‘Sources of Law’ are the origins of laws and can mean the force or validity of the law. Vinogradoff defines the source of law as a way through which the laws are evolved. They are the legally binding regulations that assist in the functioning of the state. The sources of law are very important as it is essential for everybody to be aware of the written laws and prove to be a valuable member of society.
There are various sources of law that help to avoid any unethical behavior, like customs, judicial precedents etc. This research paper will focus on a very prime source of law- Judicial Precedent.
A precedent is a statement of law established in a superior court’s decision that must be used as a guideline by all inferior courts. The courts in most common law jurisdictions are organised in a hierarchical fashion and adopt the doctrine of precedent as the principle by which decisions of the various courts are integrated into a system.
‘Judicial Precedent’ refers to a judgement of a Court of law which is looked at as an authority for judging a similar set of facts. To sum up, a judicial precedent is a decision of the court which is used as a source for future decision making in cases with a similar set of facts.
SOURCES OF LAW
1.1 What do you mean by sources of law?
Sources of law are the origins of laws, the binding rules that enable any state to govern its territory. The term ‘source of law’ sometimes refers to the seat of power from which the law derives its validity. In simple terms, the source of law means the validity of the law.
The word ‘source’, in general, has been defined as origin. Various well-known scholars have diverse views about the sources of law. According to Austin, the law is derived from sovereign power. Savigny always associated it with the popular will of the people i.e., volkgeist. There was a set of people, theologians, who had an inclination towards the study of religion, believed that the law had originated from God.
The sources of law can be divided into two categories: legally binding (has a force of law) and persuasive. On the other hand, a known scholar, John Salmond, divided the sources into formal and material.
There are found to be three sources of law in India: customs, legislation and precedents.
Customs are the earliest sources of law and form the basis of the English Common Law system as we see today. On the other hand, Legislation means the process of law-making, it mainly consists of the declaration of legal rules by an authority empowered by the Constitution, and Precedents will be discussed in detail in this research paper. We can note that law has evolved over time from legislation, customs, and precedents.
1.2 Importance of sources of law
The term “law” refers to a wide range of topics. In today’s society, a functional legal system is critical for the smooth operation of social life and the survival of humanity.
One must understand the origins of law and which sources can be relied on for justice.
THE BACKBONE OF PRECEDENTS
2.1 Origin of Precedent
Indian law is based on English common law, as it was during the British raj that they had power over the country.
A ‘precedent’ is an event or act that has occurred previously and is used as a guide for similar situations. According to Bentham, “precedents are judge-made laws.”
Article 141 of the Constitution of India makes the ‘law declared’ by the Supreme Court binding on all courts within the territory in India. The Expression ‘law declared’ implies the law creating role of the Supreme Court. The Supreme Court is not obligated to follow its own precedents. The court stated in Bengal Immunity Co. v. State of Bihar that nothing in the Indian constitution forbids the Supreme Court from overturning a previous judgement if it is convinced of its inaccuracy and detrimental effect on the public interest. In the case of the high court, the decisions of the high court are binding on all subordinate courts within the High Court’s jurisdiction.
2.2 Basics of a precedent
The theory of judge-made law – the theory underlying the system by which the decision of a court in a case becomes the highest indication of the existence of a previously unwritten rule of law, involves the assumption that both the parties are heard by the judge until all the oral argument has been properly done. The decision made by the judge is preserved and can be brought up in future cases as a precedent to ensure a fair decision-making process. It should be highlighted that in order to employ a precedent in a case, the facts before the court and the reasoning process by which the original case’s conclusion was reached must be precisely recognised.
To study precedents as a source of law, the understanding of its authority and principles is extremely imperative.
2.3 Authority of precedents
The authority of a decision as a precedent lies in its Ratio Decidendi.
2.3.1 Ratio Decidendi and Obiter Dictum
There are some issues that can only be solved on the basis of principles. Such principles are derived by simplifying the case’s material facts and removing the immaterial parts. The principle that emerges as a result of such a case is relevant not only to that case but also to cases that are fundamentally similar to the determined case. To sum up, it helps the court in arriving at a decision. Ratio Decidendi is the name of this principle.
The issues that do not need the establishment of universal principles are answered based on the facts of the case and do not establish any general principles. It is defined as the opinion expressed by the judge and is only used to describe the circumstances. Obiter Dictum is the name for this and is persuasive in nature.
Precedent originates from the doctrine of stare decisis. Stare decisis means to abide by the decisions. The theory of stare decisis ensures that judicial and legal rulings are clear and consistent.
2.4 The doctrine of stare decisis – ‘Stare decisis et non quieta movere’
The notion of stare decisis can simply be described as a precedent’s binding power. It is a legal doctrine that obligates the courts and their judges to respect and abide by the precedents laid down as a benchmark by similar prior decisions. This legal principle is basically a rule that a court must follow the rules that are established by a superior court’s decisions.
Article 141 of the Indian Constitution states that “law declared by the Supreme Court to be binding on all courts within the territory of India.” It must be noted that only the ratio decendi of a case is binding not the obiter dicta and the mere facts of the previous cases.
The reason behind the doctrine is to maintain consistency and certainty in the process of decision making. It ensures that the previous decisions and opinions of the superior courts are respected and relied upon for future references.
It was stated in an Indian case that one of the basic principles to be kept in mind is that in similar sets of facts and circumstances or legal problems, the courts having co-ordinate jurisdiction should have consistent opinions. Instead of achieving judicial concord, if opinions offered on identical facts are conflicting, judicial anarchy will result. The view that has dominated the field for a long period must not be shaken simply because another view exists.
2.4.1 Why stare decisis?
The preferred path is stare decisis, which encourages fairness, predictability, and consistency in the development of legal concepts, builds trust in court rulings and enhances the judicial process’ actual and perceived integrity.
PRECEDENTS AS A SOURCE OF LAW
3.1 What Are Precedents
In general English, the term precedent means, ‘a previous instance or case which is, or may be taken as an example of rule for subsequent cases, or by which some similar act or circumstances may be supported or justified.’
‘Precedents cover everything said or done, which furnishes a rule for further practice’
A prime source of law in India is judicial precedents. As the word ‘precedent’ suggests, it refers to a precede judgment of the court. A precedent is a statement of law found in the decision of a superior court and has to be followed by the court inferior to it.
A system of precedents can refer to two concepts that are related but fundamentally distinct. Precedents are viewed as a tool to assist judges in making equitable rulings. However, precedents do not bind the judge; they are her assistants, not her rulers, and their impact is persuasive rather than coercive. Precedents, on the other hand, are authoritative and binding. In the context of Indian legislation, this means that the Supreme Court’s judgements are only binding if they have not been overturned by the Supreme Court.
3.2 Types of precedents
There are mainly three types of Precedents-
- Declaratory and Original
- Declaratory and Original-
Declaratory precedent refers to situations in which an established rule of law is applied. In such circumstances, it is clear that the rule is being enforced since there was already a law on the subject. There is no judicial ingenuity, it does not help in creating new laws.
Example – AK Gopalan vs State of Madras
Original precedents refer to cases in which a point of law has never been decided previously, and in which the judge’s ruling serves as an original precedent. A future law that sets and imposes new rules is known as an original precedent.
Example – MC Mehta case – Shri Ram Foods(absolute liability)
Decisions made by a lower court that a higher court or any other court is not bound to follow, are referred to as persuasive precedents. The court will decide whether or not to consider it while determining the case’s outcome.
Example – Naz foundation case
The use of precedents that are binding on all courts is referred to be authoritative. These precedents bind judges who interpret the law, and they are regarded as a source of law regardless of whether they agree with it.
Example – Keshavananda Bharati case
After examining the basics of precedent and how its various types with reference to cases, it is vital to study the importance of precedents.
3.3 Importance of Precedents
The importance of decisions as a source of law was recognised even in ancient times. There have been countless instances in the past where this has occurred. In the context of India, in the Mahabharata, it has been stated that ‘The path is the right one which has been followed by virtuous men.’ This could be viewed as stating a precedent concept. In addition, judicial judgements were seen as having enormous authority in Babylonia and China’s early legal systems, and they were later incorporated in code law.
