Judicial Precedents: As a source of

Law

LEGAL METHODS
FACULTY OF LAW
JAMIA MILLIA ISLAMIA

SUBMITTED BY:
Iqra Meraj
B. A. LL.B. (Hons.)
Class: 2nd yr

SUBMITTED TO:
Mr. Eqbal Hussain
 ACKNOWLEDEMENT
I have taken efforts in this project however it
would not have been possible without the kind
support and help of many individuals, websites and
books. I would like to extend my sincere thanks to
all of them.

I am highly indebted to Mr. Eqbal for guidance and

constant supervision as well as for providing
necessary information regarding the project and
also for his support in completing the project.

Iqra Meraj
B. A. LL.B. (Hons.)
Class: 2nd yr
Batch: 2012-17

INDEX
2
1. Introduction
2. Background
3. Sources of Law: A brief
4. Precedents as a source of law
5. Nature of precedent
6. Binding force of precedent
7. Role of judges
8. Kinds of precedents
9. The doctrine of Stare decisis
10.The doctrine of stare decisis as applicable in India
11.Doctrine of Precedent: Pros and cons
12.Per Incuriam
13.Sub Silentio
14.Doctrine of Prospective Overruling
15.Ratio Decidendi
16.Advantages and disadvantages of judicial precedents
17.Conclusion

INTRODUCTION

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Why should there be a special study of jurisprudence? Every
one knows why there should be a study of law. It is obvious,
for instance, that in order to draw up a will, or to enforce
claims arising out of an agreement, one has to know the law.
Some lawyers will say that they must attend to the actual
rules of law and to the requirements of their clients and have
no time to read books on general topics. But the craftsman’s
point of view can hardly be carried very far. Even in pleading
as to the rescission of a contract you may have to rely on
considerations of morality and of public utility. It will, I
suppose, be conceded that a wide range of culture and
knowledge is desirable in the case of the legislator and of the
judge; but then barristers and solicitors prepare the way for
judicial decisions and deal with the same elements of right as
the judges, although their arguments are presented from
more one-sided points of view. Some practising lawyers will
nevertheless—as Leslie Stephen has put it—consider all
theory of law with “serene indifference”; if so, they will have
to be left to their own devices. Jurisprudence addresses itself
to those who study law as a part of a system of knowledge.
The subject has an interest of its own apart from any
consideration as to immediate utility. Law is one of the great
departments of human thought and of social activity. As such,
it claims the attention not only of the jurist but of the student
of social science, of the philosopher and, in a wider sense, of
every educated man. We may systematize our knowledge of
the world from two different points of view: either by reducing
complex phenomena to their causes and ascertaining, as far
as possible, the laws of their recurrence, or by using our
knowledge as a guiding light for our actions. In the first
direction, when we study things as they are, there arise

4
theoretical sciences, such as mathematics, physics,
economics. In the other direction, when we study the means
of making things as we want them to be, we have to turn to
applied sciences, such as engineering, medicine, law.
Comparing laws with medicine, we may say that both aim at
providing a rational background for a vast body of practical
precepts; both are indispensable for the intelligent exercise of
an art; both derive their teaching from the application of
various sciences to the concrete problems of health and
disease, of civil intercourse and crime. The physician
combines for a specific purpose doctrines, of physics and
chemistry, of biology and psychology; the lawyer draws on the
study of logic, of psychology and of social science in order to
co ordinate and explain legal rules and to assert rights. Our
enumeration of the sciences on which the lawyer has to rely
may seem scanty at first sight. Why is ethics not mentioned
among them, why not history and philosophy? As to ethical
doctrines, they are, of course, closely related to
jurisprudence, but they present themselves to jurists chiefly in
their practical aspect as influencing conduct.

In this sense the data of ethics form a most important chapter

of psychology, as the operations of the mind bearing on
conduct. Of the connection between history and jurisprudence
we shall have to speak on many occasions. It may be sufficient
to state now that history cannot be contrasted with the
theoretical study of law because it provides one of the
essential elements of legal method. As for philosophy, its
influence is all-pervading and is bound to make itself felt. In
the treatment of any subject: it forms, as it were, the
atmosphere for all scientific studies. At the same time it

5
cannot and ought not to direct the investigation of any
particular point, for the very reason that it aims at a synthesis
of all. Every jurist is left to face the problems of law in his own
way, and by such help as he can derive from those branches of
special knowledge which have a direct bearing on legal
questions. And these are logic, psychology and social science.

BACKGROUND

The Law of the State or of any organized body of men is

composed of the rules which the courts, that is, the judicial
organs of that body, lay down for the determination of legal
rights and duties. The difference in this matter between
contending schools of Jurisprudence arises largely from not
distinguishing between the Law and the Sources of the Law.
On the one hand, to affirm the existence of nicht positivisches
Recht, that is, of Law which the courts do not follow, is
declared to be all absurdity; and on the other hand, it is
declared to be an absurdity to say that the Law of a great
nation means the opinions of a half-a-dozen old gentlemen,
some of them, conceivably, of very limited intelligence.

The truth is, each party is looking at but one side of the shield.
If those half-a- dozen old gentlemen formed the highest
judicial tribunal of a country, then no rule or principle which
they refuse to follow is Law in that country. However
desirable, for instance, it may be that a man should be obliged
to make gifts which he has promised to make, yet if the courts
of a country will not compel him to keep his promise, it is not
the Law of that country that promises to make a gift are

6
binding. On the other hand, those six men seek the rules
which they follow not in their own whims, but they derive
them from sources often of the most general and permanent
character, to which they are directed, by the organized body
to which they belong, to apply themselves.

Of the many definitions of the Law which have been

given at various tunes and places, some are absolutely
meaningless, and in others a spark of truth is distorted by a
mist of rhetoric. But there are three theories which have
commended themselves to accurate thinkers, which have had
and which still have great acceptance, and which deserve
examination. In all of them it is denied that the courts are the
real authors of the Law, and it is contended that they are
merely tile mouthpieces which give it expression .

LAW AS THE COMMAND OF THE

SOVEREIGN

The "first of these theories is that Law is made up of the

commands of the sovereign. This is Austin's view. "Every
Positive Law," he says, "obtaining in any community, is a
creature of the Sovereign or State, having been established
immediately by a subject individual or body, as exercising
rights or powers of direct or judicial legislation, which the
monarch or supreme body has expressly or tacitly conferred.

In a sense, this is true the State can restrain its courts

from following this or that rule; but it often leaves them free
to follow what they think right; and it is certainly a forced

7
expression to say that one commands things to be done,
because he has power (which he does not exercise) to forbid
their being done.
Mr. A. B., who wants a house, employs an architect, Mr.
Y. Z., to build it for him. Mr. Y. Z. puts up a staircase in a
certain way; in such a case, nine times out of ten, he puts it up
in that way, because he always puts up staircases in that way,
or because the books on construction say they ought to be so
put up, or because his professional brethren put up their
staircases in that fashion, or because he thinks to put it up so
would be a good building, or in good taste, or because it costs
him less trouble than to put it up in some other way; he
seldom thinks whether Mr. A. B. would like it in that way or
not; and probably Mr. A. B. never thinks whether it could
have been put up in any other fashion. Here it certainly seems
strained to speak, as Austin would do, of the staircase as
being the "creature" of Mr. A. B.; and yet Mr. A. B. need not
have had his staircase put up in that way, and indeed need
never have had any staircase or any house at all.
When an agent, servant, or official does acts as to which
he has received no express orders from his principal, he may
aim, or may be expected to aim, directly at the satisfaction of
the principal, or he may not. Take an instance of the first--a
cook, in roasting meat or boiling eggs, has, or at any rate the
ideal cook is expected to have, directly in view the wishes and
tastes of her master. On the other hand, when a great painter
is employed to cover a church wall with a picture, he is not
expected to keep constantly in mind what will please the
wardens and vestry; they are not to be in all his thoughts; if
they are men of ordinary sense, they will not wish to be; he is
to seek his inspiration elsewhere, and the picture when done

8
is not the "creature" of the wardens and vestry; whereas, if
the painter had adopted an opposite course, and had bent his
whole energies to divining what he thought would please
them best, he would have been their "tool," and the picture
might not unfairly be described as their creature.
Now it is clear into which of these classes a judge falls.
Where he has not received direct commands from the State,
he does not consider, he is not expected to consider, directly
what would please the State; his thoughts are directed to the
questions—What have other judges held? What does Ulpian or
Lord Coke say about the matter? What decision does elegantia
juris or sound morals require?
It is often said by hedonistic moralists that, while
happiness is the end of human life, it is best attained by not
aiming directly at it; so it may be the end of a court, as of any
other organ of a body, to carry out the wishes of that body,
but it best reaches that object by not directly considering
those wishes.
Austin's statement that the Law is entirely made up of
commands directly or indirectly imposed by the State is
correct, therefore, only on the theory that everything which
the State does not forbid its judges to do, and which they in
fact do, the State commands, although the judges are not
animated by a direct desire to carry out the State's wishes,
but by entirely different ones.

"A LAW" AND "THE LAW"

In this connection, the meaning of "Law," when preceded

by the indefinite is to be distinguished from that which it

9
bears when preceded by the definite, article. Austin, indeed,
defines the Law as being the aggregate of the rules
established by political superiors; and Bentham says, "Law, or
The Law, taken indefinitely, is an abstract and collective term;
which, when it means anything, can mean neither more nor
less than the sum total of a number of individual laws taken
together. But this is not, I think, the ordinary meaning given
to "the Law." A law ordinarily means a statute passed by the
legislature of a State. "The Law" is the whole system of rules
applied by the courts. The resemblance of the terms suggests
the inference that the body of rules applied by the courts is
composed wholly of the commands of the State; but to erect
this suggestion into a demonstration, and say:--"the Law," "the
Law" consists of nothing but an aggregate of single laws, and
all single laws are commands of the State,--is not justifiable.

