ASSIGNMENT
ON
HISTORY AND NATURE OF
PRECEDENTS
Subject: Judicial Process
Submitted by,
Sarika.P.S
2nd Semester, LL.M
SLS, CUSAT
INTRODUCTION
Most of the nations follow either of two major legal systems, that is
common law system and civil law system. Common law system is of
English origin and it spread into almost all of its colonies. Civil law system
emerged in other parts of Europe and applied also in the colonies of
certain imperial powers such as Portuguese.
In civil law system judge is to apply the law, which is well codified,
updated and govern all aspects like substantive and procedural, into the
facts in hand. Thus the judge is to act within the well crafted legal frame
work, and their pronouncements are of no significant contribution to the
law of the land.
Unlike civil law system in common law system judges play an important
role in the development of the law of the land, which is generally
uncodified and scattered. The areas which left untouched by law or
ambiguous legal provisions will give the judge a role of law maker till the
parliament enacts on the same or clarify the ambiguity, which seldom
happens. Thus a judicial pronouncement will play the role of the law. Such
a judicial pronouncement is termed as precedent, meaning preceding
decision that is being applied by latter courts in matters of like nature
before them.
PRECEDENT.
Precedent is an important element of common law tradition. traverse the
whole continent of Europe, ransack all the libraries belonging to the
jurisprudential systems of the several political states, add the contents
altogether, you would not be able to compose a collection of cases, equal
in variety, in amplitude, in clearness of statement, in a word, all points
taken together, in instructiveness, to that which may be seen to be
afforded by the collection of English reports of adjudged cases. These
words of Bentham explain the rich tradition of common law. Common law
originates from customary practices. It developed after Norman Conquest
in 1066. King William The conqueror (11th century) as part of his
centralization measures sent Royal Judges to all parts of the country to
establish and enforce royal authority and Kings justice. This system was
made more systematic during King Henrys time (12th century).
There were very little royal legislations that time and the travelling judges
used to adjudge and administer justice as per local customs. When they
came back to their headquarters at Westminster, they shared their
experiences. Through that conversation they realized that almost all
customs in different places have much in common. The realization as to
this commonness of customary practices through this extra judicial
conversations, over time produced a uniformity in law that was declared
by the judges and sustained by their colleagues.
Precedent can be defined as the decision in a case having or considered
as having binding effect on the latter cases of like nature. Salmond
defines precedent as in loose sense, it include merely reported case laws
which may be cited and followed by courts. In strict sense, the case law
which not only has a great binding authority but must also be followed.
A judicial precedent, according to Keeton, is judicial to which authority
has in some measures been attached. To Dias precedent means,
previous instance or case which furnishes an example or rule for
subsequent conduct and a pattern upon which subsequent conduct is
based. So precedent in its simplest sense means guidance or authority of
past decision for future cases.
In order that a system of precedent works well, there should be a well
defined hierarchical system of judiciary and a well developed system of
reporting of judgments.
This judicial law making can only be done in cases of first impression,
where there is no solution given by the legislature or when the given
solution is ambiguous. So their function should strictly be confined to
constitutive and not abrogative. Which means through precedents law can
be made in matters for which the legislature is not yet provides a solution
and they are not to abrogate legal provisions.
In common law systems a judge when deciding a first instant case not
only settles the dispute but also creating a rule to deal with cases of like
nature. Thus it is the proposition of law, as identified by the next judge is
the binding element of a judgment. It is for that proposition of law the
case is an authority. This proposition of law is what we identify as ratio
decidenti. In identifying a ratio of the previous case the judge is using the
inductive method of reasoning. That is judge finds out general principle
from the specific case.
The system of precedent, which is a glorious attribute of almost all
common law nations, is beneficial and contributive to the legal system in
many ways.
Firstly it brings about certainty in law. It enables the people to plan their
actions considering the legal consequences they may entail. When a
person is entering into a contract and if he knows that the interpretation
given by court for a particular term is in his favour he can let that in. legal
practitioners will be able to advice their clients with more certainty and
confidence. Thus the predictability that is being brought about by the
system is appreciable. By following the system of precedent we can
ensure stability and continuity to the legal system.
It brings about equality and establishes justice as it gives a minimum
space to arbitrariness. If judges are let free to decide cases (first
impression) before them on their discretion there is all chances that his
own prejudices and subconscious elements would play a considerable role
in the decision making. But if they are to follow previous decision chances
of such an injustice being done will be very law. It is based on the
conception that principles to govern a society should be rule of law rather
than will of one or more individuals.
Precedents give more flexibility to the system as it permits the higher
courts to overrule their own precedents as well as it give freedom to the
subsequent judge to decide upon the ratio decidenti. Thus there is all
possibility that law being adaptive to social changes. It also brings in
efficiency. Courts are expected to follow the previous decisions which
relieve them of the laborious task of adjudication and make the system
expedient and effective.
It is the most practical system of law making. As judges can provide law
for almost all situations that come before them, which the legislature
might not have foreseen. Thus it is more practical than a law making
based on assumptions and imaginations.
However the complexity that this system inherently has is not to be
disregarded. Bulky judgments and in almost all appellate judgments more
than one judgments makes it difficult to finding out the ratio. As only the
higher judiciary is entrusted with the power of over ruling previous
decisions the system becomes rigid. Till a case is being overruled by the
higher judiciary in a like case that comes up before them the old rule is to
be applied even if it is against the understanding of justice of the society
at that time. Judges should wait till a case comes before them, which
makes the expected growth of legal system slow. More over it is
undemocratic for a person or two to provide the law that is to govern
multitudes.
CONCLUSION
Doctrine of precedent one of the principles that underpin common law,
judges to follow the rulings and determinations of judges in higher courts,
where a case involves similar facts and issues. It is the judge in the
subsequent case who carves out the legal proposition from the preceding
decision. Thus however stringent might be the system the subsequent
judge is having great degree of choice in deciding the ratio of the first
decision. Thus a creative judge can tame the ratio of the previous decision
so as to fit into the facts before him. Thus it actually is more adaptive and
efficient.
REFERENCE
Randy J. Kozel, The Scope of Precedent. Vol.113, Michigan Law
Review, 2014, pp.179-230, available at
[Link] (accessed on
01/04/2017 )
Charles W. Collier, Precedent and Legal Authority: A Critical
History, Wisconsin Law Review,1988, pp.771-825,available at
[Link] (accessed on
29/03/2017)