The judge-made law is now one of the modern legal systems. It’s known as ‘Common Law.’ It grew mostly as a result of judicial decisions. The majority of legal areas, such as torts, were formed solely by judges. Precedents are important not just in municipal law but also in international law. The International Court of Justice’s rulings are a significant source of international decisions and legislation.
Hence, it can be concluded that precedents have gained importance as well as relevance over time, from the ancient era to modern times.
MERITS AND DEMERITS OF PRECEDENT AS A SOURCE OF LAW
4.1 Advantages of Precedents
- Justice, certainty, efficiency and predictability -It eliminates ambiguity by eliminating the possibility of conflicting choices. There will be justice, impartiality, and some predictability because similar instances will be addressed similarly. Lawyers can also provide sound advice to their clients.
- Flexibility – Our legal system should reflect the changing nature of society. Any country’s supreme court has the authority to deviate from its judgement anytime it pleases, allowing for versatility.
- Save time – Judges do not have to solve the same legal concept again because of precedents. It may also lower the country’s crime rate since people are aware of the potential repercussions of their actions.
- Fairness – If the circumstances of the case are similar but no precedent is followed, the person will not feel treated fairly. We need judges to follow judicial precedent because if the law is consistent, subsequent victims will have a better chance of being protected.
4.2 Disadvantages of precedents
- Complexity and volume – Thousands of legal reports have been added, and more are being added all the time. Although the internet is handy, there is now a substantial quantity of case laws available online. Judgments may be lengthy, and finding the right ratio can be challenging. Also, precedents can create more applicable decisions for a case than is necessary.
- Retrospective in effect – Laws are retrospective, which means that if a new law is enacted, you may be held accountable by the new law even though you were not guilty under the old law at the time you committed the offence. As a result, when a precedent is established, a particular conduct may or may not constitute a crime, but it is no longer the same as it was. As a result, we are unable to use the same ideas.
- Forces system to look backwards instead of looking in future – What we must consider is that the scenario at the time the precedent was made was not the same as it is today or in the future, which is why we prefer the norms and standards established at that time since they cannot meet the parameters of today.
We can plainly infer from the explanation above regarding the legal worth of precedents that these play a very essential role in filling in the gaps in law and the numerous statutes. These also aid in the preservation of regional norms, making decisions morally acceptable to the people. As a result, their trust in the judiciary grows, which aids in legal progress.
Furthermore, as a kind of respect for the prior views of numerous great jurists, these contribute to upholding the idea of stare decisis. It is a matter of enormous convenience that a topic, once determined, be settled and not be susceptible to re-argument in every circumstance when it arises. It will save the judges’ and lawyers’ time. This saves the judges a lot of time, which is a significant difficulty in today’s legal system with so many cases that have been waiting for years. Precedents provide legal certainty. They modify and bend the law in response to changing circumstances, bringing flexibility to the law.
John Bell, Sources of Law, 77 CAMBRIDGE L.J. 40 (2018).
Earl Maltz, The Nature of Precedent, 66 N.C. L. REV. 367 (1988).
Edward B. Whitney, Doctrine of Stare Decisis, 3 MICH. L. REV. 89 (1904-1905).
A Laxminath, Precedent In The Indian Legal System, Journal of the Indian Law Institute, 33(3), 465–469. (1990)
Monika Bhakta, Evolution Of Precedent In Indian Society: How, Where And By Whom?, IJLLJS, ISSN:2348-8212:Volume 3 Issue 1 (2016).
Precedents, 8 CAMBRIDGE L.J. 118 (1943).
Rachit Garg, Judicial Precedent is a Source of Law, i-Pleaders (2020).
Priyan Garg, Precedents as a source of law, academike (2015).
Dipti Khatri, Stare Decisis, academike (2015).
K. Sivananda, Article 141: Law Declared by Supreme Court to Be Binding on All Courts (2020).
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