The English Common Law, also known as unwritten law, has been preserved in the form decisions by superior courts since the end of the thirteenth-century. Law Reports contain this body of case-law and it has been passed down to the present day. These decisions were previously made by Royal Judges who exercised the prerogative of King and Queen. The Judges were always jurists of unqualified knowledge and repute and have been treated with the utmost respect. They were also assumed to be correct without fail. In that sense, they were later followed as an example or precedent. We will now discuss in detail the meaning of precedent as follows.
- Precedent Meaning:
- Merriam Webster Dictionary
- Precedent means:
“Something has been done or said that will serve as an example or rule to justify or authorize a subsequent act or similar one.”
Stare decisis:
The principle of stare decisis, which is to follow authorities and cases that have been adjudicated upon, forms the binding authority of judicial precedences. Only the British legal system can give binding authority to the precedent.
The stare decisis rule states that a principle of law is binding upon the courts if it has been settled through a series of decisions. It should be applied in similar cases.
This rule is based upon expediency and public policy. This rule is generally followed by courts but it is not always applicable. If a court is certain that a previous decision is incorrect, it should not be allowed that the wrong continues.
Authority of Precedents
The following are reasons why the English system has given binding authority for judicial precedents:
1). A body of judges administers justice.
2). As legal experts, the Judges are well-suited to set the law for Bar.
3). 3).
4). Confidence is instilled in litigants by the rule that the law must be applied as in previous cases.
5). The administration of justice is ‘even-handed’ and fair because there is a rule that applies to this point.
6). 6).
Obiter dicta:
The court will say everything, which are statements of law that go beyond the specific case and set out a rule that is either irrelevant or not necessary for the case’s decision, called obiterdicta.
In a nutshell, obiterdicta is a discussion of points that are not directly related to a case. These remarks, when made in court by superior courts are binding for the subordinate courts.
They serve as persuasive precedents for the same court. These dicta are not persuasive precedents. They are not binding on the Judges. They may receive benefits or guidelines from them, but they are not required to follow them.
Obiter dicta helps in the growth and development of law. Sometimes they can help reform the law. Judges must be familiar with the law. Their observations will have a significant impact on the government.
In the obiterdicta, you can point out the flaws in the legal system. Although Judges are not required to comment on specific points unless they are directly relevant to the issue at hand, if they feel they have to do so, the public should be grateful for their affection.
Ratio Decidendi:
Salmond says, “A precedent is a judicial ruling that contains in itself a principle.” The ratio decidendi is the underlying principle that forms its authoritative element. While the concrete decision is binding for the parties, the abstract ratio decidendi has all the legal force in the larger world.
Rupert Cross states that ratio decidendi can be a rule or law impliedly or explicitly used by the Judge to aid in his conclusion.
Classification of Precedents
Three divisions can be made from precedents:
i). Based on the nature of the rule, such as original precedents and Declaratory.
ii). Based on their influence on future decisions, such as Authoritative or persuasive precedents.
iii). Based on the nature of their authority, such as Precedents for absolute authority or conditional authority.
Original and declaratory precedents
Declaratory precedents do not establish a new rule of law, but rather declare an existing principle of law. These precedents do not establish the law.
Original precedents are those that establish a new rule of law. These precedents are the result of Courts exercising their privilege of developing law while they sit to administer it. These precedents are the basis of law.
These precedents are persuasive and authoritative:
These are the precedents that must be followed regardless of whether the judge deems the principle to be correct. The decisions of the High Court serve as authoritative precedents to the subordinate courts, and the Supreme Court’s decisions are authoritative precedents to the High Courts and all subordinate courts.
These are the precedents that courts can or cannot follow. For the courts of Pakistan, the judgements of Indian High Courts after the partition of the subcontinent and of the Supreme Court of India and of other Foreign Courts can be persuasive.
Precedents of absolute and conditional authority
These precedents of absolute authority are binding decisions that are not only binding but also unjustifiable or erroneous. The precedents of superior courts also serve as precedents for subordinate or inferior courts.
A decision of the Full bench is also binding for a Bench that includes two or more judges from subordinate and equivalent courts.
Precedents with conditional authority are those that are binding but are conditionally. The decision of a single judge of the High Court does not constitute an authoritative precedent, but it is conditional.