Syllabus Revision Program by Islami Jamiat Talba,

For Batch 19-24,

Punjab University Law College.

Subject: English Jurisprudence (LL.B Part III)

PRECEDENT

Question : What are the circumstances that increase the authority of a precedent and those
that decrease its authority?

Introduction :

"The great body of the common or unwritten law is al-most entirely the product of decided cases,
accumu-lated in an immense series of reports." (John Salmond)

Precedent, in law, is a judgment or decision of afuture court that is cited in a subsequent

dispute as an example or analogy to decide a similar case or point of law in the same
manner in .

Interpretation of the term:

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 An adjudged case or decision considered as furnishing an example or authority
for our identical or similar case afterwards arising or a similar question of law.

Black's Law
Dictionary

Definitions:

• BY KEETON:

A judicial precedent is a judicial decision to which authority has in some manner been attached.

• BY SALMOND:

A precedent is a judicial decision which contains in itself a principle.

• According to Gray:

"Precedent covers everything said or done, which furnishes a rule for subsequent practice."

• According to Bentham:

Precedents are ‘Judge made Laws.’

Explanation:

• Guidance or authority of past decisions for future cases.

• Precedents must be reported, maybe cited and may probably be followed by courts.
• Precedents must have opinio-juris.
• These must be followed widely for a long time and must not violate any existing statue
law.

Founding Maxim:

Stare decisis is the legal principle by which judges are obliged to respect the precedents
established by prior decisions. The words originate from the phrasing of the principle in the Latin
maxim Stare decisis et non quieta movere : “to stand by decisions and not disturb the
undisturbed.”

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Kinds of Precedents:

1. AUTHORITATIVE PRECEDENTS

An authoritative precedent is the one which judge must follow whether they approve of it or not.

2. PERSUASIVE PRECEDENTS

Persuasive precedents are those which the courts are not bound to follow, but they may take them
into consideration while giving decisions.

3. ABSOLUTE PRECEDENT

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.

4. CONDITIONAL PRECEDENT

In the case of authoritative Precedents having a Conditional authority, the Court can disregard
them under certain circumstances. Ordinarily they are binding but under special circumstances,
they can be disregarded.

5. ORIGINAL PRECEDENT

According to Salmond , an original Precedent is one which creates and applies a new rule. In the
case of Original Precedent, it is law for the future because it is now applied. The number of
original Precedents is small but their importance us very great, they alone develop the law of the
country. They serve as good evidence of law for the future.

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 6. DECLARATORY PRECEDENT

According to Salmond, a declaratory precedent is one which is merely the application of an

already existing rule of law. In the case of declaratory precedent, the rule is applied because it is
already law. In case of advanced countries, declaratory Precedents are more numerous. A
declaratory precedent is good as a source of law as an original Precedent.

CIRCUMSTANCES THAT INCREASE THE AUTHORITY OF A PRECEDENT:

1.Unanimous Decision:

If the decision of the court is unanimous, it will reflect more strength on the face of it and the
valued of that decision will increase, unanimity of opinion among judges add to the binding force
of precedents.

Case:

Benazir Bhutto Vs. Federation of Pakistan: In this case, 11 judges (the a largest bench) declared
that in Pakistan election would be held under political party system.

2.Affirmation by superior Courts:

A decision that is declared or made by a higher court and is affirmed y a supreme court increases
the binding force of that precedent and add to its validity.

3.Participation of eminent judges:

The decision pronounced by eminent and able judges who are recognized by all sectors,
increases the binding force of a precedent. Surely their decisions would be appreciated and
considered as authoritative.

4.Support of Enacted Law:

If an act is passed embodying the law in a precedent the precedent gains an added authority. So
when a judge made law is codified in the form of an enacted law, it is presumed that the
precedent is a perfect law.

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5.Decision Based on Learned Arguments:

The decision which is based on learned arguments and reasoning and which possesses scholarly
angles; add to the value of a precedent.

6.Absence of criticism & hesitation:

If the decision is followed by other courts without any hesitation and criticism it will also
enhance the binding force of a precedent.

7.Confined Decision:

A decision having no ambiguity as in case of reversal on some different law, add to the value of
a precedent. A confirmed decision possesses more force than a controversial decision.

8.Approval of the earlier decisions of same rank courts:

When a decision is followed by a court of the same rank or approved or affirmed by it, it adds to
the validity of that precedent.

9.Fully argued decision:

When a case is full argued by both parties and the judge while deciding it has before him both
their opinions, it is assumed that the decision is not one-sided and based on justice and equity as
both parties were given full opportunity to give their justifications. Such a decision which is fully
argued also enhance the binding force of a precedent.

10.Appreciation by people:

When there is a positive reaction of people on some precedent or it receives healthy appreciation
form the people, then the binding value of that precedent increases.

11.Fully Contested:

When cases are fully contested and each and every point is thoroughly discussed then precedents
made on such grounds have more force and increase their binding value.

12.Original precedents:

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When a precedent is made in confirmation of a statue law which is in accordance with the statue
and its provisions, that precedent will be binding on courts and add to its validity and as it is not
made in violation of the statue.

13.Number of judges:

The number of judges declaring a precedent also adds to the binding force of a precedent. A
precedent set by a full bench of judges is considered better than a precedent set by a single
bench.

14.Eminence of lawyers:

Eminence skill and good name of lawyers is also an important factor increasing the binding force
of a precedent.

15.Frequently followed:

When a precedent is frequently followed by other courts, its binding value increases.