It is to Sir Henry Maine that we owe the distinct pointing

out that Austin's theory" is founded on a mere artifice of
speech,” and that it assumes courts of justice to act in a way
and from motives of which they are quite unconscious. ...Let it
be understood that it is quite possible to make the theory fit in
with such cases, but the process is a mere straining of
language. It is carried on by taking words and propositions
altogether out of the sphere of the ideas habitually associated
with them.

Austin's theory was a natural reaction against the views

which he found in possession of the field. Law had been
defined as "the art of what is good and equitable"; "that which
reason in such sort defines to be good that it must be done";
"the abstract expression of the general will existing in and for

10
itself'; "the organic whole of the external conditions of the
intellectual life." If Austin went too far in considering the Law
as always proceeding from the State, he conferred a great
benefit on Jurisprudence by bringing out clearly that the Law
is at the mercy of the State.

LAW IN THE CONSCIOUSNESS OF THE

PEOPLE

The second theory on the nature of Law is that the

courts, in deciding cases, are, in truth, applying what has
previously existed in the common consciousness of the people.
Savigny is the ablest expounder of this theory. At the
beginning of the System des heutigen romischen Rechts, he
has set it forth thus: "It is in the common consciousness of the
people that the positive law lives, and hence we have to call it
Volkrecht
...it is the Volksrecht, living and working in all the
individuals in common, which begets the positive law, so that
for the consciousness of each individual there is, not by
chance but necessarily, one and the same law.. The form, in
which the Law lives in the common consciousness of the
people, is not that of abstract rule, but the living intuition of
the institute of the Law in its organic connection ...When I say
that the exercise of the Volksrecht in single cases must be
considered as a means to become acquainted with it, an
indirect acquaintance must be understood, necessary for
those who look at it from the outside, without being
themselves members of the community in which the
Volksrecht has arisen and leads its continuous life. For the

11
members of the community, no such inference from single
cases of exercise is necessary, since their knowledge of it is
direct and based on intuition.

Savigny is careful to discriminate between the common

consciousness of the peop1e and custom: "The foundation of
the Law," he says, "has its existence, its reality, in the
common consciousness of the people. This existence is
invisible. How can we become acquainted with it? We become
acquainted with it as it manifests itself in external acts, as it
appears in practice, manners, and custom: by the uniformity
of a continuous and continuing mode of action, we recognize
that the belief of the people is its common root, and not mere
chance. Thus, custom is the sign of positive law, not its
foundation.

OPINIONS OF JURISTS

Savigny is confronted by a difficu1ty of the same kind as

confronted by Austin. The great bulk of the Law as it exists in
any community is unknown to its rulers, and it is only by aid of
the doctrine that what the sovereign permits he commands,
that the Law can be considered as emanating from him; but
equally, the great bulk of the Law is unknown to the people;
how, then, can it be the product of their "common
consciousness"? How can it be that of which they "feel the
necessity as law"?

Take a simple instance, one out of thousands. By the law

of Massachusettes, a contract by letter is not complete unti1

12
the answer of acceptance is received. By the law of New York,
it is complete when the answer is mailed. Is the common
consciousness of the people of Massachusettes different on
this point from that of the people of New York? Do the people
of Massachusettes feel the necessity of one thing as law, and
the people of New York feel the necessity of the precise
opposite" In truth, not one in a hundred of the people of either
State has the dimmest notion on the matter. If one of them
has a notion, it is as likely as not to be contrary to the Law of
his State.

Savigny meets the difficulty thus: "The Law, originally

the common property of the collected people, in consequence
of the ramifying relations of real life, is so developed in its
details that it can no more be mastered by the people
generally. Then a separate class of legal experts is formed
which, itself an element of the people, represents the
community in this domain of thought. In the special
consciousness of this class, the Law is only a continuation and
peculiar development of the Volksrecht. The last leads,
henceforth, a double life. In its fundamental principles it
continues to live in the common consciousness of the people;
the exact determination and the application to details is the
special calling of the class of jurisconsults."

But the notion that the opinions of the juris consults are
the developed opinions of the people is groundless. In the
countries of the English Common Law, where the judges are
the jurists whose opinions go to make up the Law, there would
be less absurdity in considering them as expressing the
opinions of the people; but on the Continent of Europe, in

13
Germany for instance, it is difficult to think of the unofficial
and undeterminate class of jurists, past and present, from
whose writings so great a part of the Law has been derived, as
expressing the opinions of the people. In their reasonings, it is
not the opinions of the people of their respective countries,
Prussia, or Schwartzburg- Sonderhausen, which guide their
judgment. They may bow to the authority of statutes, but in
the domain of Law which lies outside of statue, the notions of
Law, if they exist and are discoverable, which they are mostly
not, of the persons wrong whom they live, are the last things
which they take into account. What they look to are the
opinions of foreign lawyers, of Papinian, of Accursius, of
Cujacious, or at the elegentia juris, or at “juristic necessity.”

The jurists set forth the opinions of the people no more

and no less than any other specially educated or trained class
in a community set forth the opinions of that community, each
in its own sphere. They in no other way set forth the
Volksgeist in the domain of Law than educated physicans set
forth the Volksgeist in the matter of medicine. It might be
very desirable that the conceptions of the Volksgeist should
be those of the most skillful of the community, but however
desirable this might be, it is not the case. The Volksgeist
carries a piece of sulphur in its waistcoat pocket to keep off
rheumatism, and thinks that butchers cannot sit on juries.

Not only is popular opinion apart from professional

opinion in Law as in other matters, but it has been at times
positively hostile. Those who hold that jurists are the
mouthpieces of the popular convictions in matters of law have
never been able to deal satisfactorily with the reception of the

14
Roman law in Germany, for that Law was brought in not only
without the wishes, but against the wishes, of the great mass
of the people.

JUDGES AS DISCOVERERS OF THE LAW

A third theory of the Law remains to consider. That

theory is to this effect: The rules followed by the courts in
deciding questions are not the expression of the State's
commands, nor are they the expression of the common
consciousness of the people, but, although what the judges
rule is the Law, it is putting the cart before the horse to say
that the Law is what the judges rule. The Law, indeed, is
identical with the rules laid down by the judges, but those
rules are laid down by the judges because they are the law,
they are not the Law because they are laid down by the
judges; or, as the late Mr. James C. Carter puts it, the judges
are the discoverers, not the creators, of the Law. And this is
the way that judges themselves are apt to speak of their
functions.

ONLY WHAT THE JUDGES LAY DOWN IS LAW

This theory concedes that the rules laid down by the

judges correctly states the Law, but it denies that it is Law
because they state it. Before considering the denial, let us
look a moment at the concession. It is a proposition with
which I think most Common-Law lawyers would agree. But we
ought to be sure that our ideas are not colored by the theories
or practice of the particular system of law with which we are

15
familiar. In the Common Law, it is now generally recognized
that the judges have had a main part in erecting the Law;
that, as it now stands, it is largely based on the opinions of
past generations of judges; but in the Civil Law, as we shall
see hereafter, this has been true to a very limited extent. In
other words, judicial precedents have been the chief material
for building up the Common Law, but this has been far
otherwise in the systems of the Continent of Europe. But
granting all that is said by the Continental writers on the lack
of influence of judicial precedents in their countries to be
true, yet, although a past decision may not be a source of Law,
a present decision is certainly an expression of what the Law
now is. The courts of France today may, on the question
whether a bank endorsement of a bill of exchange passes title,
care little or nothing for the opinions formerly expressed by
French judges on the point, but, nevertheless, the opinion of
those courts today upon the question is the expression of the
present law of France, for it is in accordance with such
opinion that the State will compel the inhabitants of France to
regulate their conduct. To say that any doctrine which the
courts of a country refuse to adopt is Law in that country, is to
set up the idol of nicht positivisches Recht, and, therefore, it
is true, in the Civil as well as in the Common Law, that the
rules laid down by the courts of a country state the present
Law correctly.
The great gain in its fundamental conceptions which
Jurisprudence made during the last century was the
recognition of the truth that the Law of a State or other
organized body is not an ideal, but something which actually
exists. It is not that which is in accordance with religion, or
nature, or morality; it is not that which ought to be, but that

16
which is. To fix this definitely in the Jurisprudence of the
Common Law, is the feat that Austin accomplished. He may
have been wrong in treating the Law of the State as being the
command of the sovereign, but he was right in teaching that
the rules for conduct laid down by the persons acting as
judicial organs of the State are the Law of the State, and that
no rules not so laid down are the Law of the State.
The Germans have been singularly inappreciative of Bentham
and Austin, and, as so often happens, the arrival at a sound
result has been greatly hampered by nomenclature. Ethics is,
in Continental thought, divided into two parts, one dealing
with matters which can be enforced by external compulsion,
and the other with those which cannot. The former of these is
called Rechtslehre. According to Kant, Moral philosophy
(Meta-physik der Sitten) is divisible into two parts: (1) the
metaphysical principles of Jurispru-dence (Rechtslehre), and
(2) the metaphysical principles of ethics (Tugendlehre). Juris-
prudence has for its subject-matter the aggregate of all the
laws which it is possible to promulgate by external legislation.
All duties are either duties of justice (Rechtspflict) or duties of
virtue Tugendpflicht). The former are such as admit of
external legislation; the latter are those for which such
legislation is not possible. Rechtslehre, that is, deals not only
with the ru1es which the State has actually imposed upon
conduct, but also with all conduct which can be potentially
subjected to such rules; and this has tended to obscure the
distinction between the rules which have actually been laid
down from those which might have been laid down. But of late
years, the Germans, in their own way, have been coming
round to Austin's view; and now the abler ones are abjuring
all nicht positivisches Recht.

