14 Define Precedents?

Lay down the importance of the precedents as

the source of law. In what sense they are binding? Do the judges make
law?
INRODUCTION:- Precedents literally means previous judicial decision.
The decisions of the higher courts are binding on the lower courts. The
binding force of decision is called precedent. The precedents play an
important role in the development of law. It is the second important
source of law. First source is customs and the third source is legislation.
Sometimes act may be insufficient for the case or there may be an
vacuum or any thing missing in the act. Under these circumstances the
court can apply their own mind. These independent decisions becomes
precedents which are followed later on by the same & Lower courts. This
method of decision is also called as Judge made law. The English and
American law is mostly based upon the precedents. In India Art.141 of
Indian Constitution says that the decision of the higher courts shall be
binding upon the lower courts.
DEFINATION OF PRECEDENTS:- Precedents are a decision of a court
which is also called judicial decision. According to the Oxford University,
“Precedents means the previous decision case given by a court
according to rules.” Various writers have given the definition of
precedents is conduct of court adopted by the lower court in similar facts
and in similar circumstances in a case. Particularly the precedents
means the Judge made law. When the court gives its own ideas for
creating new rules. England, America and China also follow the previous
decisions as the source of law but the continent countries like Germany,
Japan does not accept the previous decisions as the source of law. The
method of taking precedents as source of law is called inductive method,
while the method of continental countries not following previous
decisions of the court is called deductive method.
MERITS OF PRECEDENTS:- Precedents are a very important source of
Law. They play an important role in the development of law, so they
have certain advantages as: 
1. Precedents show true respect to the ancestors means by adopting
the previous decision of the higher court to decide the present case, it is
a kind of respect to elders.
2. Precedents are suitable to the present situation means after some
times the circumstances of the society can change with the change of
time so the precedents they are more suitable and fit for the present time
and circumstances.
3. Precedents are based on customs means the law in the form of act
which based upon customs. Court  interprets the customs while
interpreting any act.
4. Precedents are convenient and easy to follow because they are
available in the form of written reports.
5. Precedents bring certainty in law, once decision is given in a case
there would be no need to repeat all precedents in any other case if it
resembles to the former case.
6. Precedents are the best guide for the Judges: They play an
important role in the judiciary because the  precedents are the guide
lines for the courts.
DEMERITS OF THE PROCEDENTS:-  lthough the demerits are very
few but these are as under :-
i) The decisions are given by the human beings while performing the
duties as judge, his decision may not be suitable to all persons who have
different mind and thinking. This will be a bad effect on Judiciary.
ii) Sometimes the decisions of the higher courts contradictory to each
other. It becomes harder to another judge to apply the same verdicts as
a precedents of higher court
iii) Sometimes the higher courts give a wrong decision and over pass
the important factors of the case due to one reason or the others.
PRECEDENTS ARE BINDING:- The precedents is an important source
of law. It is available in the form of judicial decisions. Now the question
arises that in what sense and when the precedents are binding o follow.
For the answer of this query different views have been given by the
various writers and jurists. No doubts the precedents is not binding like
warrant issued by a court of law.  It means precedent can be over ruled if
they are not right or appropriable to the case to be decided but warrant
has to be followed by all to whom it is applicable.
 It is not necessary that in the case which is to be decided the
circumstances and the facts must be the same as in resembling case.  If
the facts and the circumstances of the cases are materially similar then
the precedents or previous judicial decision is applied in the later cases
and are applied only in the form of ‘ratio decidendi’ of previous cases.
There are two parts of it :-
i) Ratio-decidendi:- means reasons which leads the court to reach
the decision. It is the main part of the case in judgement and the ratio
decidendi of the decision is binding in the form of precedent.
ii) Obits decidendi:-It is also a part of the decision which is irrelevant
to the facts and circumstances of the case. The judge takes into
consideration the social conditions, morality, principal of natural justice
that is why the Judges play an important role in the development of legal
system.
DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
CUSTOMS PRECEDENTS
Custom is primary source of law.
 Precedents are the secondary source of law.
Custom is given by people in general. Precedents are given by courts.
Custom is conduct adopted by people of society. Precedents is itself
complete certain, reasonable given by a competent court of the country.
Custom is based upon the reasoning of common people of the society.
Precedents are based upon the reasoning of a individual Judge or
very few judges.
Customs have more value then precedents and cannot be ignored. It
can be ignored if it gives un-justice.
                                        