16.Lapse of time:

Laps of time also add to the authority of a decision. When a precedent is not contested for a long
period and is followed unobstructed by courts, its binding force increases and it is presumed to
be a valid one.

CIRCUMSTANCES THAT DECREASE THE AUTHORITY OF A PRECEDENT :

1.Abrogated decisions:

A decision ceases to be binding if a statue as statutory rule in consistent with it is

subsequently enacted, or it is reversed or overruled by a higher court. In youngs case, the court of
appeal accepted the new principle that it is not bound by its previous decision if it cannot stand
with a subsequent decision of the House of Lords.

2.Split Decision:

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 When a decision is divided among the judges and their opinion is not unanimous, or
majority opinion, then its binding force will be reduced.

CASE:

State vs. Zulfiqar Ali Bhutto. In this case the decision was split as three judges said to
acquit the former prime minister while four judges delivered and pronounce death sentence to
him.

3.Reversal or affirmation on a different ground:

The view of Jessel H.R is that where the judgment of the lower court is affirmed or
reversed on different grounds, it is deprived of all the 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 it other wise have had, but it remains an authority which may be followed by a court that
things the particular point to have been rightly decided.

4.Inconsistency with the earlier decisions of higher courts:

Precedent losses its binding force if the court that decided it overlooked an inconsistent
decision of a higher court. Such a decision is said to be inconstant.

5.Inconsistency between earlier decision of same ranks courts:

A court is not bound by its own previous decisions that are in conflict with one another.
The lower court may refuse to follow the later decision on the ground that it was arrived at per
incur aim.

6.Ex-parte decision

If the decision is declared in the absence of other party, it will never be upheld being one-
sided decision. Hence, it will not be presumed to be a forceful precedent.

7.Decision badly criticized:

If some decision is severely criticized by lawyers jurists, students of law etc. then its
binding value extinguishes (State vs. Z.A. Bhutto S.C)

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8.Precedent Sub-Silentio

When a particular point involved in decision is not taken notice of and it not fully argued
by a counsel, then the precedent loses its binding force. Hence, such a rule is not an authority and
the point which has not been argued and this point is said to pass sub-Silentio.

CASE: K. Balkrishma Rao Vs. Hajji Abdullah Sait: The Supreme Court held that binding force
of a precedent does not depend on whether an argument was considered or not provided the point
for which argument was advance was actually supreme court.

9.Ignorance of Statute.

A precedent is not binding if it was rendered in ignorance of statute or a rule having force of
statute i.e. delegated legislation.

10.Erroneous decision:

Decisions may also err by being founded on wrong principles or by conflicting with
fundamental principled of common law. Such a decision which is erroneous can be overruled by
higher courts or statue and weakens the validity of a precedent.

CASE: London Transport Executive Vs. Belts: it was held that house of lords could disregarded a
prior decision of its own which conflicted will fundamental principles of common law.

11. Decisions not followed for a long time:

Though laps of time do not extinguish a precedent but it may destroy its binding force of
it is not followed by lower courts for a long time on the base of justifiable reasons.

12.Decision of equally divided courts:

Where an appellate court is equally divided, the practice is to dismiss the appeal and hold
that the decision appealed from its the correct decision. This problem does not arise nowadays as
benches sit with uneven number of members

13.Decision based on compromise:

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 If both parties comprises outside the court and case is not fully argued in the court due to
the compromise, then the binding value of that precedent is destroyed and decreased.

14.Decisions that create anarchy

Those decisions which create anarchy in a state or unrest among citizens are often replaced or
annulled and decreases the binding force of that precedent.

15.Decision reflecting injustice:

If the decision is not based on justice. It will weaken the binding force of precedent.

16.decisions given in haste by summary proceedings

If the decision is given by summary proceedings without giving full opportunity of

arguing to parties, it will also reduce the binding force off a precedent.

17.Decision avoiding hardships and inconvenience

If the decision is given just to avoid inconvenience and hard ship and has not reasoning, it also
loses losses it binding force of that precedent.

18.Decision based in doubts

If a decision reflects uncertainties and is doubtful, it will weaken the binding force of a
precedent.

19.Evasion of procedure

If while announcing the decision, the court superseded the very procedure of law, then the
decision will have lesser binding force.

20.Evasion of established rules and practices

If the decision is based having suppression of established rule and practices of courts, it will also
lessons the binding force of precedent.

21.Difference of opinion

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If there is a difference of opinion regarding a decision, it destroys the binding force of a
precedent.

CONCLUSION :

If the courts do not follow precedents and the judges start deciding and determining issues every
time afresh without having regard to the previous decisions on the point, the law would become
the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are
influenced by social, economic and many other values of their age. They mould and shape the
law according to the changed conditions and thus bring flexibility to law.

References and further reading:

• Jurisprudence by V.D Mahajan

• Jurisprudence by John Salmond
• https://www.toppr.com/guides/business-laws/introduction-to-law/principle-sources-of-
indian-law-judicial-decisions/
• https://blog.ipleaders.in/judicial-precedent-source-law/
• https://www.lawctopus.com/academike/precedents-as-a-source-of-
law/#:~:text=Binding%20precedents&text=Binding%20precedent%20relies%20on%20the,to%20
new%20situations%20by%20analogy.

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Prepared by: Abdul Qadeer

Team Head: Arslan Azhar Ranjha.

Project by Islami Jamiat Talaba, Punjab University Law College

BEST OF LUCK … !!

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