Precedent
Q Define merits and demerits of precedents?
Q What are precedents? Discuss the advantage and disadvantages of precdents?
Q short note on law of precedent.
Q short note on acquisition of possession?
Q what are precedents? Explain the kinds of precedents.
Q discuss the importance of precedent as a source of law. What are the various theories of precedent?
Q discuss the circumstances that destroy the binding force of precedents.
Q when precedent is not bound? Distinguish the case law
if the law has been changed upon which precedent given
Over rule decision
subsilentio
The great body of the common or unwritten law is almost entirely the product of decided cases. in practice, if not in theory, the common law of England has been created by the decisions of English judges. In the continent precedents claim the same authority as expert legal opinion. They are both the evidences of law and are of persuasive nature; but they are nothing more. A judicial precedent speaks in England with authority; it is not merely evidence of the law but a source of it; and the court are bound to follow the law that is so established. Precedent claims the distinction of authority, this was due to the power, skill, and professional reputation of early judges who made them. In a legal system, precedent is a judicial decision which establishes a legal rule for subsequent similar cases.
Doctrine of precedent: there are two meaning of it, firstly it means that the precedents are reported, they may be cited and probably will be followed by the courts. In second sense it means that precedents will not only possess great authority but they should be followed.
The operation of the doctrine of precedent is based on Stare Decisis which is a Latin term meaning that stand by the previous decision. The doctrine of precedent refers that the legal decisions made by judges in higher courts are remained as a precedent, so the decisions made by lower or equal courts in future are needed to be followed the earlier decision made in the higher courts. It is believed that the doctrine of precedent brings certainty to the English legal system.
In each case, judges are to provide judgments upon their decisions. This judgment has to provide two types of states. Which are the Ratio dicidendi and the Obiter dicta.
Ratio decidendi: it is a latin phrase meaning “the rationale for the decision”. The ratio decidendi is the point of or in a case which determines the judgement or the the principle which the case establishes. In other words ratio decidendi is a legal rule derived from and consistent with, those parts of legal reasoning within a judgement on which the outcome of the case depends.
So, when you look at the judgement with the intention to use it as a point of law, you searched for the ratio decidendi of that case, that is the central the core or the main point.
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
Obiter dictum: it is actually something that has been said and observed by the judge so, a higher court may be giving a judgement on a legal point also make certain observation regarding an another legal concept and these observations are obiter dictum. Even though such observations may be obiter dictum or said “by the way” they still very much are binding in future and are a developed law.
Types of precedent:
According to Declaratory theory all precedents are declatory merely; they do not make the law. It seems to equally inapplicable to common law . courts have the power of developing the law at the same time that they administer it. judicial decisions may be distinguished as authoritative and persuasive.
An authoritative precedent is one which judges must follow whether they approve it or not. In other words they are legal sources of law.
A persuasive in one which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attatch such weight as it seems to them to be proper. In other words they are merely historical sources.
Avoidance of precedent:
There are two ways in which a precedent may be disregarded. The court in which it is cited may overrule it or may simply refuse to follow it. Third one include precedent sub silentio
Over-ruling is a function of superior jurisdiction, its effect is to make the precedent devoid of any authority.
Refusal to follow a precedent is generally the act of co-ordinate jurisdiction: its effect is to have both the authorities stand side by side until this legal antinomy is solved by a higher authority.
Precedent Sub silentio: When points of law not perceived by the court i.e precedent sub silentio. In other words where judgement given by the court is made in ignorance of statute or not supported by legal decision .
Precedent losses its binding force in other ways as well. Following are the circumstances destroying or weakening the binding force of precedent:
In case of abrogated decisions
When higher court either affirms or reverses the judgement of lower court
If it be rendered in ignorance of any statute
When there is inconsistency between earlier decision of the same rank
When decision are of equally divided court.
Advantage and disadvantage of precedent:
ADVANTAGES:
o Consistency and predictability – the system provides fairness and justice as similar cases will be treated and decided in the same way as a past case. This allows lawyers to advise their clients with some certainty as to their position and whether to take a case to court
o Flexibility – judges in the higher courts are able to develop and update the law to take account of changing social conditions. Their decisions may influence Parliament to introduce or update new statutory rules
o New precedent – new situations may arise which are not covered by any statutory rule or previous precedent. Judges will be able to consider past similar cases or perhaps cases from other countries and make rules for the case before them which can operate as a precedent for future cases
DISADVANTAGES
o Complexity and volume –A judgement may be extremely long and it is for lawyers and judges in future cases to work out the ratio decidendi. There may be differing opinions on what the ratio is and what the obiter is.
o Uncertain – the result of a court case can be uncertain until the final (appeal) judgement is made.
o Rigid – a rule can remain in place for a long time, even if it is outdated, as change requires a case to come to a higher appeal courts before new rule can come about.
o Retrospective effect – precedent has to be backward looking in the case that sets the precedent. This could be unfair in criminal cases if an offence is made by the judgement.
