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Precedents – A Judge made Law

Precedents play an important role in the development of law. It is the second important source of law

Precedents

Introduction to Precedents

Precedents literally mean previous judicial decisions. The decisions of the higher courts are binding on the lower courts. The binding force of decision is called precedent.

Precedents play an important role in the development of law. It is the second important source of law. The first source is customs and the third source is legislation. Sometimes act may be insufficient for the case or there may be a vacuum or anything missing in the act.

Under these circumstances, the court can apply their own mind. These independent decisions become precedents that are followed later on by the same & Lower courts. This method of decision is also called a Judge made law.

The English and American law is mostly based upon the precedents. In India Art.141 of the Indian Constitution says that the decision of the higher courts shall be binding upon the lower courts.

DEFINITION OF PRECEDENTS:-

Precedents are a decision of a court which is also called a judicial decision. According to Oxford University, “Precedents means the previous decision case given by a court according to rules.” Various writers have given the definition of precedents is the conduct of court adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the precedents mean the Judge made law.

When the court gives its own ideas for creating new rules. England, America and China also follow the previous decisions as to the source of law but the continent countries like Germany, Japan does not accept the previous decisions as to the source of law.

The method of taking precedents as a source of law is called the inductive method, while the method of continental countries not following previous decisions of the court is called the deductive method.

MERITS OF PRECEDENTS:-

Precedents are a very important source of Law. They play an important role in the development of law, so they have certain advantages like

1. Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case, it is a kind of respect to elders.

2. Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances.

3. Precedents are based on customs means the law in the form of the act which based upon customs. The court interprets the customs while interpreting any act.

4. Precedents are convenient and easy to follow because they are available in the form of written reports.

5. Precedents bring certainty in the law, once the decision is given in a case there would be no need to repeat all precedents in any other case if it resembles the former case.

6. Precedents are the best guide for the Judges: They play an important role in the judiciary because the precedents are the guidelines for the courts.

DEMERITS OF THE PRECEDENTS:-

although the demerits are very few these are as under:-

i) The decisions are given by human beings while performing the duties as a judge, his decision may not be suitable to all persons who have different mind and thinking. This will be a bad effect on Judiciary.

ii) Sometimes the decisions of the higher courts contradictory to each other. It becomes harder to another judge to apply the same verdicts as precedents of the higher court

iii) Sometimes the higher courts give a wrong decision and overpass the important factors of the case due to one reason or the others.

PRECEDENTS ARE BINDING:-

The precedent is an important source of law. It is available in the form of judicial decisions. Now the question arises that in what sense and when the precedents are binding o follow. For the answer to this query different views have been given by the various writers and jurists.

No doubts the precedents are not binding like a warrant issued by a court of law. It means precedent can be overruled if they are not right or appropriable to the case to be decided but a warrant has to be followed by all to whom it is applicable.

It is not necessary that in the case which is to be decided the circumstances and the facts must be the same as in the resembling case. If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts to it:-

Ratio-decidendi:-

means reasons which lead the court to reach the decision. It is the main part of the case in judgment and the ratio decidendi of the decision is binding in the form of precedent.

Obiter dictum:-

It is also a part of the decision which is irrelevant to the facts and circumstances of the case. The judge takes into consideration the social conditions, morality, principle of natural justice that is why the Judges play an important role in the development of the legal system.

DIFFERENCE BETWEEN CUSTOM & PRECEDENTS CUSTOMS PRECEDENTS

Custom is the primary source of law. Precedents are the secondary source of law. Custom is given by people in general. Precedents are given by courts. Custom is conduct adopted by people of society.

Precedents are itself complete certain, reasonable given by a competent court of the country. Custom is based upon the reasoning of common people of the society. Precedents are based upon the reasoning of an individual Judge or very few judges.

Customs have more value than precedents and cannot be ignored. It can be ignored if it gives un-justice.

DO JUDGES MAKE LAW:-

There are two theories about this purpose one theory says that Judges do not make laws and the other theory says that Judges in fact are the makers of Laws. This theory is also known as

declaratory Theory

According to this, the judges are not makers of the laws which they are already n existence. The judges while deciding the case only applies the existent and relevant customs for deciding the cases.

Judges are not the lawmakers:-

The supporters of this theory (historical school) say that all the laws are based upon customs. The judges only to explain these laws and customs. According to Coke hate and Dr.Carter, that the law is created by the King or by the Parliament or by the Legislature bodies. Common Laws are based upon custom. The public through the decision of courts comes to know those customs. It means that the Judiciary is not the maker of law. A case: Rageshwar Parsad v/s state of West Bengal. It was held that The court does not create Law.

ORIGINAL LAW MAKING THEORY

This theory is opposite to the first theory. It says that the Judges are the real makers of the law. They not only interpret or explain but also make the law. According to Salmond: who is the main supporters of this theory says, “ That the decisions of the courts are a great contribution to the legal system.” Dicey says that “that legal system is the best part of the law of England which is judge-made law.”

CONCLUSION:-

The conclusion or the correct view is that we cannot ignore any of the above theories because both are correct and complements each other and both should be taken. No doubt that a Judge can only explain or interpret the existing laws but at the same time, he also creates new ideas, thoughts and gives new touch ideas that play an important role in the development of law.

Wiki- precedents

What do you think?

Written by lawcrab

Lawcrab is the First Magazine focusing on making the law easier to understand for everyone.

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