08/06/2020 A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS

A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS

Posted on August 17, 2011 | by Aditi Ghosh

ADITI GHOSH

 INTRODUCTION:

Judicial methods are the techniques adopted by the judges in deciding cases. Judicial method
plays an important role in the development of law, irrespective of the fact whether a
community lives in rural simplicity or modern complexity, or whether it follows case laws to
decide cases or codified laws. In this paper the researcher is going to discuss the judicial
method of legal precedents and the fundamental issues raised by following this method.

There are two types of law – statute law and common law. The first category refers to the
law passed by the parliament, it is written and must be adhered to. The second type is the
common law where judges decide cases by looking at previous decisions that are sufficiently similar and utilize the principle followed in
that case. This is called stare rationibus decidendi, usually referred to as stare decisis, which means ‘Let the decision stand’.

Hence a court may be bound by the statutes or by the decisions of the superior courts. And to understand what judicial precedence and
ratio decidendi are, we must study this area of the legal system ie following case laws and legal precedents.

One of the functions of the judicial opinion is to help preserve the confidence of the bar and the public in the ability, learning, fairness
and open mindedness of the judiciary as a whole, as well as the careful attention due to the particular case, by indicating the grounds
upon which the decision is based whenever the case is one not entirely clear.

WHAT IS MEANT BY A PRECEDENT?

A precedent or authority in common law parlance means a previously decided case which establishes a rule or principle that may be
utilized by a court or a judicial body in deciding cases that are similar in facts or issues.

TYPES OF PRECEDENTS

There are different types of precedent within the law.

ORIGINAL PRECEDENT

The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before, then the decision of
the judge in such a case forms an original precedent. Eg. The famous case of Donoghue v Stevenson (case of negligence of the
manufacturer and the duty of care he owes to his customers). In such a case the judge has to reason by analogy and look at cases that
are similar and are closest in principle and thus arrive at a judgment by using similar reasoning.

AUTHORITATIVE OR BINDING PRECEDENT

As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judges must follow whether they approve
it or not. It is also known as mandatory precedent or binding authority. As per the doctrine of stare decisis, a court lower in the hierarchy
follows and honours the findings of law made by a court higher in the hierarchy. The decisions of lower courts are not binding on courts
higher in the system.

Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region.

PERSUASIVE PRECEDENT

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And a persuasive decision or precedent is one which the judges are under no obligation to follow but which they will take into
consideration and attach as much weight as it deserves.

It is a precedent that the court need not follow, but may consider when a decision is being made as it is relevant and might be useful.
Persuasive precedent comes from many places. Courts lower in the hierarchy can create a persuasive precedent.

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These cases could be cases that are decided by lower courts, or courts equivalent in the hierarchy or in some exceptional circumstances,
cases of other nations, judicial bodies of the world etc.

Once a persuasive precedent has been adopted by a higher court it becomes a binding precedent for all the lower courts that time
onwards.

THE DOCTRINE OF STARE DECISIS?

“Stare decisis” is an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions that
are already settled and not to disturb those settled matters”. And “Stare decisis” literally means “to stand by decided matters”.

Stare decisis is a policy adopted by the court to stand by a precedent. The word “decisis” means ‘the decision’. Under the doctrine of
stare decisis, the decision of the court for a case is only what is important and not the real facts and proceedings of the case. In other
words it is the ‘what’ of a case which is important and not the ‘how’ and ‘why’.

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The principle of stare decisis can be divided into two components or principles:

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The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn.

The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be
guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and does occasionally
ignore.

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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.

Glanville Williams in Learning the Law (9th ed. 1973), describes the doctrine in simple 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 author 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 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.

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For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. In
India, The Supreme Court of India is the supreme authority in legal matters as it is the highest judicial body and the cases decided by it
form the precedent for all the other courts in India; it includes the High Courts, district courts and the other lower courts. The Supreme
Courts serves as the precedential body, resolving conflicting interpretations of law. Whatever this court decides becomes judicial
precedent.

It has been stated by The United States Court of Appeals for the Ninth Circuit :

“For the system of precedents to work effectively there are three elements that are very important to be present in the legal system of
that country. First, there needs to be an undisputed and accepted hierarchy of courts with one court having the supreme authority over
all the other courts of the land. The second is the presence of an efficient law or case reporting system. And the third element is to strike
a balance between the need of having consistency and certainty in legal matters resulting from following the previously decided binding
cases and on the other hand to avoid the restricting effect on the development of law by following such a method. ”

HOW RELEVANT IS THE IDEA OF JUDICIAL PRECEDENTS?

In the words of one British journalist, “Judicial precedent means a trick which has been tried before, successfully.”