17
QUESTIONS NOT PREVIOUSLY DECIDED

To come, then, to the question whether the judges

discover preexisting Law, or whether the body of rules that
they lay down is not the expression of preexisting Law, but the
Law itself. Let us take a concrete instance: On many matters
which have come in question in various jurisdictions, there is
no doctrine received, semper, ubique, et ab omnibus. For
instance, Henry Pitt has built a reservoir on his land, and has
filled it with water; and, without any negligence on his part,
either in the care or construction of his reservoir, it bursts,
and the water, pouring forth, floods and damages the land of
Pitt's neighbor, Thomas Underhill. Has Underhill a right to
recover compensation from Pitt?

In England, in the leading case of Rylands v. Fletcher, it was

held that he could recover, and this decision has been
followed in some of the United States--for instance, in
Massachusettes; but in others, as, I believe, in New Jersey,
the contrary is held.

Now, suppose that Pitt's reservoir is in one of the newer

States, say Utah, and suppose, further, that the question has
never arisen there before; that there is no statute, no
decision, no custom on the subject; the court has to decide the
case somehow; suppose it should follow Rylands v. Fletcher
and should rule that in such cases the party injured can
recover. The State, then, through its judicial organ, backed by
the executive power of the State, would be recognizing the

18
rights of persons injured by such accidents, and, therefore,
the doctrine of Rylands v. Fletcher would be undoubtedly the
present Law in Utah.

Suppose, again, that a similar state of facts arises in the

adjoining State of Nevada, and that there also the question is
presented for the first time, and that there is no statute,
decision, or custom on the point; the Nevada court has to
decide the case somehow; suppose it should decline to follow
Rylands v. Fletcher, and should rule that in such cases the
party injured is without remedy. Here the State of Nevada
would refuse to recognize any right in the injured party and,
therefore, it would unquestionably be the present Law in
Nevada that persons injured by such an accident would have
no right to compensation.

Let us now assume that the conditions and habits of life

are the same in these two adjoining States; that being so,
these contradictory doctrines cannot both conform to all ideal
rule of Law, and let us, therefore, assume that an all-wise and
all-good intel1igence, considering the question, would think
that one of these doctrines was right and the other wrong,
according to the true standard of morality, whatever that may
be. It matters not, for the purposes of the discussion, which of
the two doctrines it is, but let us suppose that the intelligence
aforesaid would approve Ryland v. Fletcher, that is, it would
think the Law as established in Nevada by the decision of its
court did not conform to the eternal principles of right.
The fact that the ideal theory of Law disapproved the Law as
established in Nevada would not affect the present existence
of that Law. However wrong intellectually or morally it might

19
be, it would be the Law of that State-to-day. But what was the
Law in Nevada a week before a rule for decision of such
questions was adopted by the courts of that State? Three
views seem possible: first, that the Law was then ideally right,
and contrary to the rule now declared and practised on;
second, that the Law was then the same as is now declared
practised; third, that there was then no Law on the matter.

The first theory seems untenable on any notion of discovery. A

discoverer is a discoverer of that which is, --not of that which
is not. The result of such a theory would be that when
Underhill received the injury and brought his suit, he had an
interest which would be protected by the State, and that it
now turns out that he did not have it, --a contradiction in
terms.

NO LAW PREVIOUS TO DECISION

We have thus to choose between the theory that the Law

was at that time what it now is, and the theory that there was
then no law at all on the subject. The latter is certainly the
view of reason and common sense alike. There was, at the
time in question, ex hypothesi, no statute, no precedent, no
custom on the subject; of the inhabitants of the State not one
out of a hundred had an opinion on the matter or had ever
thought of it; of the few, if any, to whom the question had ever
occurred, the opinions were, as likely as not, conflicting. To
say that on this subject there was really Law existing in
Nevada, seems only to show how strong a root legal fictions
can strike into our mental processes.

20
 When the element of long time is introduced, the
absurdity of the view of Law preexistent to its declaration is
obvious. What was the Law in the time of Richard Coeur de
Lion on the liability of a telegraph company to the persons to
whom a message was sent? It may be said that though the
Law can preexist its declaration, it is conceded that the Law
with regard to a natural force cannot exist before the
discovery of the force. Let us take, then, a transaction which
might have occurred in the eleventh century: A sale of
chattels, a sending to the vendee, his insolvency, and an order
by the vendor to the carrier not to deliver. What was the Law
on stoppage in transitu in the time of William the Conqueror?

The difficulty of believing in preexisting Law is still

greater when there is a change in the decision of the courts.
In Massachusetts it was held in 1849, by the Supreme Judicial
Court, that if a man hired a horse in Boston on a Sunday to
drive to Nahant, and drove instead to Nantasket, the keeper
of the delivery stable had no right to sue him in trover for the
conversion of the horse. But in 1871 this decision was
overruled, and the right was given to the stable-keeper. Now,
did stablekeepers have such rights, say, in 1845? If they did,
then the court in 1849 did not discover the Law. If they did
not, then the court in 1871 did not discover the Law.

COURTS MAKE EX POST FACTO LAW

All this brings us to the reason why courts and jurists

have so struggled to maintain the pre-existence of the Law,

21
why the common run of writers speak of the judges as merely
stating the Law, and why Mr. Carter, in an advance towards
the truth, says of the judges that they are discoverers of the
Law. That reason is the unwillingness to recognize the fact
that the courts, with the consent of the State, have been
constantly in the practice of applying, in the decision of
controversies, rules which were not in existence and were,
therefore, not knowable by the parties when the causes of
controversies occurred. It is the unwillingness to face the
certain fact that courts are constantly making ex post facto
law.

The unwillingness is natural, particularly on the part of

the courts, who do not desire to call attention to tile fact that
they are exercising a power which bears so unpopular a name,
but it is not reasonable. Practically in its application to actual
affairs, for most of the laity, the Law, except for a few crude
notions of the equity involved in some of its general
principles, is all ex post facto. When a man marries, or enters
into a partnership, or buys a piece of land, or engages in any
other transaction, he has the vaguest possible idea of the Law
governing the situation, and with our complicated system of
Jurisprudence, it is impossible it should be otherwise. If he
delayed to make a contract or do an act until he understood
exactly all the legal consequences involved, the contract
would never be made or the act done. Now the Law of which a
man has no knowledge is the same to him as if it did not exist.

Again, the function of a judge is not mainly to declare

the Law, but to maintain the peace by deciding controversies.
Suppose a question comes up which has never been Decided--

22
and such questions are more frequent than persons not
lawyers generally suppose, --the judge must decide the case
somehow; he will properly wish to decide it not on whim, but
on principle, and he lays down some rule which meets
acceptance with the courts, and future cases are decided in
the same way. That rule is the Law, and yet the rights and
duties of the parties were not known and were not knowable
by them. That is the way parties are treated and have to be
treated by the courts; it is solemn juggling to say that the
Law, undiscovered and undiscoverable, and which is finally
determined in opposite ways in two communities separated
only by an artificial boundary, has existed in both
communities from all eternity. I shall recur to this matter
when we come to consider the topic of Judicial Precedents.

Sources of Law: A Brief

Law, as it exists today, is derived from various sources which
according to Holland are Customs, Religion, Equity, Judicial
Decisions, Scientific Discussion and Legislation.

Customs:

Customs constitute a very powerful source of law. Social life

of people in the primitive society was regulated according to
certain customs, practices, traditions and usages. Customs
originate in imitation.

When a person invents a particular method of doing a thing

and is imitated by others, a custom gradually comes into
existence. A custom is formed in much the same way as path
is formed across a field.

23
These customs and usages had found acceptance in the
primitive society because they were held to be conducive to
public order or justice. These customs descended down from
generation to generation.

With the lapse of time, they developed a very strong hold over
the psychology of the people. In modern times when law
began to be written down, all these customs had to be codified
amalgamate in the law proper. The best example of customary
law is furnished by the Common Law of England.

Religion:

The influence of religion in early society was especially strong

and the social conduct of the people was regulated according
to the religious principles because society in almost every
country was dominated by the priestly class who were law
givers.

The Brahmins were the dominating class in the Hindu

Community for several centuries. The Pontiffs held sway in
ancient Rome and so did the ecclesiastics in England. Religion
was a necessary supplement to the prevalent customs.

With the passage of time, the religious principles went deep

into human psychology. The modern jurists had to incorporate
the religious principles in the body of law.

In India we have got the Mohammedan Law based on the

Quran, the Hindu law based on the Code of Manu and
Christian Law based on the Bible. These laws regulate
matrimonial relations and problems arising out of inheritance.

24
Equity:

Judges in every country have contributed a lot towards the

process of law-making. Judges make new laws in the course of
their judicial decisions. They cannot always interpret different
cases according to the existing law. Sometimes a novel ease
about which existing laws are silent may come up before a
judge.

