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Precedents: As a source of Law

Precedent is the pillar of the common law procedure. It is the key process by which results are achieved by common law. The doctrine of precedents is centred on the ratio decidendi and obiter dictum. The purpose my project is to tell why precedents important in the legal system and what can be more done to furnish it, what does different juristics say about precedents. How stare decisis is different from precedents, what are their doctrines.

Kinds of precedents are an authoritative precedent, persuasive precedent, original precedent, declaratory precedent and what are their uses and when they are applied. I have discussed what is the difference between ratio decidendi and obiter dicta with the case of Donoghue v. Stevenson[1].

There is a difference between res judicata and precedents, res judicata is only that if once the decision is given the parties can't come up with the same issues again the court. But there are many challenges, issues to precedents as why court decision should be considered as law though if it found that it was erroneous. So there are four justifications to its consistency, expectations, lawmaking, replicability these four justifications are formed on the basis that to keep people's expectations on the court, they have to state decisions which court declared in the past decisions of the similar facts. But there are exceptions also, the court is allowed to depart from a past decision if it is not suitable in today's world.

There many challenges to precedents there is no authority that they will correct because it may happen that at that point of the time it may be the best possible interpretation at that point of time according to morality that exists in the society so referring this there are so many challenges, issue to the precedents and also disadvantages like it sometimes become so complex that judge take too much time to understand in what context the earlier judges wrote this decision. Also, we always can't satisfy the people and meet their expectations.

However, the doctrines are much criticized for the simple fact that, in practice, every precedent could be interpreted both ways to serve the interests of the adversary lawyers. And therefore, it is difficult to point out what legal principle does any precedent stand for. [2] Also, it doesn't create laws for the future as we refer to past decisions. But there are advantages also as not always but there are chances of fairness, always there is space for new precedent as there will be cases which will be heard the first time in the history, precedent provides guidance, saves time.

Precedents are followed for a long time and consider that they should not be violated. The purpose of this project, is to examine the various possible explanations for such constraint, and to advance several arguments which might facilitate a better understanding of the nature and authority of precedent.

The literal meaning of Precedent

The text of Mahabharata says �that path is the right path which has been followed by virtuous men.� The concept of precedent is based on this theory. The edifice of the common law is made up of judicial decisions. The doctrine of precedents grew in England in the absence of codified laws. The rule of law requires not overturning precedents too often. Aristotle said the habit of lightly changing the laws is an evil .[3]

In common law legal systems, a precedent or authority is a legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts. [4] It is mainly the application and recognition of new rules by the courts.[5] Precedents are presented as an authority by the court. The English doctrine of precedents is that the House of Lords is bound by its own decisions. [6]

A precedent is a past event � in law the event is nearly always a decision �which serves as a guide for present action. Not all past events are precedents.[7] Even when there is no precedent to guide a decision, the notion of precedent � awareness, that is, that what we do now may become a precedent � might still influence the decision-making process. The Supreme Court said that case which doesn�t have reasoning and issues cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141 of the Constitution.[8]

Experts/Juristic Definitions of Precedents

James P. Gray- Precedent covers everything said or done, which furnishes a rule for subsequent practice.[9] Jeremy Bentham - precedents are �Judge made Law.�[10] Robert Keeton - �A judicial precedent is judicial to which authority has in some measure has been attached.�[11] John Salmond - �Precedents a judicial decision which contains in itself a principle�[12] Ronald Dworkin � �Precedent is a rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.�[13]

Operative/Own definition of precedent

Precedents are an established source of law. They are sources which can be used in further cases with similar facts. They can be very effective in deciding cases of subsequent nature. There are many cases in which no established principles and rules are there, so when the case comes at that time only principles are decided these are also known as �hard cases� so these cases give space to new precedents. They are formed by judge.

Doctrines of precedents and stare decisis

The doctrine of precedent is a common law doctrine where judges are required to decide cases based on the judgment that has already decided by the courts placed higher in the hierarchy of courts. [14] The doctrine of stare decisis is a rule of self- discipline developed gradually by the common-law courts, where the judges seldom disturb what is already decided. So, all the lower courts in the country are bound by the decision of a higher court. Even the coordinate bench of the Supreme Court is bound by another coordinate bench of Supreme Court. Stare decisis is a principle of law that has been settled by a series of cases and should generally be followed by all other courts.

Article 141[15] of the Indian constitution says the SC decision is binding on all the courts if the case has similar facts and principles. Till 17th century there was no concept of stare decisis but in 1833 one case came into picture Mirehouse v. Rennell [16]in this case judge said that you should start recording the cases so that lower courts can take advantage. In Bengal Immunity Co. Ltd. v. the State of Bihar[17], it was aid that �expression of all courts' in article 141 does it means that SC is also included in all courts, no SC is not included it can deviate from its decisions.

