By: Robin Pandey Date: 04/03/2022
Meaning and Nature of Precedent:
Judicial precedent is an important and independent source of law, is not as ancient as custom and as modern as legislation. In fact, the doctrine of judicial precedent is an unique feature of English law as also of the Common Law Countries. In England, judges played a significant role in developing the English law. During the middle ages when the Parliament had not assumed the status of sovereign law making body, it was left to the judges to define law and lay down legal principles. Thus, adjudication in England made a great contribution towards the formulation and development of English law. It is said that the English law is mostly a judge made law. This principle of law which was so common in England is not unknown in countries like USA, India, Australia, Canada and in many other Common law countries where the doctrine of judicial precedent has been followed. Thus, there is no doubt that legislation is the most important source of law in modern times, but at the same time precedent is equally important source of law from the standpoint of authority.
In the Continental countries like France, Germany and Italy, however, the system is different. There the judges look to legislation or will of the legislature for interpretation of law and are not bound to follow a previous decision of a higher court. In the Continental countries, previous decisions are only instructive but are not authoritative. They allow it no greater authority than that of a text book of law. A book of reports and a text book are on the same level. They are both evidence of law and they are both instruments for the persuasion of judges; but neither of them is anything more. English law, on the other hand, draws a sharp distinction between them. A judicial precedent speaks in England with authority. It is not merely evidence of law but a legal source of it and the courts are bound to follow the law that is so established.
Creative role of the Judges: Every developed legal system possesses a judicial organ. The main function of the judicial organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this adjudication the courts are guided by customs and their own sense of justice. As society progresses, leg1slationbecomes the main source of law and the judges decide cases according to it. Even at this stage the judges perform some creative function. In the cases of first impression, in the matters of interpretation, or in filling up any lacuna in the law made by legislation the judges, to some extent, depend on their own sense of right and wrong and in doing so, they adapt the law to the changed conditions. The decisions on such points become authority or guide tor the subsequent cases of a similar nature.
Authority of previous decisions: In almost all the legal systems, the judges take guidance from the previous decision 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 our own, lawyers acquire their knowledge of law more from the decisions of the higher tribunals than from anything else. Such decisions are published and compiled in Reports. These Reports are considered to be a very valuable part of legal literature. These decisions are very useful in deciding the subsequent cases of similar nature. They are called 'judicial precedents’ or precedent. As such, it is a very important source of law.
Meaning of Precedent: The word "Precedent' literally means an earlier event r action that is regarded as an example or guide to be considered in subsequent or similar circumstances. In Oxford Dictionary "Precedent" has been defined as "a previous instance or case which is, or may be taken as an example or rule for Subsequent cases or by which some similar acts or circumstances may be supported or justified." In simple words, precedent in law means a judgment of a Court which is cited by the parties to a different but similar factual situation.
In common parlance, ‘Precedent' means something said or done that may Serve to authorise or justify further acts of the same or a similar kind. According to Keeton, a judicial precedent is a judicial decision to which authority has, in some measure, been attached. In the words of Gray, 'a precedent covers everything Said or done which furnished a rule for subsequent practice. According to Jenks, Judicial precedent, in a decision by a competent court of justice upon a disputed in the of law, becomes not merely a guide but an authority to be followed by all courts of inferior jurisdiction administering the same system until it has been overruled by superior court of justice or by a statute e.g., the Act of Parliament. In short we can say precedent means the guidance or authority of past decisions for short, we future cases.
Nature of Judicial Precedent: Original precedent possess a distinct and legally recognised law creating power. This power is purely constitutive and never abrogative. A judicial precedent can create law but cannot alter/abolish it. Salmond says "its operation, except in a very imperfect and indirect manner, is irreversible." The Judges are not at liberty to substitute their own views where there is a settled principle of law. They can only fill in the gaps in the legal system and remove imperfections in the existing law.
The statement that precedents are constitutive and not abrogative is subject to two qualifications. First, the court has the power to overrule or disregard a precedent. Overruling is done by a court of superior jurisdiction. When once a precedent is overruled, it loses all its authority. It becomes null and void. This Overrule does not abolish an established rule but denies authoritatively the existence of such rule at any period of time. The overruling of a precedent has a retrospective effect. Secondly, the statement precedents are constitutive, not abrogative', is subject to the rule that when once an absolutely authoritative precedent has been established even though conflicting with any pre-existing aw, it will not lose its authority on the ground of being contrary to law. It is a well Known maxim of law that a thing which ought not to have been done may nevertheless be valid when it is done.
Process of judicial decision: It may be either deductive or inductive. Deductive method is associated with codified system of law. It assumes that the legal rule applicable to any particular case is fixed and certain and the Judge is required to apply this rule as justice according to the law without any reference to his personal view. This implies that Judge's decision is deduced directly from general to particular in circumstances of the case before him.
Inductive method which is a characteristic of English law, on the other hand starts with the same primary object of finding the general principle applicable to the particular case, but it does not conceive the rule as being applicable directly by simple method of deduction. It rather moves from particular to general. The method involves reasoning inductively and in the process, the Judge is bound by the decision of the courts higher than his own Court. Thus it would be seen that deductive method of judicial law making pre- supposes law as static whereas in actuality judicial decisions may change the law by over-ruling precedents or by announcing new legal norms. It is for this reason, it is said that "deductive method may explain legal stability but it cannot account for legal change." In State of Haryana v. Ranbir, (2006), the Supreme Court observed that a decision is an authority for which it decides and not what can logically be deducted there from.