In the language of a layman the term ‘precedent’ implies that what was done before should be done again the same way. The method
adopted in any problem solving exercise is to find out if a similar problem has been tackled before. If yes, then the next step is to find
out the degrees of similarity that exists between the problems. If the similarities are found to be significant then next it needs to be
analysed whether the same principle that was applied to the previously solved problem can be applied successfully to solve the problem
at hand. This way the precedent works as an effective guide to solve new problems having similarity with the earlier one. This helps in
achieving consistency and certainty in legal matters. And the corollary of this situation is that people making decisions are often afraid
to do something new and striking in case ‘it creates a precedent’. In the words of a renowned legal philosopher and Scottish politician,
MacCormick:

“To understand case-law . . . is to understand how it is that particular decisions by particular judges concerning particular parties to
particular cases can be used in the construction of general rules applying to the actions and transactions of persons at large.”

WHAT IS THE BINDING ELEMENT OF A CASE?

What is binding on the lower court??

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answered, it is natural to reach the same conclusion by applying the same principle. It also helps save unnecessary litigation. The
existence of a precedent may prevent a judge making a mistake that he might have made if he had been left on his own without any
guidance. The doctrine of precedent may serve the interests of justice. It would be unjust to reach a different decision in a similarly
situated case.

The most evident disadvantage of this method is the rigidity it confers on the development of law. The doctrine of stare decisis is a
limiting factor in the development of judge-made law. Practical law is founded on experience but the scope for further experience is
restricted if the first case is binding. The cases exemplify the law in great detail, therein lies another weakness of case law. It is in bulk
and its complexity makes it increasingly difficult to find the law. There are so many cases that it is hard for judges to find relevant cases
and the reasoning may not be clear. The convenience of following precedent should not be allowed to degenerate into a mere
mechanical exercise performed without any thought. Judicial mistakes of the past are perpetuated unless bad decisions happen to come
before the court of appeal for reconsideration. A system that was truly flexible could not at the same time be certain because no one can
predict when and how legal development will take place. However, the advantage of certainty is lost where there are too many cases or
they are too confusing. The overruling of an earlier case may cause injustice to those who have ordered their affairs in reliance on it.
Precedent may produce justice in the individual case but injustice in the generality of cases. It would be undesirable to treat a number of
claimants unjustly simply because one binding case had laid down an unjust rule.

CONCLUSION

This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, it must be conceded that
stare decisis is only a part of this topic. There is much more. There are substantive rules for the interpretation of statutes, there are
unique considerations when principles of the law of equity are involved and problems caused by the evidentiary rules of onus of proof.
Yet, while the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning and
legal argument, it also has to be conceded that stare decisis continues to play the pivotal role. The great American judge, Oliver Wendell
Holmes Jnr, had said ‘The life of the Law has not been logic; it has been experience’. It can be concluded that for an organized and
orderly development of law the method of using judicial precedents is inevitable.

Lord Halsbury has said that there is more to the law than a mechanical process of logical deduction. It is obvious that the Judge has in
every case to decide for himself which of the circumstances of the alleged precedent were relevant to the decision and whether the
circumstances of his own case are in their essentials similar. Once he has decided which principle to apply, a bit of logic may enter into
his application of principles. But there cannot always be a principle which imposes itself or an absolutely inescapable logical deduction.
Generally there is a choice. And this has been explained by Chandrachud, C.J. in Deena v. Union of India as “Any case, even a locus
classicus, is an authority for what it decides. It is permissible to extend the ratio of a decision to cases involving identical situations,
factual and legal, but care must be taken to see that this is not done mechanically, that is, without a close examination of the rationale of
the decision cited as a precedent.”

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Posted in Corporate & Commercial Law, Legal Articles | Tagged ADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS,
AUTHORITATIVE OR BINDING PRECEDENT, BINDING PRECEDENT, common law, DISADVANTAGES OF THE DOCTRINE OF JUDICIAL
PRECEDENTS, Judicial methods, JUDICIAL PRECEDENTS, original precedent, PERSUASIVE PRECEDENT, precedent, STARE DECISIS, statute
law

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08/06/2020 A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS

Every judgment contains four major elements:

• statement of material (relevant) facts

• statement of legal principle(s) material to the decision – the ratio decidendi

• discussion of legal principles raised in argument but not material to the decision – obiter dicta

• the decision or verdict

It is not the entire judgement that is binding on the lower courts but only the ratio decidendi. The ratio decidendi of a case is the
underlying principle or legal reason on which the result of the case depends. This ratio is different from the obiter dicta which is not held
to be binding but may be regarded as having persuasive control. And what we are concerned with is not who won or lost but the legal
principles that can be extracted from the case which is known as the ratio decidendi. In the words of the Supreme Court: “A decision is
binding not because of its conclusion but in regard to its ratio and the principle laid down therein.”

WHY SHOULD WE FOLLOW PRECEDENTS IN DECIDING CASES?

The weight attached to precedent in every department of life is closely connected with the force of habit, and has its root deep in
human nature. That judicial precedents have exercised great influence in all systems of law is more than probable; the feeling that a rule
is morally right has often arisen from the fact that it has long been followed as a rule; but the degree in which judicial decisions have
been openly recognized as authoritative, simply because they are judicial decisions, has varied greatly in different systems. Judges are
everywhere largely influenced by what has been done by themselves or their predecessors, but the theories to explain and control such
influence have been diverse, and the development of the law has not been unaffected by them.

