Precedent as source of law

Precedent as source of law

Introduction;

Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries, particularly in England and other countries which are influenced by English Jurisprudence.

Salmond quoted in his book; “…..”;

“The great body of the common or unwritten law is almost entirely the product of decided cases, accumulated in an immense series of reports… orthodox legal theory, indeed, long professed to regard the common law as customary law, and judicial decisions as merely evidence of custom and of the law derived therefrom…but in practice, the common law in England has been created by the decisions of English Judges”.

These decisions given were given highest respects in society and later on followed as an examples or precedents. Neither Roman law, nor any other system allows any such place or respect to precedents, and in English system they considered both, i.e. as an evidence of law and as source of law which courts are bound to follow.

Meanings;

Black’s Law Dictionary;

An adjudged case or decision of a court of justice, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law.

Precedent as source of law;

There are some writers who are of the view that judicial precedents are not a source of law. But Keeton rejects this view and holds that a judicial precedent is a source of law. To quote him; “A judicial precedent is a judicial decision to which authority has in some measure been attached. It must be noted at once, however, that party because of high status which judges occupy in political and social organization and partly because of the importance of the issues which they decide, judicial decisions have at all times enjoyed high authority as indications of the law”.

Nature of precedent;

A precedent is purely constitutive in nature and in no degree abrogative. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of courts to follow the same.

PLD 2016 Peshawar114

“Legislation of law was the domain and prerogative of the Legislature… Function of the judiciary was not to legislate or question the wisdom of Legislature in making a particular law”.

2016 CLD Lahore 1

“Courts are not empowered to legislate, and their function is to interpret legislation…Right which has not been provided in statute by legislature cannot be incorporated by courts by adopting role of legislature”.

Authority of Precedent;

English system provides following reasons for binding authority of precedent;

1.      Justice is administered by a body of judges

2.      Judges are legal experts to lay down a rule of law

3.      Case once decided is presumed to be correct.

4.      Following a precedent induces confidence in the minds of the litigants.

5.      Due to precedents, administration of justice becomes even handed and fair.

6.      The law becomes known and fair and not liable to have varying interpretations or applications.

Classifications of precedents;

Precedents may be classified into following categories;

1.      Declaratory and original precedents

A declaratory precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. In the former case the rule is applied because it is already law; in the latter case it is law for the future because it is now applied.

Original precedents, however, though fewer in number, are greater in importance. For they alone develop the law; the others leave it as it was and their only use is to serve as good evidence of it for the future.

It must be understood, however, that a declaratory precedent is just as truly a source of law as is one belonging to the other class. Because the authority and legal validity of a precedent do not depend on whether it is, or is not, an accurate statement of previously existing law.

2.      Authoritative and persuasive precedents

These two differ in respect of the kind of influence which they exercise upon the future course of the administration of justice.

An authoritative precedent is one which judges must follow whether they approve of it or not. It is binding upon them and excludes their judicial discretion for the future. A persuasive precedent is one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach such weight as it seems to them to deserve. It depends for its influence upon its own merits, not upon any legal claim which it has to recognition. In other words, authoritative precedents are legal sources of law, while persuasive precedents are merely historical.

3.      The Absolute and Conditional Authority of Precedents.

Authoritative precedents are of two kinds, for their authority is either absolute or conditional. In the former case the decision is absolutely binding and must be followed without question, however unreasonable or erroneous it may be considered to be. It has a legal claim to implicit and unquestioning obedience. Where, on the other hand, a precedent possesses merely conditional authority, the courts possess a certain limited power of disregarding it.

In all ordinary cases it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the sound administration of justice.

Circumstances attaching weight to precedents;

The circumstances which tend to increase the authority of precedents are;

1.      Unanimity of the court giving the decision.

2.      Affirmation or approval by the courts

3.      Eminence of the judge giving the decision

4.      Absence of criticism by the profession

5.      Learned arguments, consultations of judges.

Circumstances lessening the authority of precedents;

These may be summed up as follows;

1.      Failure to notice contrary decisions

2.      Being mislead by reliance on a case of no authority

3.      Absence of independent judgment

4.      Decision based on compromise

5.      Judgment without arguments

6.      Decision without reasoning

7.      Decision being doubted and criticized

8.      Result would be unjust and embarrassing  

Terms dealing with precedents;

Stare decisis;

2017 PTD 2029

Doctrine of "stare decisis" meant to abide by or adhere to decided cases and it was a doctrine under which a deliberate or solemn decision of court was made after argument on question of law fairly arising in the case and necessary to its determination, which became an authority or binding precedent in the same court or in other courts of equal or lower rank in subsequent cases where such point was again in controversy.

2012 YLR 2809

Stare decisis, means to stand by a decision and not to disturb the undisturbed.

Ratio decidendi;

2017 PTD 2029

Expression "ratio decidendi" was the ground or reason of a decision, the point in a case which determined the judgment… In a controversy raising a dispute inter parties, things adjudged were conclusion between parties both on questions of law and fact but as to what the Court decided generally was the "ratio decidendi " or "rule of law" for which the same was an authority

2007 PTD 181

Ratio decidendi of a case makes the decision a binding precedent for the future…

Ground of a decision is the material fact of the case, so that if a similar or comparable set of facts come before the Court again, and the new case is on "all fours" with an earlier case, the Court will follow and apply the decision given in the earlier case.

2006 PLC 656

Ratio decidendi is the reason or ground of a judicial decision; it is the ratio decidendi which makes a decision a precedent for future.

Obiter dicta;

2012 CLD 218

“According to Black’s Law Dictionary, obiter dicta means, words of an opinion, which are entirely unnecessary for the decision of the case and includes remarks made or opinion expressed in his decision by the way that is incidentally or collaterally and not directly upon the question before him or upon a point not necessarily involved in the determination of the case. It has been further provided that such expressions are not as precedents.”

As a source of law, obiter dicta have the force of persuasive precedents only. The judges are not bound to follow them. But according to the view of Supreme Court of Pakistan, obiter dicta of judgment of Supreme Court is binding in nature and have force of precedent. See 2005 YLR 388.

Further see; 2000 SCMR 814

For difference between Obiter dictum and ration decindendi  See PLD 2004 SC 600