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JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior courts,
such as the High Courts and the Supreme Court, which judges are bound to follow. This binding
character of the previously decided cases is important, considering the hierarchy of the courts
established by the legal systems of a particular country. Judicial precedent is an important source
of law, but it is neither as modern as legislation nor is it as old as custom. It is an important
feature of the English legal system as well as of other common law countries which follow the
English legal system. In most of the developed legal systems, judiciary is considered to be an
important organ of the State. In modern societies, rights are generally conferred on the citizens
by legislation and the main function of the judiciary is to adjudicate upon these rights. The
judges decide those matters on the basis of the legislations and prevailing custom but while
doing so, they also play a creative role by interpreting the law. By this exercise, they lay down
new principles and rules which are generally binding on lower courts within a legal system. It is
important to understand the extent to which the courts are guided by precedents. It is equally
important to understand what really constitutes the judicial decision in a case and which part of
the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):

Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means
reasons for the decision. It is considered as the general principle which is deduced by the courts
from the facts of a particular case. It becomes generally binding on the lower courts in future
cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the
judge and do not have any binding authority. However, obiter of a higher judiciary is given due
consideration by lower courts and has persuasive value.

1. Precedent
Precedent is meant by anything said or done which is quoted and cited as authority for
subsequent conduct. Precedent is created by judicial decision pronounced by courts which may
be given either by a superior or a subordinate Court. A judicial decision is a precedent when is
creates a new rule; otherwise it is a judgment as between the parties.

2. Nature of Precedent
A precedent is purely constitutive and in no degree abrogation. 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
the judges to follow the same. They cannot substitute their opinions for the established rule of
law.
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Precedent occupies in important position on English Law. Much of the English law has been
created by the Judges. It is only in the British legal system that precedent is recognized as of
binding authority if before the time of James. Precedents were cited merely indicating true law.

. Binding force of Precedent

Precedent has binding force because:-
 Administration of Justice has been concentrated in the hands of judges.
 The judges as a body of legal experts can properly law down the law for the bar.
 When a case is decided, it is presumed that the decision is correct. A point once decided
between the parties become a re judicta and cannot again be litigated upon, even if a decision be
incorrect.
 The rule that the law as previously laid down must be followed induces confidence in the
minds of the litigants.
 Administration of justice becomes even handed and fair for a rule already laid down is
followed in all subsequent cases.

4. Classification of Precedent
Precedents may be classified into three divisions; (i) according to the nature of the rule laid
down, (ii) according to the influence exercised by them on the course of future decisions, and
(iii) according to the nature of the authority. Those under (i) may be described as declaratory and
original precedents, those under (ii) as authoritative and persuasive precedents, and those under
(iii) as precedents of absolute authority and of condition authority. A seriatim description of
these forms is given below;

a. Declaratory and Original Precedents

i. Declaratory precedents
Declaratory precedents are those which do not lay down a new rule of law but only declare a
principle of law already existing. When the law is already sufficiently well evidence, as when it
is embodied in a statute or set forth with fullness and clearness is some comparatively modern
case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our
case law. Such precedents merely declare the law.

ii. Original Precedents

Original precedents are those which lay down a new rule of law. These are the outcome of the
internal exercise by the courts of their privilege of developing the law while sitting to administer
it. Such precedents make the law.

b. Authoritative and persuasive precedents

i. Authoritative precedents
Authoritative precedents are those which must be followed whether the Judge deems the
principle laid down as correct or not. Thus, the decisions of the High Court are authoritative
precedents for the subordinate Courts and the decisions of the Supreme Court are authoritative
precedents for the High Courts and all other subordinate Courts.
ii. Persuasive precedents
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Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of
Indian high courts and the Supreme Court of India or of other Foreign Courts are merely
persuasive precedents for the Courts in Pakistan.

c. Precedent of absolute authority and of conditional authority

i. Precedents of absolute authority
Precedents of absolute authority are those which are absolutely binding, however, unreasonable
or erroneous they may appear to be. In this sense also the precedents of superior Courts are
precedents of absolute authority for the inferior or subordinate courts. Similarly, a decision of the
Full Bench is binding on a Bench consisting of two or more judges of the same and subordinate
courts.

ii. Precedents of conditional authority

Precedents of conditional authority are those which are binding but not absolutely. Thus, a
decision of a single judge of the High Court is only a conditional authoritative precedent for a
Judge of the same or another High Court.
Advantages and Disadvantages of Judicial Precedent
The Advantages of Judicial Precedent