The judge cannot dispose of the case without giving any

judgment. In such a situation, the judge will give his judgment
by consulting his own sense of justice and fair-play. Such
judgments give rise to the laws of equity which assume the
force of well- recognized law.

In England, there is the Court of Chancery which is the

supreme organization for the administration of equity. The
Court is said to be the keeper of the King's or Queen's
conscience and is authorized to remedy injustice according to
equity.

The Indian courts have also been authorized to decide cases

according to equity in the absence of positive law on the
point. We can conclude with the remarks of Gilchrist that
"equity as a source of law, arises from the fact that the
positive law, as thc world advances, tends to become
unsuitable for new conditions.

Equity is an informal method of making new laws or altering

old laws; depending on intrinsic fairness or equality of
treatment."

25
Adjudications or Judicial Decisions:

Adjudication means the decisions of a court. Judges while

deciding cases give their own interpretation to a law. They
clarify ambiguities and obscurities and give it a new meaning
and a new spirit.

These decisions especially when they emanate from eminent

judges, serve as precedents for further cases of a similar
nature. These judicial precedents or case made-laws are as
good as law proper.

In England, a judicial precedent is cited with as much

confidence as an Act of Parliament. The Common Law of
England is mainly judge- made law. It developed through a
long period of time and is based on numerous judgments
given in the past by the judges of the King's Courts. In my
project I shall focus on Judicial Precedents as a source of law.

Commentaries of Eminent Jurists:

Legal authorities and eminent jurists write comments on the

existing laws. These comments arc published in the law books
and journals. They are valuable both for the lawyers and the
judges. These comments are referred to during discussions
over a particular case before a court of law.

The judgments are very often influenced by these comments.

As for example, the views of Coke and Blackstone have
actually influenced the legal system in England to a great
extent.

Although these comments arc mere legal arguments, yet these

opinions cannot be easily ignored since they throw a flood of

26
light on the spirit in which a particular law should be
interpreted.

As Gilchrist puts it, "The Commentator by collecting,

comparing and logically arranging legal principles, customs,
decisions and laws lays down guiding principles for possible
cases. He shows the omission and deduces Principles to
govern them".

Legislation:

In modem democratic times every country has its own

legislature. These legislatures are constantly repealing and
amending the old laws which have gone out of date. New laws
arc formulated to suit requirements of society. There is an
ever-widening scope of legislative activity.

Legislation is absorbing other sources of laws.. Hence in the

words of Woodrow Wilson, "All means of formulating laws
tend to be swallowed up in the one great, deep and
broadening sense, legislation.

" The legislatures codify and systematize the existing law and
remove ambiguities, lacunae and defects as come to their
notice. Customs, religion and equity are no longer important
sources of laws.

The judges also have less scope these days of making addition
to the law as legislatures are there to remove the defects in
the existing law and to reenact legislation declared null and
void by the courts in a form which is intra vires.

The commentaries of eminent jurists too arc not regarded

today as important except that they may provide suggestions

27
promoting new legislation to Government in certain specific
matters.

Legislatures today are very prolific in enacting new laws as

the modem states have assumed a large variety of functions
and have enlarged their sphere of activities.

Oppenheim on sources of law:

In the opinion of Oppenheim, there are not many sources of

laws but there is only one source of law and it is the common
consent of community.

According to him, customs, religion, adjudication, equity etc,

are not, strictly speaking, so many sources of laws. Every law
is based on the common consent of the people and this
common consent is expressed in different channels variously
known as customs, religion, adjudication, equity etc. These
merely mark out the different stages in the development of
law.

Precedents as a source of law

Judicial Precedents are an important source of law. They have

enjoyed high authority at all times and in all countries. This is
particularly so in the case of England and other countries
which have been influenced by English Jurisprudence.

28
According to Salmond: “The great body of the unwritten law is
almost entirely the product of outside cases, accumulated in
an immense series of reports extending backwards with
scarcely a break to the reign of Edward the First at the close
of the 13th century…… In practise” if not in theory, the
common law of England has been created by the decisions of
English Judges.” The one reason why precedent occupies a
very high position in jurisprudence because the judges have
been experts in their line and consequently their decisions
have enjoyed high reputation.

However there are some writers who are of the view that
judicial precedent is not a source of law. It is merely evidence
of customary law. Savigny belongs to this school of thought.
To quote Stobbe: “Practice is in itself not a source of law; a
court can depart from its formal practice and no court is
bound to the practice of another. Departure from the practice
hitherto observed is not only permitted but required if there
are better reasons for another treatment of the question of the
law.”

Keeton rejects this view and holds that a judicial precedent is

a source of law. To quote him: “A judicial precedent is a
judicial decision to which authority has in some measure been
attached. It must be noted at once, however, that partly
because of the high status which judges occupy in political
and social organisation and partly because of the importance
of the issues which they decide, judicial decisions have at all
times enjoyed high authority as indications of the law.” Again,
“the English people have always looked to their judiciary as
the fount of the law and courts have made their province to

29
ensure that that fount should never run dry. They have
regarded the law as a comprehensive whole, capable of
indefinite application to special cases and possessing the
inherent quality of consistency. It is precisely this quality of
consistency which has enabled English people to accept
judge-made law without question as a natural element in
English law.” According to Thibaut: “If in any court a rule has
been frequently and constantly followed as law, that court
must follow these hitherto adopted rules as laws, whether
they relate to simple forms or to the substances to
controversies, if they do not contradict the statutes, but yet
only the points on which the former judgements agreed.
Coordinate courts do not bind each other with judgments but
upper courts do bind the lower, so far as an earlier practice
has not formed itself in the latter, and one ought not to treat
the opinions of jurists as equal to the practice of the courts,
although the former may, under certain circumstances, be of
importance as authorities.”

Blackstone writes: “For it is an established rule to abide by

former precedents, where the same points come again in
litigation: as well as to keep the scale of justice even and
steady and not liable to waver with every new judge’s opinion,
as also because the law in that case being solemnly declared
and determined, what before was uncertain, and perhaps
indifferent, has now become a permanent rule, which it is not
in the breast of any subsequent judge to alter or vary from,
according to his private sentiment.”

According to Cardozo: “In these days, there is a good deal of

discussion whether the rule of adherence to precedent ought

30
to be abandoned altogether, I would not go so far myself. I
think adherence to precedent should be the rule and not the
exception. I have already had occasion to dwell upon some of
the considerations that sustain it. To these I may add that the
labor of judges would be increased almost to the breaking
point if every past decision could be reopened in every case,
and one could not lay one’s own course of bricks on the secure
foundation of the courses laid by others who had gone before
him. Perhaps the constitution of my own court has tended to
accentuate this belief. We have had ten judges, of whom only
seven sit at a time. It happens again and again, where the
question is a close one, that a case which one week is decided
one way might be decided another way the next if it were then
heard for the first time. The situation would however be,
intolerable if the weekly changes in the composition of the
court were accompanied by changes in its rulings. In such
circumstances there is nothing to do except to stand by the
errors of our brethren of the week before, whether we relish
them or not. But I am ready to concede that the rule of
adherence to precedent, though it ought not to be abandoned,
ought to be in some degree relaxed. I think that when a rule,
after it has been duly tested by experience, has been found to
be inconsistent with the sense of justice or with the social
welfare, there should be less hesitation in frank avowal and
full abandonment. We have had to do this sometimes in the
field of constitutional law. Perhaps we should do so oftener in
fields of private law where considerations of social utility are
not so aggressive and insistent. There should be greater
readiness to abandon an untenable position when the rule to
be discarded may not reasonably be supposed to have
determined the conduct of the litigants, and particularly when

31
in its origin it was the product of institutions or conditions
which have gained a new significance or development with the
progress of the years.”1

Nature of Precedent

A precedent is purely constitutive and in no degree

abrogative. This means that a judicial decision can make a law
but cannot alter it. Where there is a settled rule of law, it is
the duty of the judges to follow the same. They cannot
substitute their opinions for the established rule of law. Their
function is limited to supplying the vacancies of the legal
system, filling up with new law, the gaps that exist in the old
and supplementing the imperfectly developed body of legal
doctrine.

Authority of Precedent

The reason why a precedent is recognized is that a judicial

decision is presumed to be correct. That which is delivered in
judgment must be taken for established truth. In all
probability, it is true in fact and even if it is not, it is expedient
that it should be held to be true. The practice of following
precedents creates confidence in the minds of the litigants.
Law becomes certain and known, and that in itself is a great
advantage. It is conducive to social development,
administration of justice becomes even handed and fair.
Decisions are given by judges who are experts in the field of
law.

1
Pp. 149-51, The nature of Judicial Process.

32
According to Jesel, MR.: “If I find a long course of decisions by
inferior courts acquiesced which have become part of the
settled law, I do not think it is the province of the appeal court
after a long course of time to interfere, because most
contracts have been regulated by those decisions. There is
another consideration which always has weight with me.
When the law is settled, it gets into the text books which are a
very considerable guide to practitioners.” Again, “where a
series of decision of inferior courts have put a construction on
an Act of Parliament and have thus made a law which we men
follow in their daily dealings, it has been held, even by the
House of Lords, that it is better to adhere to the course of the
decisions than to reverse them, because of the mischief that
would result from such a proceeding. Of course that requires
two things, antiquity of decisions and the practice of mankind
in conducting their affairs.”