The doctrines of precedents follows ancient decisions and extend them to existing practices. [18] The doctrine of precedents is not new to the country like India, wherein Dharmashastra it is established that whatever is written in our books and whatever the traditions and customs they should be followed unquestionably. By applying varieties of creative judicial techniques judges make the judicial precedent ineffective.

Precedents are neither modern legislation nor as old as customs. Between 1898 and 1966, the House of Lords were bound to their own previous decisions, making the law consistent due to rulings made in London Street Tramways v London County Council [1898][19]. In 1966, the Lord Chancellor issued a Practice Statement, stating, the rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law .

Even the house of lords is not bound to their precedents they can change their decision. When deciding cases, there is a test of subjective recklessness that is relied upon. This is where certain aspects of particular cases are taken into account.

For example in the case R v. Caldwell[20], the defendant was sacked from the hotel, in trauma he drank and set fire in the hotel intending to cause damage to the property but many customers were sleeping inside. So he was charged with endangering to human life and arson and he can�t take the defence of recklessness and no objective test.

On the other hand in the case of R v. G and another [21] two children one 11 years and another 12 years old were camping on the backside of a shop, they burnt some newspaper they left thinking that fire will go itself but fire spread and shop was burnt. The court stated them not guilty in this case court took the objective test as the damage happened, it was not intended and it was decided that their infancy should be taken into account.

So here precedents don't work as in first case court doesn't take objectivity test and in other case, it doesn't. Domestic precedents remain �binding� in a Convention context with a partial exception, and subsequent decisions have interpreted and applied this rule[22]

So, Stare decisis is the doctrine that obligates courts to look to precedent when making their decisions. [23]

Kinds of Precedents:
  1. Authoritative precedents:

    These are those precedents which are binding on all the courts. These precedents are binding on judges who interpret the law and whether they approve it or no, these are regarded as a source of law. For example decision of the Supreme court.

    Authoritative precedents are of two types:

    1. Absolute precedents:
      These precedents are binding there are no choices, judges have to follow it.
    2. Conditional precedents:
      these are not absolute if judges want they cannot follow them but in certain circumstances. But generally, they are binding.
  2. Persuasive precedents:

    They do not have any legal force or effect in themselves. They are not bound to follow if judges want they can use these as a reference and take into consideration while giving decisions. These precedents are of guiding character and only a historical source of law. Persuasive precedents can help to establish laws but giving some authority from the past.

    Decisions of one high court only act as a guide or persuasive as one HC decision is not binding on another HC decision so they may take reference from these decisions but there is no obligation that they have to state the same decision as given by previous HC. For example foreign judgments, authoritative textbooks etc.
  3. Original precedents:

    According to Salmond these precedents establish or create new law. It is evidence for the law of the future. An original precedent is made when there is no previous judicial decision on a point of law. When the court has to form an original precedent, a judge will come to their decision by analogy.
  4. Declaratory precedents:

    These precedents apply already existing rules. It is considered a good source of law.
Ratio Decidendi and Obiter Dictum
Ration Decidendi
Ratio means the reason or the essence of the decision. Decidendi means decision.

The doctrine of precedents works on ratio decidendi. Ratio decidendi is a legal rule derived from, and consistent with, those parts of legal reasoning within a judgment on which the outcome of the case depends. [24] There can be multiple ratio decidendi or multiple rationes decidendi produced by a single judicial decision. In it, we consider on what basis and principles judges gave a decision. To have a correct perception of the ratio decidendi of a case it is necessary to have a close look at the structure of the judgment itself. It is not everything said by a judge which has the force of a precedent. [25]

Obiter means something made or said by a judge in passing. Dictum means pronouncement, proclamation. If the court thinks that an issue does not arise, then any observation made concerning such an issue would be purely obiter dictum. [26]

The obiter only has persuasive value. It is just an observation if want can be considered, just an opinion. An obiter dictum is a remark or observation made by a judge that, although included in the body of the court�s opinion, does not form a necessary part of the court�s decision. Unlike the rationes decidendi, the obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law.

For example, if the court dismisses the case by saying that it is out of the jurisdiction, but if the court offers an opinion based on the merits of the case it will be just obiter dictum. In reaching decisions court sometimes quote passages of obiter dicta found in the texts of the opinions from prior cases, with or without acknowledging the quoted passage's status as obiter dicta.

