Sources of Law: Precedent I

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Judicial precedents, originated from Britain, have acquired the binding authority of law and are one of the foremost sources of law. Judges play a significant role in developing a legal system and when there is no statutory law or there is ambiguity in law on a particular issue, judges apply their own mind to formulate and define a law. The decisions on such points become the authority or guide for subsequent cases of a similar nature. They hold the same status as a statutory law does and that is why precedents are also called as judge-made laws.

Definition and Meaning:

According to Keeton: “A judicial precedent is a judicial decision to which authority has, in some measure, been attached.”[i]

Gray said, “A precedent covers everything said or done which furnished a rule for subsequent practice.”[ii]

According to Jenks: “A judicial precedent, in a decision by a competent court of justice upon a disputed point 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.”[iii] 

Oxford Dictionary defines precedent as “a previous instance or case which is, or may be taken as an example of a rule for subsequent cases, or by which some similar act or circumstances may be supported or justified”.

In general terms, precedents may be construed as a guidance by superior court which it has decided in a past case to the inferior courts for future cases on the same point which must be followed.

Reasons behind enforcement of Precedent:

1. Precedents are based on practical experiences and not only on logic. Allen says “The Judge is the interpreter of social mind and he can easily adapt the law to changing wants of those amongst whom the law is administered.”
2. Precedents are based on convenience in the sense that it provided settled law and thus help in saving time and labour of the system.
3. Precedents have prevented an error of judgment by individual judges.
4. There cannot be partiality on the part of judges due to precedent.
5. It also helps the lawyers by giving them a cautious view of the law on the basis of past judicial experiences.
6. The reason why precedents are so recognized is that a judicial decision is presumed to be correct. That which is delivered in judgment must be taken for established truth.
7. The practice of following precedents creates confidence in the minds of litigants. Law becomes certain and known and that in itself is a great advantage.

To be continued…

[i] Keeton, op. cit., p. 96

[ii] Gray, op. cit., p. 198

[iii] Jenks, op. cit., p. 70

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
3. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.