According to Dr. Julius Stone: “Precedent had played and will

continue to play an important part in common law judicial
achievement. In the first place precedents present for the
instant case a rapid if incomplete review off social contracts
comparable to the present, and of a rule thought suitable for
those context by other minds after careful inquiry. In the
second place, precedents serve to indicate what kind of result
would be reached if a particular premises or category is
chosen for application in the instant case, and permit
comparison with the results if some other premises or
category is adopted, either drawn from other cases, or
judicially invented. In Haseldine v. Daw the common carrier
cases gave the court a ready view of the results for the lift
passengers if that were the analogy followed, as well as of the

33
contexts in which courts in the past had regarded such results
as just for an inquired plaintiff. The case on occupiers of
premises afforded another glimpse of other results deemed
just in another context. But the court had still to make up its
mind that it wished to reach one or other result, or some
result quite different from either, in the context that was
actually before it in Haseldine v. Daw . a good judge is the
one who is the master, not the slave of the cases.”

Circumstances which destroy the binding

force of precedent

The operation of precedent is based on the legal presumption

that judicial decisions are correct. A matter once decided is
decided once for all. What has been delivered in a judgment
must be taken to be an established truth. In all probability, it
is true in fact. Even if it is not, it is expedient that it should be
held as true. However, there are circumstances which destroy
or weaken the binding force of a precedent. Those are
exceptions to the rule f binding force of precedents.

(i) Abrogated Decision.- A decision ceases to be binding if a

statute or statutory rule is inconsistent with it is
subsequently enacted, or if it is reversed or overruled
by a higher court. Reversal occurs when the same
decision is taken on appeal and is reserved by the
appellate court. Overruling occurs when the higher
court declares in another case that the precedent case
was wrongly decided and so is not to be followed. As
overruling is the act of superior authority, a case is
not overruled merely because there exists some later

34
 opposing precedent of the same court or a court of
coordinate jurisdiction. In such cases a court is free to
follow either precedent. When a case is overruled in
the full sense of the word, the courts become bound
by the overruling case. Overruling needs to be
express, but may be implied. Until the 1940’s the
practice of the court of appeal was to follow its own
previous decision even though it was manifestly
inconsistent with a later decision of the House of
Lords provided it had been not expressly overruled. In
India, the twenty fourth amendment of the
constitution of India was passed to nullify the decision
of the supreme court of India in the case of Golak
Nath. Likewise, the twenty fifth amendment of the
constitution sought to remedy the situation resulting
from the decision of the Supreme Court in the bank
nationalisation case.
(ii) Affirmation or reversal on a different ground- It
sometimes happens that a decision is affirmed or
reversed on appeal on a different point. Suppose a
case is decided in the Court of Appeal on ground A
and then goes on appeal to the House of Lords which
decides it on ground B, nothing being said upon A.
The view of Jessel M.R., is that where the judgement
of the lower court is affirmed on the grounds, it is
deprived of all authority. The true view is that a
decision either affirmed or reversed on another point
is deprived of any absolute binding force which it
might otherwise have had, bat it remains an authority
which may be followed by a court that thinks the
particular point to have been rightly decided.

35
(iii) Ignorance of Statute- A precedent is not binding if it
was rendered in ignorance of a statute or a rule
having the force of a statute, ie. Delegated
Legislation. Similarly a court may know of the
existence of the statute or rule yet not appreciate its
relevance to the matter in hand. Such mistake also
vitiates the decision. Even a lower court can refuse to
follow a precedent on this ground.

(iv) Inconsistency with earlier decisions of Higher Court-

A precedent loses its binding force if the court that
decided it overlooked an inconsistent decision of a
higher court. Thus, if the High court of Delhi decides
a case in ignorance of a decision of the Supreme
Court of India, the decision of the High Court of Delhi
is not a precedent and hence is not binding on any
lower court. Such a decision is said to be per
incuraium.

(v)Inconsistency between the earlier decisions of the same

rank- A court is not bound by its own previous
decisions that are in conflict with one another. Where
authorities of equal standing are irreconcilably in
conflict, a lower court has the same freedom to pick
and choose between them.

(vi) Precedents sub silentio or not fully agreed- When a

particular point involved in a decision is not taken
notice of and is not argued by a counsel, the court
may decide in favour of one party, whereas if all the
points had been put fourth, the decision may have
been in favour of the other party. Hence a rule is not

36
 an authority on the point which has not been argued
and this point is said to pass sub silentio. This rule
can be traced in English law to 1661 when in famous
English case, the counsel said, “a hundred precedents
sub silentio are not material,” and the judge agreed.

In K. Balakrishna Rao v. Haji Abdulla Sait, the

Supreme Court observed that the binding force of a
precedent does not depend on whether a particular
argument was considered therein or not, provided the
point with reference to which an argument was
subsequently advanced was actually decided by the
Supreme Court.2

(vii)Decision of equally divided courts- Where an appellate

court is equally divided, the pratice is to dismiss the
appeal. This problem is not a serious one today as it is
the usual practice of most appellate courts to sit with
an uneven number of judges like three or five.
(viii) Erroneous Decisions- Decisions may also err by being
founded on wrong principles or by conflicting with
fundamental principles of common law. Logic
suggests that courts should be free to disregard those
decisions, but practical considerations may require
that perfection may be sacrificed to certainty.
However, courts may overrule erroneous decisions of
long standing which ma involve injustice to the citizen
or which concern an area of the law such as taxation
where it is important for the citizen that the courts
should establish what the correct law is.

2
(1980) 1 SCC 321

37
 The Supreme Court of India has also differed from its
previous decisions in several cases. In Bengal
Immunity Co. Ltd v. State of Bihar, 3 the Supreme
Court held that there is nothing in our constitution
which prevents the Supreme Court from departing
from a previous decision if it is convinced of its error
and its baneful effect on the general interests of the
public. However, the Supreme Court should not lightly
dissent from a previous pronouncement of the court.
Its power of review must be exercised with due care
and caution and wholly fro advancing the public well
being in the light of the surrounding circumstances of
each case brought to its notice but it is not right to
confine its power within rigidly fixed limits. If on a re-
examination of the question, the Supreme Court
comes to the conclusion that the previous majority
decision was plainly erroneous, it will be its duty to
say so and not to perpetuate its mistake even when
one learned judge who was a party to the previous
decision, considers it incorrect on further reflection. It
should do so all the more readily when its decision is
on a constitutional question and its erroneous
decision has imposed illegal tax burden on the
consuming public and has otherwise given rise to
public inconvenience or hardship .

3
AIR 1955 SC 661

38
Circumstances which increase the binding
force of precedent

There are circumstances which tend to increase the authority

of a precedent. The number of judges constituting the Bench
and their eminence is a very important factor in increasing
the authority of a precedent. To some extent, the eminence of
the lawyers who argued the case enhances the authority of a
precedent a unanimous decision carries more weight.
Affirmation, approval or following by other courts, especially
by a higher tribunal, adds to the strength of a precedent. And
likewise, if a precedent is not followed for a long time, its
authority starts deteriorating.

Do Judges make law?

There are two contrary views on this point. The first view is
that judges only declare the existing law. The second view is
that they make law.

Declaratory Theory- is concerned with the first view.

According to this theory, judges are no more than the
discoverers of law. They discover the law on a particular point
and declare it. This view has been supported by many writers,
jurists and judges.

Blackstone wrote: “The judges are the depositaries of the

laws; the living oracles who must decide in all cases of doubt
and who are bound by an oath to decide according to the law
of the land. These judicial decisions are the principal and most
authoritative evidence that can be given of the existence of
such a custom as shall form a part of the common law… A

39
Judge is sworn to determine, not according to his private
judgement but according to the laws and customs of the land;
not delegated to pronounce a new law but to maintain and
explain the old one.”

Lord Esher says in Willis v. Baddeley: “There is in fact no

such thing as judge made law, for judges do not make the law
though they frequently have to apply the existing law to
circumstances as to which it has not previously been
authoritatively laid down that such law is applicable.”

In Rajeshwar Prasad v. State of West Bengal 4, Justice

Hidayatullah observed: “No doubt, the law declared by this
court binds courts in India, but it should always be
remembered that this court does not enact.”

The Declaratory authority has been criticised by Bentham as a

wilful falsehood having for its object the stealing of legislative
power by and for hands which could not or durst not, openly
claim it. John Austin called this theory “the childish fiction
employed by judges that judiciary or common law is not made
by them, but is a miraculous somebody made by nobody,
existing, I suppose, from eternity and merely from time to
time by judges.”

Judges as Law makers- The other view is that judges make

laws. A number of jurists have supported this view. Lord

4
AIR 1965 SC 1887

40
Bacon said that the points which the judges decide in cases of
first impression are a distinct contribution to the existing law.

Sir Frederick Pollock, the distinguished English Jurist, wrote:

“No intelligent lawyer would at this day pretend that the
decisions of the courts do not add to and alter the law. The
courts, themselves, in the course of the reasons given for
those decisions constantly and freely use the language
admitting that they do.”

Speaking on the role of judges, President Roosevelt in his

message of 8 December, 1908 to the congress of the United
States, said: “The chief-law makers in our country may be, and
often are, the judges, because they are the final seat of the
authority. Everytime they interpret contract, property, vested
rights, due process of law, liberty, they necessarily enact into
law parts of the system of social philosophy; and as such
interpretation is fundamental, they give direction to all law
making.”

Role of Judges

1. The role of judges in creating law is fundamental to the

English Legal System. Parliament is the supreme lawmaker in
the legal system, but judges have to interpret the law and they
also create new points of law which are followed in later cases
already heard and decided upon by judges.