1. Continuity
Precedent means following the example or ruling set by a court when judging a similar case. In
theory this should provide a solid foundation for judges to base a future ruling off, provided the
line of reasoning and conclusions reached follow the established precedent.
2. Clarity
The application of well known precedents also makes it easy for other actors in society to
understand and conform to the law. If judicial rulings and punishments follow an established
rule, it cuts down on the appearance of favoritism or unfair persecution under the law that can
arise as a result of different outcomes to similar cases.
3. Stability
Jurisdictions that apply common law are some of the oldest continuously operating judicial
systems in existence. This is in no small part a result of the continued application of precedent
over time. If citizens or actors in a society are clear about what the rules are and outcomes when
they are violated, it has been shown to support better governance and economic performance.
legal development
advantage of precedent:
having precedent facilitates the development of a coherent body of legal principles that can be
used in the future
not arbitrary
advantage of precedent:
courts have to use reason and logic in applying the law, and so that their decisions are not merely
arbitrary

Note: disagree. The whole common law principle, especially judicial activism, seems much more
arbitrary than codified law.
fairness
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advantage of precedent:
court decisions (and therefore precedents) are freely available to everyone to read and
understand, and so this is transparent and fair
flexibility
advantage of precedent:
court have some degree of flexibility in implementing and interpreting precedents
certainty
advantage of precedent:
lawyers have to advise their clients on the law, and if there is a precedent the lawyer knows will
be followed by the courts, then the lawyer is able to advise the client with some degree of
certainty as to what the law is, and what the result would be if the matter went to court

Note: disagree. Precedent has nothing to do with certainty. It's an arbitrary decision to begin
with. Civil law / codified law has what I would call 'certainty'
also "if.... the lawyer knows" is very uncertain - whether or not a lawyer knows a precedent or
relevant decision is nothing the client can influence. Relevant decisions, particularly from other
jurisdictions or overseas, are not necessarily easy to find (though other country or jurisdiction
would not be precedent, that would never be more than persuasive)
efficiency
advantage of precedent:
where both parties to a dispute are relatively certain about the law on point in their case, they can
realistically and efficiently negotiate to settle their dispute by weighing up what they are likely to
get if they went to court.
injustice
disadvantage of precedent:
every case is different, and so it is unjust to simply apply the same reasoning as in a past case.
This injustice is difficult to fix because only a superior court, faced with a case that raises the
unjust precedent, can overrule the precedent
manipulation
disadvantage of precedent:
judges who hear the same type of cases can have a disproportionate role in the development of
an area of law.
Judges may manipulate precedents in order to achieve the outcome they consider appropriate in
the circumstances of the case. The process is not a black and white and value-free as it may seem
on its face
uncertainty
disadvantage of precedent:
it can be difficult to work out what the applicable precedent is from any given case, and how
generally the principle from the case can be stated. We just don't know how a case is going to be
treated until it is used in the future case.
multiple judgments
disadvantage of precedent:
in cases heard before more than be judge, those judges may issue a single judgment together or
they may issue one each.
If their judgments show different lines of reasoning to arrive at the same outcome, what then is
the precedent from the case?
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Disadvantages of Judicial Precedent

1. Constrains Judicial Decisions

One of the primary responsibilities of a judge is to use their discretion when applying the law. By
forcing independent judges to follow a strict precent, it forces them in some cases to apply a
harsher or lesser penalty than they otherwise feel is deserved. While many will point to this lack
of ambiguity as an advantage, the constraint it places on judges when interpreting the law can
also be a disadvantage at times.
2. Enshrines Bad Decisions
The appeals process exists because the system allows for the possibility that judges and juries
can err in their application of the law. A flawed decision can be reversed on appeal but when a
decision automatically becomes precedent that can be followed in future cases, it can perpetuate
bad law and potentially undermine the judicial system.
3. Inflexible
Some aspect of the law are immutable however others rules and regulations change over time.
While judicial precedent does protect the enduring principles upon which the most important
rulings are based, it can also limit the ability of the law to adapt to new developments in society.

The ratio dicidendi means the reason for the decision. It literally means the main reason why
judge has come to the decision. It would be the rule of law that governs the decision and, it is a
general statement that does not involve particular details in each case. It is set for the precedent
to apply in the future case decision. As an example of the ratio, in the case Donoghue v.
Stevenson (1932), a client became ill after drinking spoiled ginger beer which was a dead snail in
and sued the manufacturer, the ratio decidendi is to be the part that read ‘a person owes a duty of
care to those who he can reasonably foresee will be affected by his actions. The ratio of
Donoghue v. Stevenson (1932) subsequently brought major development to the law of
negligence.

The statements outside the ratio dicidendi are called the Obiter Dicta. As its meaning, the Obiter
Dicta does not state the primary reasoning of the decision, therefore it is not binding for the
future decisions. Although it is not a part of the precedent, some of the Obiter Dicta can be
referred in the future case to make the certain view to the law more persuasive. In the case of
Carlill v Carbolic Smoke Ball Co Ltd (1892), the obiter dicta would be ‘If I advertise to the
world that my dog is lost, and that anybody who brings the dog to a particular place will be paid
some money, are all the police or other persons whose business it is to find lost dogs to be
expected to sit down and write me a note saying that they have accepted my proposal? Why, of
course, they at once look [for] the dog, and as soon as they find the dog they have performed the
condition.’ [1] The judge added this part to assist his view on the decision.