                                     DO  JUDGES MAKE LAW:- 
There are two theories about this purpose one theory says that Judgs do
not make laws and other theory says that Judges in fact are the makers
of Laws. This theory is also known as declaratory Theory. According to
this the judges are not makers of the laws which they are already n
existence. The judges while deciding the case only applies the existent
and relevant customs for deciding the cases.
Judges are not the law makers:- The supporters of this theory (historical
school) says that all the laws are based upon customs.  The judges only
to explain these laws and customs.  According to Coke hate and
Dr.Carter, that the law is created by the King or by the Parliament or by
the Legislature bodies. Common Laws is based upon custom. The public
through the decision of courts come to know those customs.  It means
that Judiciary is not the maker of law. A case: Rageshwar Parsad v/s
state of West Bengal. It was held that, The court does not create Law.
                           ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory.  It says that the Judges are the
real makers of the law. They not only interpret or explain but also make
the law. According to Salmond:  who is the main supporters of this
theory says, “ That the decisions of the courts are a great contribution to
the legal system.” Dicay says that,  “that legal system is the best part of
the law of England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we cannot
ignored any of the above theories because both are correct and
complements to each other and both should be taken. No doubt that a
Judge can only to explain or to interprets the existing laws but at the
same time he also creates the new ideas, thoughts and gives new touch
ideas which play an important role in the development of law.
15 Discuss the main features of the ‘Pure Theory’ of Law. How it
resembles with Austin’s command theory. Critically examine the view of
Kelson given under pure theory of Law?
Introduction:- The Pure Theory of Law is given by Kelson. This theory is
also known as “Vienna School” because Kelson is the productor of
Vienna University. This theory resembles with Austin’s command theory
because in Kelson’s theory there must be sanction behind law. Austin
gave it the name of command theory and Kelson gave it the name of
grandnorm theory. Kelson is affected by local conditions, natural
condition and international condition. After studying all these conditions
he gave this theory of Law, which is known as pure theory of law and
grandnorm theory . 
Concept of pure theory of Law:- At the time of Kelson there are Ist world
was which destricted the property of human beings at international level.
So he gave power to the international law and avoiding the destructions
of the world. Secondly during that time many countries adopted written
constitution. So Kelson also get influenced from these written
constitutions and gave his own theory which is based on grandnorms. 
Grandnorm
Grand means great and norm means Law, So it means a great law
the superior authority from which law comes out. He compared the
grandnorm with written constitution. According to him written constitution
is the highest authority in the country which is known as grandnorms. In
England the Parliament is a grandnorm, in USA written constitution is
grandnorms and in India too written Constitution is grandnorm. State is
not above the grandnorm. Sovereignty also liven in grandnorm.
Accoding to Kelson law is a motive nor science, it means science of
norms. In laws only those rules are taken which are related with legal
aspects. Any others like moral rules, religious rules, ethical rules do not
come under the concepts of grandnorm. Here Kelson is equal to Austin.
When he excludes morals relation or ethics from the field of law. 
System of Normative Rules:- System of normative rules was Hierarchy.
In hierarchy system there is one highest authority and all other are lower
authorities. This highest authority was grandnorm which was in the form
of written constitution and other authorities are below the constitution.
The source of power in a state for all bodies is written constitution. 
Internation Law:- Kelson says that norms have a force behind it. This
force lies in the grandnorm. If this legal norm is not obeyed then one
person will be punished for it. He also says that at this time international
law is immature. It is in primitive stage.  It is developing. 
Nature of Grandnorm:- According to Kelson each country has  the
formation of grandnorm according to local conditions. The duty of jurists
is to interpret the grandnorm in their own language. They are not
concerned with the goodness or badness of the grandnorm. They are
not concerned with the origin of the grandnorm. In this way the
grandnorm is the main source of all the laws in the country. 
Elements of Pure Theory:- Kelson gave his view under this theory about
State, sovereignty, public and private law, public and private rights,
international law private and juristic law. 
Feature of Kelson’s theory:-
1. Grandnorm as a source of law:- Grandnorm is the source of all
laws. Grandnorm is in the form of written constitution. Any such body,
which contains rules, or any such legal system in a country. 
2. No difference between law and state:-  Kelson says that there is no
difference between law and State between because they get power from
the same grandnorm. Law comes from the grandnorm and the state also
comes from the grandnorm. 
3. Sovereign is not a separate body:- Austin says sovereign is a
politically superior person which keeps controls over the politically
inferior persons. But Kelson says that the power of sovereign lies in the
people. So the Sovereign is not separate and superior from the people
of the country. 
4. No difference between public law and private law:- The public law
is related with the state and the private law is related with the individuals
as Kelson says that there is no difference between public law and private
law. The law which creates a contract between individuals is called
private law. 
5. Supremacy of internationally laws:- The main prupose of Kelson
was to decrease the tension at world level because there was Ist world
war which destroyed millions of persons and property. He also said that
the internaiton law is in primitive stage or immature stage. It means it is
in developing stage. One day will come when international law will get
equal to that of municipal law. So this is also enforceable. 
Criticism of Kelson’s theory:- In-spit of having good concept of pure
theory given by Kelson some of the criticism faced by him, which are as
under:
a. Grandnorm is a vague concept:- The concept of grandnorm is not
clear. It cannot be applied where there is no written constitution. The
base of grandnorm in the form of positive norms or the rules based only
on legal order is not clear. The rules, which are not linked with morals
ethics. Customs and religion are not the norms. But we can not ignore
the role of these norms in the development of law.
b. Interantion Law is a weak law:- Kelson advocated the supremacy
of international law. But even upto now we see that is no force behind
international law. 
c. No difference between state and law:- this point is also criticised
by various writers. Law as a separate thing from the State. State is body
is law in, which law is a rule that regulates the state. 
d. Difference between public law and private law:- Kelson says that
there is no different between public law and private law. Which is also
not right in the modern days. 
e. Customs and Precedents ignored:- He also customs as a source
of law while we see that customs are the source of all laws.
 Conclusion:- Although Kelson has been criticised from various angles
yet he had contributed a lot in the development of the society. Thus the
concept of grandnorm gave power to the public at large as well as at
national level. His main purpose was to stop destruction of any world
war. This can resemble to Austin also Kelson is also limited with the
law.