2. There are two jobs to be done when deciding a case:

 The material facts of the case must be identified and

analysed.
 The law must be applied to those facts.

41
3. The application of law to a set of MATERIAL FACTS is the
task of the judge, and this is what creates case law. Once this
has occurred, any case which has similar material facts will be
treated in the same way by later courts. This produces
FAIRNESS for the defendant since they are treated in the
same way as previous defendants and it also provides some
PREDICTABILITY for later potential offenders. They will know
what to expect.

4. Once the judge or judges have decided the line they are
going to take, they prepare a written document which outlines
their thinking and gives their decision. All views are put into
the document, so if a judge does not agree with the findings,
his or her reservations can be put down. This is known as a
DISSENTING VIEW. Even dissenting views are useful. Judges
in later cases may consult all relevant views when interpreting
a case.

It is submitted that both the above views regarding the

function of the judges contain only a partial truth. Whether
the judges make or declare the law depends on the nature of
the particular legal system. In common law countries, the role
of the judges has been greatly creative in countries where the
law has been codified, the role of the judges has been
comparatively les creative. However, the conclusion is that the
difference between the two is not very great. Though these
words are not synonymous, the difference is only that of
degree. Declaring does not mean something mechanical.
Similarly, making does not mean that judge make laws in the
sense in which legislature make laws. A judge merely works
upon the material given to him by the legislature. He gives life

42
to the skeleton of law. He adapts it to the changed conditions
and causes its dynamic growth. They develop the law, if not
promulgate it.

Kinds of Precedents

Authoritative Precedents
Meaning: An authoritative precedent, as the name itself
implies, comes from the superior court, and is followed its
subordinate courts.
A judicial precedent of the supreme court of India is
authoritative for all the court in India. It must be followed by
the inferior courts whether they approve of it or not. They are
bound to follow it. A judicial precedent of the Andhra Pradesh
high court is authorities in relation to other subordinate
courts in Andhra Pradesh.
An authority’s precedent has a legal claim, recognition,
influence and binding force on the inferior courts.
Authoritative precedents are legal sources of law.
Absolute Precedents are of two kinds, Absolute and
conditional.
In case of absolutely authoritative precedents they have to be
followed by the judges even if they do not approve of them.
They are entitled to implicit obedience.
In case of authoritative precedents having a conditional
authority, the courts can disregard them under certain
circumstances. Ordinarily they are binding, but under special
circumstances they can be disregarded. A conditional
precedent can be decided either by dissenting or overruling.

43
The view of Blackstone is that precedents must be
followed unless they are absurd or unjust. If a precedent
is erroneous, it can be disregarded. The maxim of the
law is cessante ratione legis cessat ipsa lex which means
that when the reason for any particular law ceases so
does the law itself. A precedent can also be disregarded
in the interest of justice.

Persuasive Precedents
Meaning: persuasive precedent is one which the judges are
under no obligation to follow. A foreign judgment is a
persuasive precedent.
The judges peruse and interpret and take the assistance of
persuasive precedent, but they are not bound to follow it. A
decision of Tamil Nadu or Karnataka High Court in relation to
the Andhra Pradesh High Court is only persuasive.
A persuasive precedent has no legal claim, influence and
biding force. It depends for its influence upon its own merits.
Persuasive precedents are merely historical.

The doctrine of stare decisis

Professor Gall described it in the following terms:

The operation of the doctrine of stare decisis is best explained

by reference to the English translation of the Latin phrase.
“Stare decisis” literally translates as “to stand by decided
matters”. The phrase “stare decisis” is itself an abbreviation
of the Latin phrase “stare decisis et non quieta movere” which
translates as “to stand by decisions and not to disturb settled
matters”.

44
Basically, under the doctrine of stare decisis, the decision of a
higher court within the same provincial jurisdiction acts as
binding authority on a lower court within that same
jurisdiction. The decision of a court of another jurisdiction
only acts as persuasive authority. The degree of
persuasiveness is dependent upon various factors, including,
first, the nature of the other jurisdiction. Second, the degree
of persuasiveness is dependent upon the level of court which
decided the precedent case in the other jurisdiction. Other
factors include the date of the precedent case, on the
assumption that the more recent the case, the more reliable it
will be as authority for a given proposition, although this is
not necessarily so. And on some occasions, the judge’s
reputation may affect the degree of persuasiveness of the
authority.5
Glanville Williams describes the doctrine in practical terms:
What the doctrine of precedent declares is that cases must be
decided the same way when their material facts are the same.
Obviously it does not require that all the facts should be the
same. We know that in the flux of life all the facts of a case
will never recur, but the legally material facts may recur and
it is with these that the doctrine is concerned.
The ratio decidendi [reason of deciding] of a case can be
defined as the material facts of the case plus the decision
thereon. The same learned author6 who advanced this
definition went on to suggest a helpful formula. Suppose that
in a certain case facts A, B and C exist, and suppose that the
5
 Gerald L. Gall, The Canadian Legal System, 2nd ed. (Toronto: Carswell Legal Publications, 1983) at
220. This text includes an excellent bibliography on this subject including a lengthy list of cases and
articles.
6
The reference is to Goodhart, “Determining the Ratio Decidendi of a Case”, Essays in Jurisprudence
and the Common Law (1931) 1.

45
court finds that facts B and C are material and fact A
immaterial, and then reaches conclusion X (e.g. judgment for
the plaintiff, or judgment for the defendant). Then the
doctrine of precedent enables us to say that in any future case
in which facts B and C exist, or in which facts A and B and C
exist the conclusion must be X. If in a future case A, B, C, and
D exist, and the fact D is held to be material, the first case will
not be a direct authority, though it may be of value as an
analogy.7

That the doctrine of stare decisis is related to justice and

fairness may be appreciated by considering the observation of
American philosopher William K. Frankena as to what
constitutes injustice:
The paradigm case of injustice is that in which there are two
similar individuals in similar circumstances and one of them is
treated better or worse than the other. In this case, the cry of
injustice rightly goes up against the responsible agent or
group; and unless that agent or group can establish that there
is some relevant dissimilarity after all between the individuals
concerned and their circumstances, he or they will be guilty
as charged.8

The critics of the doctrine accept it as the general rule but

chafe under it when the staleness of old law leads to
unfairness and injustice. For example, Lord Denning, the
former Master of the Rolls has argued:

7
Glanville Williams, Learning the Law, 9th ed. (1973) at 67-68. See also S.M. Waddams, Introduction
to the Study of Law, 2nd ed. (Toronto: Carswell, 1983) at 102-118.

8
 William K. Frankena, Ethics, 2nd ed. (Englewood Cliffs, N.J.: Prentice-Hall Inc., 1973) at 49.

46
If lawyers hold to their precedents too closely, forgetful of the
fundamental principles of truth and justice which they should
serve, they may find the whole edifice comes tumbling down
about them. Just as the scientist seeks for truth, so the lawyer
should seek for justice. Just as the scientist takes his instances
and from them builds up his general propositions, so the
lawyer should take his precedents and from them build up his
general principles. Just as the propositions of the scientist fail
to be modified when shown not to fit all instances, or even
discarded when shown in error, so the principles of the lawyer
should be modified when found to be unsuited to the times or
discarded when found to work injustice.9

The doctrine of stare decisis as applicable to

India

The concept generally applies to the highest court of a

country like the House of Lords of U.K. (as it was earlier).

The Supreme Court in its recent decision Shanker Raju v.

Union of India explained this concept inter alia as under;
It is a settled principle of law that a judgment, which has held
the field for a long time, should not be unsettled. The doctrine
of stare decisis is expressed in the maxim “stare decisis et non
quieta movere”, which means “to stand by decisions and not
to disturb what is settled.” Lord Coke aptly described this in
his classic English version as “those things which have been
so often adjudged ought to rest in peace.” 

9
See Denning, supra, note 4 at 292.

47
The underlying logic of this doctrine is to maintain
consistency and avoid uncertainty. The guiding philosophy is
that a view which has held the field for a long time should not
be disturbed only because another view is possible. This has
been aptly pointed out by Chandrachud, C.J. in Waman Rao
v. Union of India,10 thus:
“… for the application of the rule of stare decisis, it is not
necessary that the earlier decision or decisions of
longstanding should have considered and either accepted or
rejected the particular argument which is advanced in the
case on hand. Were it so, the previous decisions could more
easily be treated as binding by applying the law of precedent
and it will be unnecessary to take resort to the principle of
stare decisis. It is, therefore, sufficient for invoking the rule of
stare decisis that a certain decision was arrived at on a
question which arose or was argued, no matter on what
reason the decision rests or what is the basis of the decision.
In other words, for the purpose of applying the rule of stare
decisis, it is unnecessary to enquire or determine as to what
was the rationale of the earlier decision which is said to
operate as stare decisis.”
In Manganese Ore (India) Ltd. v. Regional Asstt. CST,11 it
was opined that the doctrine of stare decisis is a very valuable
principle of precedent which cannot be departed from unless
there are extraordinary or special reasons to do so.
In Ganga Sugar Corpn. v. State of U.P., 12 this Court
cautioned that, “the Judgments of this Court are decisional

10
(1981) 2 SCC 362 at pg. 392
11
(1976) 4 SCC 124, at page 127
12
(1980) 1 SCC 223 at page 233

48
between litigants but declaratory for the nation.” This Court
further observed:
“. … Enlightened litigative policy in the country must accept
as final the pronouncements of this Court… unless the subject
be of such fundamental importance to national life or the
reasoning is so plainly erroneous in the light of later thought
that it is wiser to be ultimately right rather than to be
consistently wrong. Stare decisis is not a ritual of convenience
but a rule with limited exceptions.”
In Union of India v. Raghubir Singh,13 this Court has
enunciated the importance of doctrine of binding precedent in
the development of jurisprudence of law: 
“Taking note of the hierarchical character of the judicial
system in India, it is of paramount importance that the law
declared by this Court should be certain, clear and consistent.
It is commonly known that most decisions of the courts are of
significance not merely because they constitute an
adjudication on the rights of the parties and resolve the
dispute between them, but also because in doing so they
embody a declaration of law operating as a binding principle
in future cases. In this latter aspect lies their particular value
in developing the jurisprudence of the law.
The doctrine of binding precedent has the merit of promoting
a certainty and consistency in judicial decisions, and enables
an organic development of the law, besides providing
assurance to the individual as to the consequence of
transactions forming part of his daily affairs. And, therefore,
the need for a clear and consistent enunciation of legal
principle in the decisions of a court.”

