Sources of Law

Precedents
 Ratio decidendi (plural rationes decidendi) is a Latin phrase meaning
the reason for the decision. Ratio decidendi refers to the legal,
moral, political and social principles on which a courts decision rests.

Ratio is a ruling on a point of law and the decision on a point of law

depends on facts of a case.
 Ration decidendi can be determined or identified in the following
ways:
By distinguishing material facts from unimportant facts.
By discovering the precedents applied to identify the courts
approach.
By restricting analysis to the majority opinions.
By reading out subsequent decisions and considering it at several
levels.
 Stare decisis translates to "let the decision stand". This means courts
considering a certain kind of case generally have to follow the rulings
in previous court cases. It also helps people know what to expect
when faced with certain legal issues. You can simply to look to
previous court decisions in order to find out how a court might rule in
your case.
Obiter dicta
Words of an opinion entirely unnecessary for the decision of the case.
A remark made or opinion expressed by a judge in a decision upon a
cause, "by the way", that is, incidentally or collaterally, and not
directly upon the question before the court or upon a point not
necessarily involved in the determination of the cause, or introduced
by way of illustration, or analogy or argument. Such are not binding
as precedent.
Minority Opinion
A minority opinion is an opinion by one or more judges in a legal case
who disagree with the decision reached by the majority.
A minority opinion is also termed dissenting opinion or dissent.
A dissenting opinion does not create binding precedent or become
part of case law.
They may have persuasive value.
Cont
The dissenting opinion may disagree with the majority for various
reasons such as: a different interpretation of the case law, use of
different principles, or a different interpretation of the facts. Dissents
are written at the same time as the majority opinion, and are
sometimes used to dispute the reasoning used by the majority.
Example
Additional District Magistrate of Jabalpur v. Shiv Kant Shukla,
popularly known as the Habeas Corpus case

Given the important nature of the case, a bench comprising the five
senior most judges consisting of A. N. Ray, P. N. Bhagwati, Y. V.
Chandrachud, M.H.Beg and Hans Raj Khanna was convened to hear it
Cont
While four judges agreed with the government view that even
fundamental rights like the right to life stood abrogated during
Emergency.
Khanna's dissenting opinion, claiming that the Constitution did
not permit right to life and liberty to be subject to executive decree,
is widely regarded as a landmark in Indian democracy
Cont
He wrote in his dissenting opinion: The Constitution and the laws of
India do not permit life and liberty to be at the mercy of the absolute
power of the Executive . . . . What is at stake is the rule of law. The
question is whether the law speaking through the authority of the
court shall be absolutely silenced and rendered mute... detention
without trial is an anathema to all those who love personal liberty
Judgment per Incurium
A decision is given per incuriam when the court has acted in
ignorance of a previous decision of its own or of a court of coordinate
jurisdiction which covered the case before it, in which case it must
decide which case to follow
Cont
Per incuriam is a Latin terms which means "through lack of care". A
court decision made per incuriam is one which ignores a
contradictory statute or binding authority, and is therefore wrongly
decided and of no force. A judgment that's found to have been
decided per incuriam does not then have to be followed as precedent
by a lower court.I
Reversal and Overruling
Reversed: where on appeal in the same case the
decision is reversed, the initial decision will
cease to have any effect
Overruled: where in a later case a higher court
decides that the first case was wrongly decided
Distinguished
Distinguished: where an earlier case is rejected
as authority, either because the material facts
differ or because the statement of law in the
previous case is too narrow to be properly
applied to the new set of facts
 a judge may seek to interpret an earlier decision
before applying it or distinguishing it, thus the
effect of the earlier case is varied in the
circumstances of the present case.
Question of Fact
A question of fact is a question as to what "happened" in a given legal
matter:

Was the defendant present at the scene of the crime?

Were the fingerprints lifted from the weapon untainted and belonged
to the defendant?
Did the defendant act in response to a reasonable belief that their life
was in danger by the victim of the crime?
Question of Law
A question of law is generally more of a procedural question:
Are there sufficient facts alleged by the plaintiff to support their case?
Were the defendant's Constitutional rights violated when the police
searched his house without a warrant?
Is the copy of the contract that the defendants want to admit an
authentic copy of the contract?
Is the witness that the plaintiff wants to present actually an expert in
their field?
 In law, a concurring opinion is a written opinion by one or more
judges of a court which agrees with the decision made by the
majority of the court, but states different (or additional) reasons as
the basis for his or her decision. When no absolute majority of the
court can agree on the basis for deciding the case, the decision of the
court may be contained in a number of concurring opinions, and the
concurring opinion joined by the greatest number of judges is
referred to as the plurality opinion.
 As a practical matter, concurring opinions are slightly less useful to
lawyers than majority opinions. Having failed to receive a majority of
the court's votes, concurring opinions are not binding precedent and
cannot be cited as such. But concurring opinions can sometimes be
cited as a form of persuasive precedent (assuming the point of law is
one on which there is no binding precedent already in effect). The
conflict in views between a majority opinion and a concurring opinion
can assist a lawyer in understanding the points of law articulated in
the majority opinion.
Distinguishing
Distinguishing
The process of cutting down the expressed ratio decidendi of a case
Example
The court accepts the earlier ratio decidendi of the earlier case and
does not seek to curtail it, but find that the case before it does not fall
within this ratio because of some material difference of fact.
Communis error facit jus
A precedent acquired added authority by lapse of time.
Circumstances when the precedent will not
remain binding
1. Abrogated decisions:
Statute or statutory rule inconsistent with it is subsequently enacted
or if it is reversed or overruled by higher court.
2. Judgment given in ignorance of the statute
Per incurium judgments
3. Sub-silentio judgment
A particular kind of decision on a point not argued
A particular point of law involved in the decision is not perceived by
the court or present to its mind.
Cont
4. inconsistency with the earlier decisions of the Higher Court
Advantages of precedent
1.flexibility to legal system to bring it to the tune of public opinion
2. The case law is more perfect as it is laid down in presence of actual
problem
3.Case law is more easier to understand
4. The objective of the statute will be known to people through
interpretation
5.The application of law after discussing all perspectives of the
problem before hand.
Cont
5. Brings certainty in law
6. Brings scientific development in law
7.Guides judges
Disadvantages
1. Possibility of overlooking the authority
2.Development of law depends upon the incidents of litigation
3.sometimes extremely erroneous judgment may become law
Custom as source of law
Customs come into existence due to necessity or convenience
Any particular conduct , imitated by a group of people for a long time
becomes a custom.
 Customs can be divided into two classes
1. Customs withut sanction
2. Customs with sanction
A. General Customs
B. Local
I geographical Local
Ii personal local customs.