The purpose is to create certainty and fairness. Precedent is created by the judgements on past cases. The judgement is the speech
made by the judge who has made the decision on the case, and it is split into two parts. It should be noted that there is often more than
one judge hearing a case, and so there may be many judgements on one case. The first part is the “ratio decidendi” (“reason for
deciding”). This is the most important part as it gives the judge’s decision.

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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.

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:

“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.”

The benefit of following precedents in deciding cases provides certainty to judges in deciding cases, people to plan and lawyers to
advice their clients. It provides sufficient flexibility to common law to develop in order to meet the changing times. This method
balances these two competing aims.

How significant are the differences?

Similarities and differences both are equally important in deciding the precedents to be applied to a case. Only because the fact looks
apparently similar does not necessarily mean that both the cases should be decided in the same manner.
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0 thoughts on “A CRITICAL ANALYSIS OF THE DOCTRINE OF LEGAL PRECEDENTS”

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lavina says:
July 30, 2013 at 11:44 am

What is the rule under Indian law on precedent and ‘common law’ does a House of Lords judgement of say 1916 have
more weight than a recent Supreme Court Judgement say of year 2000 ?

Reply

lavina says:
July 30, 2013 at 11:26 am

What is the rule under indian rule on precedent and common law – does a House of Lord jusgement of say 1916 prevail
over a recent Supreme Court decision

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Sathya Vageeswaran, Advocate says:

August 21, 2011 at 10:53 am

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on a regular basis.

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For example if a dog of German Shepherd breed called Tommy howls in a way similar to that of wolf doesn’t mean that every other
German Shepherd dog would howl similarly. This syllogism here is thus faulty.

CIRCUMSTANCES WEAKENING AND STRENGTHENING THE AUTHORITY OF A PRECEDENT

There can be ways through which precedents may be overruled or judges may chose to deviate from using the precedent.

The first is called per incuriam. Here due to a significant oversight, an important statute was overlooked and this affected the decision
significantly. In other words 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. The second reason is the ‘lapsed rule’, this simply means that the previous
decision was valid when it was made but has simply been outdated. The final reason is if there are conflicting decisions within the Court
of Appeals own decisions, this could occur if two similar cases were being tried at the same time but different verdicts were reached.
This would mean that the next time a similar case came to be heard there would be two conflicting precedents from which to choose.
Therefore one of those decisions would have to be overruled. In extraordinary circumstances a higher court may overturn or overrule
mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the
precedent.

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The relief or tool available to a judge who wishes to avoid following a previous decision which they would otherwise be bound to follow
is called distinguishing. When a judge finds the material facts of the present case to be sufficiently different from the earlier case he may
distinguish the two cases and refuse to follow the earlier decision. An advantage of distinguishing is that it helps to keep judicial
precedent and the law flexible.

The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is
different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of “distinguishing”:
restrictive and non-restrictive and states:

“Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to
curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive
distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact,
present in the earlier case, which the earlier court regarded as immaterial.”

There are various factors that strengthen the authority of a precedent. The number of judges constituting the bench, their eminence and
the majority strength in the decision (a unanimous decision is considered more valuable). Also the lapse of time meaning thereby the
years that have passed after the judgement and its relevance in present times. All these factors help in strengthening the hold of a
precedent.

ADVANTAGES AND DISADVANTAGES OF THE DOCTRINE OF JUDICIAL PRECEDENTS

There are both advantages and disadvantages in following the method of precedents in deciding cases.

The most significant advantage is the element of consistency and certainty that is brought in with the application of precedents. A good
decision making process must be consistent. Similar cases must be decided similarly to avoid inconsistency. Consistency is perhaps the
most important advantage claimed for the doctrine of judicial precedent. It may also allow persons generally to order their affairs and
come to settlements with a certain amount of confidence. The interests of justice also demand impartiality from the judge. In this
method the Judges have clear cases to follow. This is assured by the existence of a binding precedent, which he must follow unless it is
distinguishable. If he tries to distinguish an indistinguishable case his attempt will be obvious. And hence this method ensures
impartiality from the judge. Case law is practical in character. It is based on the experience of actual cases brought before the courts
rather than on logic or theory. Case laws are viable statute law and the rules and principles are derived from everyday life. This means
that it should work effectively and be intelligible and is thus practical. It removes any element of ambiguity regarding the authority of
the binding precedents and enables lower courts to follow the decisions of higher courts unanimously. The making of law in decided
cases offers opportunities for growth and legal development, which could not be provided by Parliament. The courts can more quickly
lay down new principles, or extend old principles, to meet novel circumstances. There has built up over the centuries a wealth of cases
illustrative of a vast number of the principles of English law. Also the hierarchy of the courts ensures that lower courts follow higher
courts and this leads to an orderly development of law. It is also a convenient timesaving method. If a problem has already been

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