13
(1989) 2 SCC 754, at page 766

49
In Krishena Kumar v. Union of India,14 this Court has
explained the meaning and importance of sparing application
of the doctrine of Stare Decisis:
“Stare decisis et non quieta movere. To adhere to precedent
and not to unsettle things which are settled. But it applies to
litigated facts and necessarily decided questions. Apart from
Article 141 of the Constitution of India, the policy of courts is
to stand by precedent and not to disturb settled point. When
court has once laid down a principle of law as applicable to
certain state of facts, it will adhere to that principle, and apply
it to all future cases where facts are substantially the same. A
deliberate and solemn decision of court made after argument
on question of law fairly arising in the case, and necessary to
its determination, is an authority, or binding precedent in the
same court, or in other courts of equal or lower rank in
subsequent cases where the very point is again in controversy
unless there are occasions when departure is rendered
necessary to vindicate plain, obvious principles of law and
remedy continued injustice. It should be invariably applied
and should not ordinarily be departed from where decision is
of long standing and rights have been acquired under it,
unless considerations of public policy demand it.”
In Union of India & Anr. v. Paras Laminates (P) Ltd, 15
this Court observed as under :-
“It is true that a bench of two members must not lightly
disregard the decision of another bench of the same Tribunal
on an identical question. This is particularly true when the
earlier decision is rendered by a larger bench. The rationale
of this rule is the need for continuity, certainty and

14
(1990) 4 SCC 207, at page 233
15
(1990) 4 SCC 453 at pg. 457

50
predictability in the administration of justice. Persons affected
by decisions of tribunals or courts have a right to expect that
those exercising judicial functions will follow the reason or
ground of the judicial decision in the earlier cases on identical
matters”.
It has been opined that in the absence of a strict rule of
precedent, litigants would take every case to the highest
court, in spite of a ruling to the contrary, in the hope that the
decision may be overruled.

In Hari Singh v. State of Haryana, 16 this Court stated the

importance of consistent opinions in achieving harmony in
Judicial System:
“It is true that in the system of justice which is being
administered by the courts, one of the basic principles which
has to be kept in view, is that courts of coordinate jurisdiction,
should have consistent opinions in respect of an identical set
of facts or on a question of law. If courts express different
opinions on the identical sets of facts or question of law while
exercising the same jurisdiction, then instead of achieving
harmony in the judicial system, it will lead to judicial
anarchy.” 

In Tiverton Estates Ltd. v. Wearwell Ltd., 17 Sorman L. J.,

while not agreeing with the view of Lord Denning, M.R. about
desirability of not accepting previous decisions, said as
follows:
“I decline to accept his lead only because I think it damaging
to the law to the long term—though it would undoubtedly do

16
(1993) 3 SCC 114, at page 120
17
(1975) Ch 146 at page 371

51
justice in the present case. To some it will appear that justice
is being denied by a timid, conservative adherence to judicial
precedent. They would be wrong. Consistency is necessary to
certainty—one of great objectives of law.”

The second observation I wish to make is, the doctrine of

binding precedent has the merit of promoting certainty and
consistency in judicial decisions. The pronouncement of law
by a larger Bench of the this Court is binding on a Division
Bench of this court, especially where the particular
determination by this Court not only disposes of the case, but
also decides a principle of law. We further add that it would
be inappropriate to reagitate the very issue or a particular
provision, which this Court had already considered and
upheld.

Doctrine of Precedent: Pros and Cons

A number of commentators have explored the pros and cons

of the doctrine of stare decisis. Supporters of the system,
argue that obeying precedent makes decisions "predictable."
Another advantages of this doctrine, as mentioned earliar is
that it brings certainty, stability and consistency in law. It also
saves time and energy of judges as they are not required to
determine the same question of law over and over again once
it has been settled. As noted by Bodenheimer, the doctrine
also plays a role in curbing arbitrariness on the part of judges
as they are bound to follow established precedents thus
preventing bias and error. The doctrine brings flexibility in
law and law is shaped according to the social, economic and
other circumstances. However, critics argue  that stare

52
decisis is an application of the argument from
authority logical fallacy and can result in the preservation and
propagation of cases decided wrongly. Another argument
often used against the system is that it isundemocratic as it
allows unelected judges to make law. A counter-argument (in
favor of the concept of stare decisis) is that if
the legislature wishes to alter the case law (other than
constitutional interpretations) by statute, the legislature is
empowered to do so. Critics sometimes accuse particular
judges of applying the doctrine selectively, invoking it to
support precedents which the judge supported anyway, but
ignoring it in order to change precedents with which the
judge disagreed.
Regarding constitutional interpretations, there is concern that
over-reliance on the doctrine of stare decisis can be
subversive. An erroneous precedent may at first be only
slightly inconsistent with the Constitution, and then this error
in interpretation can be propagated and increased by further
precedents until a result is obtained that is greatly different
from the original understanding of the Constitution. Stare
decisis is not mandated by the Constitution, and if it causes
unconstitutional results then the historical evidence of
original understanding can be re examined. In this opinion,
predictable fidelity to the Constitution is more important than
fidelity to unconstitutional precedents. Another factor is that
the doctrine of binding precedent can in a sense hinder the
development of law. Society is not static and there are
changes in social, economic and other circumstances with
time. Changed circumstances may require a different
interpretation of law.

53
 Per incuriam

Per incuriam means that a court failed to take into account all

the relevant and vital statutes or case authorities and that this
had a major effect on the decision. In loose sense, it means
through
inadvertence or through want of care. The per incuriam rule
is a well-established technical rule; but you must be careful
here. Per incuriam does not simply mean the earlier court got
things wrong. It only means there was a significant oversight.
A decision is per incuriam need not be relied upon as
precedent.
The court is not bound by its own decisions found to have
been made per incuriam.The fact that the case being
examined had weaknesses in argument, or in the judgment,
does not make the decision per incuriam. Thus
in Morelle vWakeling, Lord Evershed MR limited the use of
the per incuriam rule to cases where:
·         there was ignorance of authority which would have been
binding on the court; and
·         that ignorance led to faulty reasoning.
The and is very important. It means, it was observed during
this case that as a general rule, the only cases in which
decisions have been held to be per incuriam are those given in
ignorance or forgetfulness of some inconsistent statutory
provision or of some authority binding on the courts
concerened, so that in such cases, some features of the
decisions or some step in the reasoning on which it is based is
found on that account to be demonstrably wrong. A similar
view was taken in Duke v.Reliance systems Ltd. Indian
courts have also expressed like opinions in this regard.

54
In Municipal Corporation of Delhi v. Gurnam Kaur, it was
held that decisions per incurium are those that have been
rendered in ignorance of the terms of the statute and of a rule
having the force of a statute. Raghavachari notes that in cases
where a court may have been aware of the decision but did
not refer to the same or did not appreciate its relevance would
be hit by per-incurium some commentators have also taken
the view that judgments which are the result of a manifest
error or step would also constitute per incuriam. In Sardari
lal Gupta v.Sri Krishna Agarwal, a decision was held to
be per incurium on the ground that it was based on English
law and had ignored the position in Indian law. As quoted in
Halsbury`s Laws of England, a decision should not be
considered to beper incurium, merely due to deficiencies on
behalf of parties, and merely as the best possible argument
has not been advanced. In State of Bihar v. Kalika kaur@
Kalika Singh, it was noted that unless it is a glaring case of
obtrusive omission, it is not reasonable to depend upon the
principle of per incurium judgments.

Sub Silentio

It is a latin word which means under silence or without any

notice being taken. Precedents that pass sub silentio are of
little or no authority. This is an another exception to the
binding precedent. A judgment said to be sub silentio when
either a propostion was not the subject matter of argument
during the hearing or discussion in the judgment or the
proposition was assumed to be correct and the court acted
upon that assumption. In Muncipal Corporation of
delhi v. Gurnam Kaur , it was observed that, “ A decision

55
passes subsilentio, in the technical sense that has come to be
attached to that pharse, when the particular point of law
involved in the decision is not perceived by the court or
present to its mind”. For instance in a recent case, State of
U.P. and ors. v. Jeet S. Bist, it was observed that in the
decision in All India Association and ors. v. Union of
India, while directions were given, there was no discussion on
whether such direction s could be validly given by the court
and thus the decision was found to have been passed sub
silentio. If, however, the proposition was discussed at the time
of arguments or in the judgment and thereafter a decision was
reached, the same could not be said to be sub silentio English
courts have in cases held that even an inferior court can
ignore the decision of a superior court on the basis of the sub
silentio doctrine if the conditions are satisfied.