There are three different types of precedent.

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The original precedent is referred to the initial, new precedent to be set as there is no previous
decision the judge to follow until that point of time. It means that there will be new set of the
ratio decidendi to follow in the similar future cases. Normally, as there was no earlier decision to
follow, the judge would give the reason by analogy. However, judges would try to look for the
nearest cases to consult. As an example of an original precedent, there is a famous case
Donoghue v. Stevenson (1932) which brought major development on negligence law. Although
there was a concept of a duty of care within particular circumstances, generally between
contractors, this case widened its application and the point of law as Lord Atkins made the
precedent as known as the neighbor principle.

The binding precedent refers where the present case has to follow the previous decision when
there is a sufficient similarity of the facts in the later case and the previous decision was from the
higher positioned court or the court in the same level. In other words, the inferior court is bound
to follow the superior courts’ decision when dealing with similar case.

The persuasive precedent is more flexible on its sources. Although it is not binding to the court
hierarchy, judges are able to use precedent if they find it necessary for the case or sufficient
reasoning. Not only it is opened to use the obiter dicta, it is also opened to the precedents made
by lower courts. This was illustrated in the case of R v Gotts (1992), the court of Appeal
followed the obiter dicta of R V Howe (1987) case as a persuasive precedent on deciding the
non-availability of duress as to a charge of attempted murder. In addition, a dissenting judgment
which means a judgment of disapproval of the majority and the decisions made in other countries
can also be used as persuasive precedent. This can be founded in the case of McLoughin v
O’Brian (1983) which was about nervous shock in negligence.

1. Precedent
Precedent is meant by anything said or done which is quoted and cited as authority for
subsequent conduct. Precedent is created by judicial decision pronounced by courts which may
be given either by a superior or a subordinate Court. A judicial decision is a precedent when is
creates a new rule; otherwise it is a judgment as between the parties.

2. Nature of Precedent
A precedent is purely constitutive and in no degree abrogation. 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
the judges to follow the same. They cannot substitute their opinions for the established rule of
law.
Precedent occupies in important position on English Law. Much of the English law has been
created by the Judges. It is only in the British legal system that precedent is recognized as of
binding authority if before the time of James. Precedents were cited merely indicating true law.

3. Binding force of Precedent

Precedent has binding force because:-
 Administration of Justice has been concentrated in the hands of judges.
 The judges as a body of legal experts can properly law down the law for the bar.
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 When a case is decided, it is presumed that the decision is correct. A point once decided
between the parties become a re judicta and cannot again be litigated upon, even if a decision be
incorrect.
 The rule that the law as previously laid down must be followed induces confidence in the
minds of the litigants.
 Administration of justice becomes even handed and fair for a rule already laid down is
followed in all subsequent cases.

4. Classification of Precedent
Precedents may be classified into three divisions; (i) according to the nature of the rule laid
down, (ii) according to the influence exercised by them on the course of future decisions, and
(iii) according to the nature of the authority. Those under (i) may be described as declaratory and
original precedents, those under (ii) as authoritative and persuasive precedents, and those under
(iii) as precedents of absolute authority and of condition authority. A seriatim description of
these forms is given below;

a. Declaratory and Original Precedents

i. Declaratory precedents
Declaratory precedents are those which do not lay down a new rule of law but only declare a
principle of law already existing. When the law is already sufficiently well evidence, as when it
is embodied in a statute or set forth with fullness and clearness is some comparatively modern
case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our
case law. Such precedents merely declare the law.

ii. Original Precedents

Original precedents are those which lay down a new rule of law. These are the outcome of the
internal exercise by the courts of their privilege of developing the law while sitting to administer
it. Such precedents make the law.

b. Authoritative and persuasive precedents

i. Authoritative precedents
Authoritative precedents are those which must be followed whether the Judge deems the
principle laid down as correct or not. Thus, the decisions of the High Court are authoritative
precedents for the subordinate Courts and the decisions of the Supreme Court are authoritative
precedents for the High Courts and all other subordinate Courts.
ii. Persuasive precedents
Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of
Indian high courts and the Supreme Court of India or of other Foreign Courts are merely
persuasive precedents for the Courts in Pakistan.

c. Precedent of absolute authority and of conditional authority

i. Precedents of absolute authority
Precedents of absolute authority are those which are absolutely binding, however, unreasonable
or erroneous they may appear to be. In this sense also the precedents of superior Courts are
precedents of absolute authority for the inferior or subordinate courts. Similarly, a decision of the
8|Page

Full Bench is binding on a Bench consisting of two or more judges of the same and subordinate
courts.

ii. Precedents of conditional authority

Precedents of conditional authority are those which are binding but not absolutely. Thus, a
decision of a single judge of the High Court is only a conditional authoritative precedent for a
Judge of the same or another High Court.