Theoretical overview
Judicial Precedent means the process whereby judges follow the decided cases. The doctrine of judicial precedent involves use of the doctrine of stare decisis, to stand by the decision.
In practice, this means that lower courts are bound to apply the legal values set down by higher courts in earlier cases.
This provides uniformity of law. This is known as the Judicial 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.’
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, apply them to the cases before them and decide accordingly. This is known as the Inductive method.
In the deductive method, there is a great reliance placed on legislatures and enacted statutes. In such a system, the cases are decided on the basis the enacted legislature and statute 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.
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.
Types of precedents:
Persuasive 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.
Binding Precedent
In law, a binding precedent (also mandatory precedent or binding authority) is a precedent that 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. 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.
Absolutely authoritative
In these cases, the verdict that has been earlier must mandatorily be followed by the judge. Even if the judge thinks that it is a wrong judgement they are required to follow that precedent because of sheer numbers. This is usually seen in cases where the bench is smaller than the bench that decided upon the precedent that the judge is relying on. This is also possible in cases of hierarchy, where certain courts have to rely on decisions made by superior courts.
Conditionally authoritative
In this case, the precedents by a general rule are considered authoritative but can be disregarded in cases of the parties appearing before the Supreme Court. The decision can also be overturned. An example can be where we considered that the power to amend the constitution was complete till it was decided that limits must be placed on the same and that all laws in the Ninth Schedule, henceforth must also be tested against the basic structure.
Stare Decisis
Stare decisis 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.
Points to remember:
- 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
- precedent covers everything said or done, which furnishes a rule for subsequent practice.
- In the inductive method, there is a great reliance placed upon the decisions of the judges
- In the deductive method, there is a great reliance placed on legislatures and enacted statutes. In such a system, the cases are decided on the basis the enacted legislature and statute that are codified and the judges decide cases on the basis of these codes and not on the basis of previously decided cases
- Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions
