Precedents as the source of law: Theory and Scope

Precedents as the source of law
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Law is the directing rule in any system which defines the discipline and conduct of any sphere. For any country, its laws are the source of the command. They being a source of command are sourced from various origins.  ‘Sources of law’ has been interpreted by many legal academicians. They are deeply dealt with in the study of jurisprudence. The law is derived from two types of sources- formal and material. Sir John Salmond’s intensive elaboration of the same provided the conception of legal sources under the material sources of law. These legal sources included- Legislation, Custom, Precedents , Agreement. This article precisely focuses on the theory of precedents and some of the related concepts.

What are Precedents?

Precedent in its literal terms means of its previous time. Precedent in context to law is defined as a judicial law case that has established its authority to direct the decision of the court in cases of similar nature.

The doctrine of precedent evolved to its form from the concept of ‘stare decisis’. The terms, Stare Decisis and precedents are commonly exchanged and confused in day to day use. Stare Decisis is the concept that says that the courts are obligated to follow their past decisions made by them as the guiding principles. This referred term of ‘past decisions’ is precedent.

There exist many legal definitions of the ‘precedent’. Out of many, one of the popular definitions was given by Sir Robert E. Keeton narrates-

“Judicial precedent is a judicial decision to which authority has in some measure been attached.”

Types of Precedents

Primarily precedents are categorized into two types- Persuasive and authoritative. Precedents are one of the most cited references in any advocate’s argument. It is common practice to give a referral of any previous judgement and sway the decision of the court in favour. This necessitates the determination of the scope of the precedents. The binding nature of the precedents used is scaled upon their binding nature. Based on the same, precedents can be either of persuasive or absolute nature. There area plethora of categorizations for the precedents. Significantly, the influential power of the precedents is what is of more consideration.

Authoritative Precedents

These precedents are those past decisions that have absolute power of direction. They have an unbreakable binding upon the decision making authority. However, the rigid nature of this type of precedent bifurcated it into two types- absolute and conditional. Absolute precedents as suggested by their name has to be applied by all means. Conditional precedents under the authoritative allow judges to apply the material facts of the case or circumstances. It allows the neutralization of some aspects.

Persuasive Precedents

These precedents are those past decisions that only have persuasive value. These past decisions do not have obligatory powers. They usually intend to persuade the decision making authority by mentioning any past decision of the same nature.

Sources of precedents

Rulings by courts of vertical hierarchy

The judgements made by higher courts are absolute precedents. They have authoritative nature against the lower courts. Article 141 of the Constitution of India says that Law declared by Supreme Court to be binding on all courts within the territory of India.

Rulings by courts of horizontal hierarchy.

The judgements or rulings made by the courts of the horizontal hierarchy are persuasive precedents. In India, the rulings by one high court are actively used as persuasive precedents in other high courts. The cases of the Supreme Court may be binding. They can be revised in the same by the larger bench. In many instances, the landmark judgements which have been precedents in several cases, have been overruled by the larger bench. For instance, in the landmark Sabrimala case, the verdict was given by a five-judge bench. When the ambit of the case got widened it was put behind the nine-judge bench.

It is rightly said that Judicial judgement must take deep account…of the day before yesterday inorder that yesterday may not paralyze today. The application of Precedents is contested and hotly debated. Precedents are themselves derived by the application of the law. Some legal pundits contemplated fact fully that the case law is based on law, and the product of law cannot be a law. As discussed above, the notable impact of precedents some advantages and disadvantages of the doctrine of precedent have been discussed below.

Advantage of Precedents as the source of law

  • The precedents are the direct illustrations of society’s happenings. They provide easier interpretations of the laws as made in the previous observations. This directly brings uniformity in the action of the courts in cases of similar nature.
  • Legislation is the imposing source of law. Precedents are the applied version of the law with more direct and practical observation.
  • Statute laws are deemed complex. Case laws in the form of precedents connect the laws to the common man by connecting to their life. Precedents are considered more vivid and of increased educative value.

Disadvantagesof precedents as the source of law

  • The natural justice of the system is based on the exemplary nature of laws. Law should have directional value and should be known. Precedents are ex post facto. This temporal difference is usually criticized.
  • Also, the case laws are exhaustive and voluminous. The needle-like value of the precedents is to be found from the haystack of facts and observations.
  • Precedents are majorly derived from case laws. Very frequently, they get overruled or are amended based on new findings or observations. The source of law as precedents is not regarded as a stable source.

The doctrine of prospective ruling

The doctrine of prospective ruling was one of the important doctrines that controlled the exorbitant powers of precedents. The doctrine said that the overruling effect of the precedents will not be retrospective. They will be operative only in future. The application of this doctrine was first time observed in the landmark case of Golaknath vs. State of Punjab.

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