide, Keeton believes that judicial precedents have always had an authoritative value and hence, can be regarded as sources of law. Precedents have developed with consistency, constructiveness, certainty and predictability of the decisions. Many laws such as The Law of Torts, Contract Law, Property Law etc. are fabricated with judicial decisions.
Development of Precedents in the Legal System
Precedent as a source of law has developed revolutionarily. In ancient Indian society, the scope of Precedents as a source of law was less due to the lack of adequate sources to keep records. In early English Common law, the Doctrine of Stare Decisis was not prevalent since the royal courts were not organized in a hierarchy but were in competition with one another, until the eighteenth century. With the various reforms that arose in the nineteenth century, the courts were unified with a hierarchical structure. Thereafter, the doctrine of Stare Decisis adhered in both England and the United States. The Government of India Act, explicitly mentioned that the decision of Federal Courts and Privy Council will be binding on all the other courts’ decision in British India. It was after this Act, that the Precedent was recognized as a characteristic feature in the legal system.
Legal principles of Precedent
- Ratio Decidendi: The term ‘Ratio Decidendi’ literally interprets as ‘reason for the decision’. These are the legal principles, in a judgement, on which a case is decided. According to Rupert Cross, the ratio is the rule of law that the Judge implements to reach the conclusion. Precedents are binding in the sense that when a rule of law is applied and formulated in a case, the same shall apply in any analogous case arising thereafter. In the case of Union of India v. Maniklal Banerjee  it was upheld that only the ratio of a judgement is binding and holds precedent values. The ratio of a judgement can be decided with the help of the following tests-
- Reversal Test/ Wambaugh Test- This test was pronounced by Wambaugh with the supposition that the ratio is the most important part of a judgement. When it is reversed or altered, the decision that was originally made also changes. In this test, we take the proposition of law made by the judge, reverse or negate it and check if it alters the actual decision. If it does, then that proposition is the ratio decidendi .
- Material fact/Good Hart Test – The Material fact theory was proposed by Goodhart in the year 1929. He suggested that the ratio has to be determined by ascertaining the facts treated as materials by the judges together with the decision on those facts. Goodhart states that “It is by his choice of material facts that the judge creates law.”
The significance of ratio decidendi in Precedents can be viewed in the case of Donoghue v. Stevenson . A client became ill after drinking spoiled ginger beer which was a dead snail in and sued the manufacturer, the ratio decidendi is to be the part that read ‘a person owes a duty of care to those who he can reasonably foresee will be affected by his actions’. The ratio of the case subsequently brought major development to the law of negligence.
- Obiter Dicta- Obiter Dicta literally means “that which is said in passing”. These are the incidental opinions uttered by a judge. The obiter dicta do not form the binding part of a decision since they are the conclusions and observations made by the court in a judicial decision and aren’t directly related to the decision of the case. The Obiter Dicta of one case can be implemented as the Ratio Decidendi of another. This was illustrated in the case of R v. Gotts , the Court of Appeal followed the obiter dicta of R v. Howe  case as a persuasive precedent on deciding the non-availability of duress as to a charge of attempted murder.
- The doctrine of Stare Decisis- Stare Decisis implies, “let the decision stand in its rightful place”. This doctrine operates on the principle of hierarchy of the courts. It binds the lower courts to follow the historical cases when deciding a similar case. Every lower court is absolutely obligated by the decision of the court superior to it. In Tribhovandas Purshottamdas Thakkar Vs Ratilal Motilal Patel.  the Supreme Court held that the Single Judge Bench of a High Court is bound to accept as right the decision made by Courts of coordinate jurisdiction, Division Benches and Full Benches. The decisions of one High Court are not binding on another High Court but hold a persuasive value. This doctrine promotes consistency and certainty in judicial decisions.
Kinds of Precedent
- Original Precedent and Declaratory Precedent– Salmond explains that a declaratory precedent is the one that is just the utilization of an already existing law, whereas an original precedent is the one which establishes original or new rules of law. Unlike the declaratory precedent, in original precedents, the court is required to make principles of law through its decisions. Both the precedents have equal authoritative values.