If in a decision court gives two reasons then it is not like that you have to pick one and leave another and also you can�t give preference. A judge sometimes doesn't convince from some reasons cogency, so to give them the authority of precedent but also want to them to be included, so that they can act as guidance. This is a matter only the judge who is writing can only understand the literal meaning, that in what context the judge wrote this.

Donoghue v. Stevenson

The facts of the case are two ladies went to a restaurant where they ordered a ginger beer bottle with ice-cream float. After consuming half of the drink when they poured more beer, they found a decomposed snail. After seeing this snail Mrs Donoghue suffered severe shock and gastroenteritis. So the main question is what was the ratio and obiter in this case by the House of Lords.

The ratio, in this case, was the duty of care principle, and what was said by Lord Atkin manufacturer�s liability to the ultimate consumer for an injurious product in circumstances specified did owe a duty of care to the consumer. [27] he said that manufacturer owes a duty of care to the consumer and there was negligence on the part of the manufacturer.

Obiter of the case was neighbourhood principle they said that it may not only about manufacturer but there can be a lot of examples for people who owe a duty of care. For example in doctor and patient. So, �neighbourhood principle' which evolved was only persuasive not binding.

So in the ratio, you have to tell on what reasons you came to the decisions and while pronouncing that decision whatever comes in passing or opinions are just obiter.

The distinction between Precedent and Res Judicata

Res meaning is �the thing� (the subject of the matter) and judicata means judged so it means a subject matter which is already judged. Once a lawsuit is decided, the litigant parties are barred from raising the same issue again in the courts (unless material new evidence has become available). They are also barred from raising another issue arising from the same claim or transaction (or a series of claims or transactions) that could have been but was not raised in the decided suit. [28]

Types of Jurisdiction
Supreme Court has two types of jurisdiction:

  1. Appellate jurisdiction:
    In this jurisdiction, SC has the power to reverse the decision of the lower court or the lower bench. This jurisdiction can be invoked in certain circumstance and that also in the corrective stage. And SC has limited power.
  2. Inherent jurisdiction:
    In this SC is not limited in this jurisdiction it can change the view of the law in an earlier judgment. But the modifications will not affect the rights and liabilities of the parties, which was decided in previous judgment. After the judgment, the SC cannot modify the rights and liabilities of the parties adjudicated upon [29]. This is known as res judicata.
However, view of the law or ratio decidendi is still can be challenged as a precedent. Ratio decidendi serves the question of law what all substantial question has to be covered and does it cover any need of future. And how that substantial question of law developed as a case by case evaluation. But some precedents cannot be applied to all the cases known as like hard cases hard cases are those cases which don't have fix rule in law they change according to the situation of the society.

On the other hand, the ratio decidendi of a case is the principle of law which decided the dispute in the facts of the case and, therefore, the dispute can not be relied on in the facts of the case and, therefore, a decision cannot be relied on in support of a proposal which it did not decide.

Justification of Precedents
Mostly question arises on the justification of stare decisis in which later courts are bound to stand by the decision of the upper court. It is not the judiciary who have to make law but it is the legislator who makes law, judiciary's work is to only apply the law.

The question also arises that there are no legislative foundations of contract, torts etc. and in these decisions of courts are based on law. The modern legal system works on court. Civil wrongs are mainly based on five articles and the judges need to cite one of these articles in their judgments. If not then, this area is partly constituted by judge-made law. Before any question of overruling a precedent arises, the principle must be formulated, not from the opinion, not from headnotes, not from digests, not from textbooks, but the actual decision upon the material facts.[30]

In common law countries, it is required to follow the stare decisis of earlier courts even though they decided wrongly.

The doctrine of precedent thus raises two justificatory issues:
  1. Why treat court decisions as partly constituting the law?
  2. Why require later courts to follow flawed decisions of earlier courts? [31]

Arguments responding to these issues are based upon considerations of:
  1. Consistency:
    consistency we can talk about the fairness that if two cases have similar facts and still, you deviate from the earlier decision and give a different decision, so there can be a challenge that though there are similar facts then why different decision and there will be inconsistency. Also, we can't change the earlier decision as it is late so coming decision-makers must take an earlier the decision as precedent. If the decision is legitimate and courts have authority over the system then it will be impossible to treat one party less favourably.
    There are also exceptions to consistency suppose laws are changed and principles are different in society or that decision is overruled.

  2. Expectations:
    If similar facts case has been decided earlier then people have expectations that if similar facts will come before the court then the court will give the same decision and according to that parties will prepare their cases. And if the court gives a different decision then people will not believe in the legal system. So, it will be better for the court to give the same decision as given in the earlier case thought it was wrong.

    The problem with the precedent is that it suffers from a type of circularity [32]it is an only expectation that it will be followed in future but it creates no entitlement. It is good to follow previous decisions if there are good reasons to follow it.