Doctrine of Prospective over Ruling

Although the doctrine of precedent is the normal course

followed, decisions that are erroneous or that  do not hold
good in view of challenged circumstances, may be overruled
by higher forums. Prof. Laksminath notes that a decision may
be overruled where it is recent or there is a divided opinion,
the opinion is erroneous, the decision is unclear, causes in
convenience and hardship, the error in the prior decision
cannot be easily corrected by the legislative process or the
decision is vague.once overruled, a prior decision is no longer
a binding precedent. However, if a precedent is overruled,
this may lead to the re opening of old disputes on the ground
of change in the legal position and consequently, multiplicity
of proceedings. By the application of this doctrine, changes in

56
the position of law that are laid down by the court are made
applicable only prospectively from the date that the change in
law has been brought about by the court or from any other
date specified by the Court so as not to disturb past matters
that have been finally settled.
The doctrine of prospective overruling which is a feature of
American Jurisprudence and an exception to the normal
principles of law, was imported and applied for the first time
in LC Golaknath v. State of Punjab which overruled its
earliar decisions in Shakari Prasad`s case and Sajjan
Singh`s case by which the first and seventeenth
amendments. The court does not clearly defined the doctrine
during this case. But court limited the scope of application of
this doctrine by laying down “(1) The doctrine of prospective
overruling can be invoked in matters arising under the
constitution. (2) It can be applied only by the highest court of
the country i.e, Supreme Court as it has Constitutional
Jurisdiction to declare law binding on all courts in India. (3)
The scope of the retroactive operation of the law declared by
the Supreme court superseding its earliar decisions is left to
its discretion to be moulded in accordance with thee justice of
the cause or matter before it”.
The doctrine has been adopted to avoid multiplicity of
proceedings, and avoid uncertainity in law. It was observed in
the case of M.A. Murthy v. State of Karnataka that the
doctrine of prospective overruling was a part of the
constitutional cannons of interpretation.
While Golak Nath`s case, certain guidelines have been laid
down as regards the application of doctrine of prospective
overruling, as observed in Somaiya Organics India
Ltd.v. State of U.P.

57
The parameters have not been adhered to in practice. It may
be mentioned here that unless the court expressly makes the
operation of a decision of a decision prospective, it will be
retrospective in operation.

This doctrine has been applied in service matters.

In Managing Director, ECIL v.B.Karunakar, the view was
adopted. Prospective over ruling is a part of the principles of
constitutional cannon of interpretation and can be resorted to
by the Supreme Court while superceding the law declared by
it earlier. It is a device innovated to avoid reopening of settled
issues, to prevent multiplicity of proceedings and to avoid
uncertainty and avoidable litigation. In other words action
taken contrary to the law declared prior to the date of
declaration are validated in larger public interest. The law as
declared applies to future cases. It is for the Supreme Court
to indicate as to whether the decision in question will operate
prospectively. In other words there shall be no prospective
over ruling, unless it is so indicated in the particular decision.
It is not open to be held that the decision in a particular case
will be prospective in its application by application of the
doctrine of prospective overruling. The doctrine of binding
precedent helps in promoting certainty and consistencies in
judicial decisions and enables an organic development of the
law besides providing assurance to the individual as to the
consequences of the transaction forming part of the daily
affairs.
So. the concept of Prospective Overruling, as the title of the
project reflects, is a deviation from the principle of retroactive
operation of a decision and thus, a deviation from the
traditional Blackstonian principle too. To illustrate, in very

58
simple words, the implication of the invocation of the doctrine
is that the decision of such a case would not have
retrospective operation but would operate only in the future,
i.e., have only prospective operation..

Ratio Decidendi

The ratio decidendi (reason of deciding) of a case can be

defined as the material facts of the case plus the decision
thereon.
In Halsbury’s Laws of England it has been observed that ratio
decidendi are the general reasons given for a decision or the
general grounds upon which it is based, detached oe
abstracted from specific peculiarities of a particular case
which gives the rise to a particular decision. Similar
observations have been made in Krishna Kumar v. Union of
India. Broadly there are two tests for determining the ratio of
the case, i.e, the Wambaugh test and Goodhart test.
According to the Wambaugh test, also known as the reversal
test, the proposition of law put forward by the judge should be
reversed or negated and if the reversal would alter the actual
decision, that proposition is the ratio decidendi of the case.
The Goodhart test involves taking into account facts treated
as material by the judge who decided the case cited as
precedent.

Glanville Williams is of similar view that the ratio decidendi of

a case can be defined as the material facts of the case plus the
decision thereon. He describes the doctrine in practical terms;
‘What the doctrine of precedent declares is that cases must be
decided the same way when their material facts are the same.

59
Obviously it does not require that all the facts should be the
same. We know that in the flux of life all the facts of a case
will never recur, but the legally material facts may recur and
it is with these that the doctrine is concerned’.
In Municipal Corporation of Delhi v. Gurnam Kaur, the
court took the observations from the House of Lords Decision
in F.A. and A.B. Ltd. v. Lupton, that what constitutes a
binding precedent in a  case is the ratio decidendi which is
almost always to be ascertained by an analysis of the material
facts. 

The process of determining the ratio decidendi is a correctly

thought analysis of what the court actually decided –
essentially, based on the legal points about which the parties
in the case actually fought. All other statements about the law
in the text of a court opinion – all pronouncements that do not
form a part of the court’s rulings on the issues actually
decided in that particular case (whether they are correct
statements of law or not),  are obiter dicta, and are not rules
for which that particular case stands.

Advantages and Disadvantages of Judicial

Precedent

Advantages

 Certainty - It creates certainty in the law and means

solicitors and barristers can advise their clients on the
probable outcome of their case.
 Fairness - Similar cases are treated in a similar way, this
is in the interests of justice and fairness.

60
  Time Saving - It saves court time as for most situations
there is already an existing solution.
 Law Development - it allows the law to develop alongside
society R v R (1991) - this case overturned a centuries
old legal principle that a man could not rape his wife.

Disadvantages

 Rigidity - The system is too rigid and does not allow the
law to develop enough.
 Injustice - The strict rules of judicial precedent can
create injustice in individual cases
 Slow Development - The law is slow to develop under the
system of judicial precedent. The law cannot be changed
until a case on a particular point of law comes before
one of the higher appellate courts.
 Confusion - Hundreds of cases are reported each year,
making it hard to find the relevant precedent which
should be followed.
 Complexity - The law is too complex with thousands of
fine distinctions.

Conclusion

While statutes and enactments of the legislature lay down the

general rules to be applied in the adjudication of disputes

61
between parties, the final authority for the interpretation of
those rules are the courts. The doctrine of stare decisis makes
the decisions of courts, usually the higher forums, binding on
subordinate courts in cases in which similar or identical
questions of law are raised before the court. The application
of this doctrine ensures that there is uniformity and certainty
in the law. It saves time and efforts of judges and helps in
preventing arbitrary action on the part of judges. The doctrine
thus ensures that at least over a certain period of time law
remain certain and people are able to conduct their business
in accordance with the prevalent interpretation of law. The
doctrine is thus in the interest of public policy. In India, the
doctrine is constitutionally recognized in respect of the
decisions of the Supreme Court which have been declared
under Article 141 to be binding on all courts and tribunals in
the country. This of course implies that even a single
pronouncement of the Supreme Court would be binding on
subordinate courts. However, as held in the Bengal Immunity
case, the decisions of the Supreme Court are not binding on
itself. It is only the reasons for deciding a case i.e., the ratio
decidendi  of the case which are binding on future courts.
There is no definite view as to how the ratio decidendi is to be
determined but there are a number of tests for its
determination of which some are the material facts test
proposed by Prof. Goodhart and the Reversal Test Proposed
by Wambaugh.
In order for the doctrine of stare decisis to be applicable,
there are two basic prerequisites, first that there must be
authentic reporting of decisions of courts. The second
requirement is an established hierarchy of courts. The
principle that the decisions of higher forums would be binding

62
on lower forums is referred to as vertical stare decisis while
that the decisions of forums would be binding on coordinate
or coequal benches is known as horizontal stare decisis. The
great value of the doctrine of stare decisis is that it provides
certainty. While the doctrine ofstare decisis is in the interest
of public policy, there are number of disadvantages of the
doctrine.  In view of the large numbers of pronouncements of
the Supreme Court and high courts it is difficult to locate all
the precedents. Also, even in case of an erroneous decision,
lower forums are bound to follow the decision as precedent.
Contrary decisions, of coordinate benches can create
confusion for lower forums. Another major disadvantage is
that if a strict interpretation is given to this doctrine, and
precedents are considered to be binding even on the highest
forums, it may hinder the development of law which is
necessary with changes in society. Stare decisis is not meant
to be an inflexible rule that hinders the development of law.
The Supreme Court appears to have taken this view in
the Mirzapur Moti Kureshi Kasab case that while stare
decisis is ordinarily to be adhered to, precedents can be
reconsidered in view of changed circumstances where there
are compelling reasons to do so. Thus, while the doctrine
of stare decisis should generally be adhered to, the same
should not be interpreted in a manner as to hinder the
development of law and the correction of erroneous decisions.
At the same time, the power to reconsider decisions cannot be
given forum and thus, it is appropriate that the power remains
with higher forums to the court that rendered the decision. 

63