Discuss the precedent and its classification and which factors affect its binding nature ?

(1) Introduction:

According to Salmond, judicial precedent is an important feature of the English legal system as well as of other common law countries, which follow the English legal system judicial precedent has always been a distinguishing characteristic of English law. In practice, the common law in England has been created by the decisions of English Judges. Contrary to this, any of these modern systems, which are founded upon Roman law, and Roman law do not allow any such place or authority to precedent.

(2) Definition of Precedent:

Different jurists have defined precedent in different words.

According to Grey:

A precedent covers everything, which has been said or done and which furnishes a rule for subsequent practice.

According to Keeton:

A judicial precedent is judicial decision to which authority has been attached in some manners.

According to Salmond:

Salmond has defined it in loose and strict senses.

  • (a) In loose Sense
  • (b) in strict sense

(a) In loose Sense:

In loose sense, it includes merely reported case law, which may be cited and followed by courts.

(b) In strict sense:

In strict sense, it includes 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.

(3) Authoritative precedent:

(i) Meaning:

It is that precedent which judges must follow whether they approve of it or not.

(ii) Explanation:

It can be explained in the following words:

  • (a) Binding.
  • (b) Exclusion of judicial discretion.
  • (c) Legal source of law.
  • (d) Decisions of superior Courts.
  • (e) Kinds.
  • (f) Stare decisis.
  • (g) Ratio decidendi.

(a) Binding:

It is binding upon the judges or courts.

(b) Exclusion of judicial discretion:

It excludes judge’s judicial discretion for future.

(c) Legal source of law:

According to Salmond it establishes law in pursuance of rule of law. Therefore, it is considered legal source of law.

(d) Precisions of superior Courts:

Authoritative precedents are decisions of superior courts, which are binding for subordinate courts. Therefore, decisions of Supreme Court are binding for High Courts and other subordinate courts while decisions of High Courts are binding for other subordinate courts.

(e) Kinds:

Followings are its kinds:

  • (x) Absolute Authoritative precedent.
  • (y) Conditional authoritative precedent

(x) Absolute Authoritative precedent:

It is that authoritative precedent, which is absolutely binding and must be followed without question.

(y) Conditional authoritative precedent:

When the courts possess Limited authority to disregard a precedent, such precedent is conditional authoritative precedent.

(f) Stare decisis:

In respect of authoritative precedent, it can be explained in the following words.

  • (f-i) Origin
  • (f-ii) Role

(f-i) Origin:

It has been originated from the Latin Maxim, which means to stand by decision and not to disturb the undisturbed.

(f-ii) Role:

Its role can be explained in the following words.

  • (x) Respect of Precedents
  • (y) Settled Matters
  • (z) Authoritative Precedent

(x) Respect of Precedents:

It is due to legal principle of stare decisis that judges are obliged to respect the precedents, which have been established by prior decisions and courts are to abide by precedents.

(y) Settled Matters:

It is due to legal principle of stare decisis that judges are not to disturb the settled matters.

(z) Authoritative Precedent:

It is also due to legal principle of stare decisis that a precedent becomes authoritative.

(g) Ratio decidendi:

A judicial decision can be divided into two parts. One part is called ratio decidendi and other part is called obiter dicta. Authority of judicial decision lies in its ratio decidendi. In other words, a precedent is authoritative due to ratio decidendi.

(4) Factors, which affect or weaken or reduce binding force of precedent:

Following factors can affect or weaken or reduce the binding force of precedent.

  • (i) Abrogation of decision.
  • (ii) Doubts.
  • (iii) Reversal of decision.
  • (iv) Injustice.
  • (v) Not speaking order.
  • (vi) Uncertainty of law.
  • (vii) In consistent with decision of earlier higher court.

(i) Abrogation of decision:

A precedent ceases to be effective if a statute which is inconsistent with such a precedent, is enacted.

(ii) Doubts:

A precedent loses its binding force when it creates doubts.

(iii) Reversal of decision:

A precedent ceases to be effect if some higher court overrules or reverses it.

(iv) Injustice:

Bind force of a precedent is destroyed when it causes in justice.

(v) Not speaking order:

A precedent does not remain binding if it does not consist of speaking order.

(vi) Uncertainty of law:

A precedent ceases to be effective if it creates uncertainty of law.

(vii) In consistent with decision of earlier higher court:

A precedent loses its binding force when it is inconsistent with decision of earlier higher court.

(5) Obiter Dicta:

  • (i) Literal Meaning.
  • (ii) Legal Meaning.

(i) Literal Meaning:

It literally means a word said by the way.

(ii) Legal Meaning:

An obiter dictum means an observation which is made on a legal point in a decision but which does not arise in that manner which is required for decision. Something said in passing an opinion expressed by a judge legal question even though it was not necessarily required in the decision of the case and therefore not precedential. on a

(6) Conclusion:

It can be finally stated that the disregard of a precedent assumes two distinct forms. These forms are overruling and refusal overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void. On the other hand a refusal to follow a precedent is an act of co-ordinate and is not an act of superior jurisdiction.

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