  3. Replicability:
    it is important for decision-makers to interpret properly the facts of the case and understand the merits of the case. Replicability means that decisions are known beforehand then it will be like you are guided by law.

    Under certain conditions, lower courts should be permitted to depart from greater court choices where their opinion is those previous choices were morally unwanted. And this gives preference that lower courts can overrule the decision.

  4. Law-making:
    law-making power should be given in the hands of the judiciary as they may add some provisions which are required in the current society as they are the ones who deal with cases every day so they understand more than what is the requirements and what could be applicable in the present scenario.

    But the argument stays mainly on equality and replicability [33] that if there will be replicability then people are said to be guided by law and the law will be unpredictable and we will not apply the same principles and give the decision though it is wrong, which we applied in the previous case with similar facts then people will criticize, so widening law-making by the judiciary will help in reducing this conflict and we can give the correct decision.

Advantages of Precedents
  1. Justice, certainty, efficiency and predictability � It avoids uncertainty because no differing decisions will be there. Justice, fairness and some predictability will be there as we can be assured that like cases be treated alike. And also lawyers can advise their client properly.

  2. Flexibility � Society is changing and this should be reflected in our legal system. The apex court of any country can depart form their decision whenever they feel the need and this provides flexibility. As what seemed to be coherent with society.

  3. New precedent � As society changes according to that new law will be framed and new disputes will arise in the society and will come up with the new cases which will be heard for the first time, so their chances to set the principles and come up with the new precedent.

  4. Save time � Precedents save time because judges don't have to solve the same legal principle again. It can also reduce the crime rate in the country as people know what can be the consequences of this act.

  5. Fairness � If the case has similar facts and still no precedent is applied then the person will not feel fair. We need judges to follow judicial precedent because when the law is consistent, then it gives future victims a chance for protection. [34]

  6. Prevent mistakes � when mistakes are committed while giving decisions then people understand that court committed mistake and outcome should be different, when people have this picture in their mind it forces the judiciary to adapt correct method and give correct decisions.

Disadvantages of precedents

  1. Complexity and volume � Several thousand law reports and more being added. The internet is helpful but there is now a huge amount of case law online. Judgments can be very lengthy and sometimes the ratio is difficult to find.

  2. The slowness of growth - Some areas of law are unclear and need urgent reform and reform can only happen if a suitable case comes up before the courts. And also Supreme Court here fewer cases then trial courts of the country.

  3. Retrospective in effect � Laws are retrospective that supposes if the new law is made and you can be liable under the new law but when you committed a crime you were not liable under the old law. So, this problem can be faced by the judge as to when the precedent is made a particular act may or may not be a crime but now it is different from what it was. So, we can't apply the same principles.

  4. Uncertainty � Unless the final ruling is made in a case, the decision of any given case will remain undefined. Many judges want to deviate from the precedent because they find many flaws in it but they can't as it is set by the upper court.

  5. Forces system to look backwards instead of looking in future � what we have to look is that situation at that time when the precedent was established was different than today's world and that of future so why we prefer the rules and standards set at that time because they can't fulfil the guidelines of today.

  6. Judicial precedents can create more applicable decisions for a case than is necessary � If so, many sources are there, then judges, lawyers will likely to get confused as there will be no firm answers.

Precedents of High Court

As we all know that precedents of Supreme Court are binding on all other courts of the country but is it the same case with High Court.
High Court: Single bench, Division bench, and Full bench
  1. Decisions of High Courts are binding on all the lower courts, but the decision of one High Court is merely persuasive on another high court. Because the High Court have different jurisdiction.
  2. The decision of larger the bench is binding on the smaller bench of same High Court.
  3. Decisions of one High Court is persuasive
  4. Supreme Court decisions are binding under article 141[35].
  5. The decisions of the High Court is binding on the Tribunals under its superintendence throughout the territories concerning which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction.[36]

Challenges to precedents

Morality and principles changes according to time and society like in the U.S.A at some point of time slavery was established principle and also in India Sati an act in which the wife immolated herself after husband's death was considered to be quite courageous but afterwards due to its negative aspects it was banned in India. Why did this happen because at that point of time there were reasons to perform sati it was considered as the closure of the marriage and dutiful wife following her husband afterlife but as time passed it became a forceful practice and also society changed due to which sati was banned.