- Authoritative Precedent and Persuasive Precedent- Authoritative precedents are those which the courts are obliged to follow and are binding in nature. On the other hand, Persuasive precedents, as the name suggests, may be taken into consideration while deciding a case as the judges may seem fit. The later kind of precedent are not binding on the courts and have merely historical value, whereas Authoritative precedents are regarded as legal sources of law.
- Absolute Precedents and Conditional Precedent- Both, the Absolute and Conditional Precedents, are kinds of Authoritative Precedents. Absolute Precedents are those which are expected to be followed by the judges even when they do not assent to it. The Conditional Authoritative Precedents are those which the judges may opt to disregard only under special conditions. When the decision is found contrary to law and reason, the judges may dissent or overrule the actual decision. A court with higher jurisdiction is only permitted to declare a decision as unreasonable and unlawful. A court of equal jurisdiction can only dissent to such decisions.
Theories of Precedent
The question that arises in this context is- Whether or not Judges make laws? There are two theories put forth by the various Jurists to answer this question, one is the Declaratory theory and another is that Judges are lawmakers.
- Declaratory Theory- This theory presents the Judges as mere discoverers of law. According to Sir Mathew Hale, Judges merely implement the laws and the right to make proper laws lies only with the King and the Parliament (the legislation). In Willis v. Baddeley , Lord Esher obliterates any such things as “judge-made laws”. He opines that the Judges only apply the existing to the circumstances. Salmond, on the other hand, was with the view that Precedents make law as well as declare it. Critics also pointed out that in the field of equity, judges have played an important role not only in interpreting and modifying the Common law but in creating new laws as well. Yet, according to the followers of this theory, the role of the courts was limited to the application of the existing laws.
- Judges are Law-makers- The other view is that the judges are lawmakers. Dicey, mentioning the English Common Law system, states that most laws in England are judge-made laws . According to Gray, those who have the authority to interpret the law and say what the law is, are the true law-givers. Gray considers the judges alone as the law-makers . Keeping in view the Indian judicial system, Article 141  confers the power of law-making with the Supreme Court and makes it obligatory for all other courts in the country to abide by such laws. The courts, in India, with the power of law-making being bestowed to them have made various important rulings. For instance, in People’s Union of Civil Liberties v. Union of India (2001), the Supreme Court included the “Right to Food” in the ambit of Fundamental Rights under Article 21 of the Constitution. However, the critics state that the legislative powers of a judge are narrowed to the facts of the case before him. Any statement passed by the judge that doesn’t form the ground of his decision is only the Obiter Dicta and is not binding in nature.
Merits of Precedents
- Precedents bring certainty in the law. It is necessary that once a question is decided, it shall be settled and shall not be subject to rearrangements in any later cases.
- Precedents are more practical based. The judges decide a case by keeping in view the status quo, sentiments, rights and culture of the people of any region. Hence, the judgements are righteous to a great extent.
- Precedents are the guiding lights for the judges. They act as a reference for the judges and consequently prevent them from committing errors.
- Precedents help in bringing about scientific developments in the law.
- Precedents bring flexibility in law since they are influenced by the society and prevailing conditions, and change with the change in the situation.
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Demerits of Precedents
- When an erroneous decision is made, the subordinate courts are bound to follow the same since it is established as a law.
- The judges of superior courts, sometimes, express a conflicting opinion on some issues and any decision based on such opinions possess problems to the judges or lower courts or are erroneous.
- Laws framed by precedents are dependent on the incidents of litigations for its development.
- Laws based on case laws are incomplete since the judges take into consideration only the facts of a particular case.
- It overlooks the principle of natural justice which provides that law must be known before it is actually enforced.
 V.D. Mahajan,”Jurisprudence and Legal Theory” 242 (Eastern Book Company, Lucknow, 1987, 5th edn.).
 AIR 2006 SC 2844.
 Eugene Wambaugh, “The Study of Cases”, Little, Brown & Co., 1892.
  UKHL 100.
  2 AC 412.
  AC 417.
 AIR 1968 SC 372.
  2 QB 324.
 A.V. Dicey, “Law and Opinion in England”, Macmillan and Co., 1905.
 John Chipman Gray, “Nature and Sources of Law”, Dartmouth Publishing Company, 1997.
 The Constitution of India,1950.
BY ANWESHA MISHRA | MADHUSUDAN LAW COLLEGE, ORISSA