It is the same case in precedent when precedents establish and whatever principles are laid down that may be the best possible interpretation of the statue at that time and whatever the situation was there. if it is found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, not the established custom of the realm.[37]

We can follow precedents but they should not be strictly followed that we get a chance to interpret them only once, because these days are different from past days. But precedents also act as guidance as they give directions, that what to follow and what all rules can be applied if similar facts, they also save time but I think they sometimes take more time as we lawyers and judges have to find that why these rules, principles are applied what are the reasons behind this because there may be conflicting ideas in the mind of judges. But whatever the decision should be it should be coherent.

The Supreme Court in Parsaraja Manikyala Rao v. State of A.P.[38], held that each criminal case depends on its facts. Thus, one should avoid the temptation to decide cases by matching the facts of one case against the facts of the other. To render speedy and effective justice, it is required to avoid the tendency to refer to and rely upon precedents to arrive at findings of fact in criminal cases.[39]

The researcher wants to conclude that some or other way precedent is overruled because morality changes according to society, so courts have to change their interpretation according to what morality exist in society. precedents can be strictly binding and give too much weight to domestic precedents that are inconsistent with subsequent decisions precedents can be strictly binding and gives too much weight to domestic precedents that are inconsistent with subsequent decisions.

Precedents works on the doctrine of stare decisis, later judges have to stand by previous decisions in similar facts. And also, parties can't come to the court with the same issue according to the doctrine of res judicata. Many times, the court also has to state a decision against society's morality based on law.

It is not always good to adhere to the precedents, though there are similar facts because in that way the law can be predicted and parties can decide their side and court may not form new principles. Also, there are chances of wrongful conviction as what was a crime at that time, is not crime today. And if judges have conflicting ideas and later judge is not convinced by the reason gave by the earlier judges, still, he has to apply the same principles because precedents are binding.

As every coin has two sides, precedent saves time and they are effective and lawyers get proper time to guide their clients and make them understand their case and what do they have to speak in courts. Precedents are helpful when later judges are confused, they refer to the previous decisions with similar facts but still the same case if we will refer back the situation was different so there are both positive and negative sides.

  1. Donoghue v. Stevenson, [1932] UKHL 100
  2. A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 49.
  3. Justice Dr B S Chauhan, Law of Precedent, 2018, pg. 1.
  4., (Visited on September 7, 2019).
  5. Justice Nagendra Kumar Jain, Law of Precedents, 2018, p. 3.
  6. John Hanna, The Role of Precedent in Judicial Decision, Vol. 2, 1957, p. 6.
  7. Neil Duxbury, The nature and authority of precedents, 1st ed. 2008, p.
  8. Justice Dr B S Chauhan, Law of Precedent, 2018, p. 2.
  9. John Hanna , The Role of Precedent in Judicial Decision, Vol. 2 1957, p. 5
  10. Frederick N. Judson, A Modern View of the Law Reforms of Jeremy Bentham, Vol. 10, 1910, p. 41.
  11. Stephen Burton, Judging in Good Faith, Vol. 17, 1998, p. 204.
  12. Pradyumna K. Tripathi, Foreign Precedents and Constitutional Law, Vol. 57 1957, p. 320.
  13. Ronald Dworkin, Hard Cases, Vol. 88 1975, p. 1058.
  14. Supra note 2.
  15. Article 141, 38014.
  16. Mirehouse v. Rennell, 1 Cl & Fin 527.
  17. Bengal Immunity Co. Ltd. v. the State of Bihar, AIR 1953 Pat 87, 1953 (1) BLJR 48.
  18. A Lakshminath, Judicial process and precedent, 4th ed. 2016, p. 53.
  19. London Street Tramways v London County Council [1898], [1898] AC 375, [1898] UKHL 1.
  20. R v. Caldwell, 1 All ER 961
  21. R v. G and another, UKHL 50, [2004] 1 AC 1034.
  22. Shaun D Pattinson, The Human Rights Act and the Doctrine of Precedent, 2015, p. 11.
  23., (Visited on September 10, 2019).
  24. Black's Law Dictionary, 5th ed. 1979, p. 1135.
  25. A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 131.
  26. Ibid, p. 132.
  27. Ibid, p. 135.
  28., (Visited on September 8, 2019)
  29. A Lakshminath, Judicial Process and Precedent, 4th ed. 2016, p. 155.
  30. John Hanna, The Role of Precedent in Judicial Decision, Vol. 2, 1957, p. 6
  31., (Visited on September 15, 2019).
  32. Supra note 30
  33. Ibid.
  34., (Visited on September 21, 2019)
  35., (Visited on September 23, 2019)
  36. Ibid.
  37. Neil Duxbury, Nature of the precedents, 1st ed. 2008, p. 25
  38. Parsaraja Manikyala Rao v. State of A.P, AIR 2004 SC 132
  39. Justice Dr B S Chauhan, Law of Precedent, 2018, p. 15

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