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ELEMENTS OF JURISPRUDENCE

PRECEDENT AS A SOURCE OF LAW AND ITS HISTORICAL DEVELOPMENT

Guided by :- Mr. Abhik Majumdar


Faculty of Law

Prepared by:- SRIJAN MEHROTRA


Roll no. 51
Stream:- B.A. LLB

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LIST OF CASES
London Street Tramways Co. v. London County Council.............. (1898) AC 375, Page no.
Willis Vs. Baddeley................................................................................................, Page no. 10
Quinn v Leathem............................................................................ [1901] AC 495, Page no. 10
Allen V. Flood......................................................................................,[1898] AC 1, Page no.
10
Donoghue v. Stevenson..............................................................., [1932] All ER Rep 1,
no.11

Page

Ryland v. Fletcher......................................................................, [1868] UKHL 1, Page no.11


Vishakha v. State of Rajasthan................................................., AIR 1997 SC 3011,Page no.13
Golknath vs state of Punjab......................................, (1967) 2 SCR 762: AIR 1967 SC, Page
no. 13
Kesavananda Bharati v. The State of Kerala and Others........... AIR 1973 SC 1461,page no.13

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INDEX
Introduction to the topic...................................................................................................3
Research Methodology ....................................................................................................5
Chapter 1 Origin of Precedent ......................................................................................7
Chapter 2 The development of Precedent ....................................................................10
Chapter 3 The development of Precedent in India.......................................................11
Conclusion.......................................................................................................................14
Bibliography....................................................................................................................15

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INTRODUCTION
Sources of law are generally discussed to find out the validity and application of a particular
law. Salmond defines it as that, from which a rule of law derives its force and validity. Source
of law is the will of the state as marked in statutes and decisions of court. Sources of law can
be distinguished on the basis of their enforceability. On the basis of the source, the rule has,
either an authoritative or a persuasive character. Former category includes legislation,
judgment of higher courts, long running customs and is known as legal sources of law.
Whereas, latter includes opinion of jurist, usages, concept of natural law and morality and is
known as extra legal source of law. In the modern state, law is generally created by a formal
legislation or judicial decision or by the act of a subordinate person or group of persons
acting within the limits of delegated authority. However, the role of unauthoritative sources
cannot be denied in creation of new law.
The role of courts in development of law cannot be ignored. Specially, in a country like
England, which doesnt have a written constitution, the whole common law has developed by
the recognition and application of new rules laid down by the courts. It is a principle in
common law that any principle involved in the judicial decision has the force of law and is
binding on other subordinate courts in their subsequent decision. These new principles/rules
have binding force and are treated as an ideal to decide subsequent cases and are known as
Precedent.
Dias defines Precedent as a previous instance or case which furnishes an example or rule for
subsequent conduct, and a pattern upon which the subsequent conduct is based.

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RESEARCH METHODOLOGY
In this topic I would like to examine on the following set of questionsA. How did the concept of Precedent originate and how did it gain recognition?
B. Here I would see the development of Precedent after it was recognised, in light of
many leading cases.
C. Here I would see how the concept of Precedent was familiarised with India and how
then it evolved here?

For this purpose I have taken help from many sources. The method followed by me
for the research is completely doctrinal. I have taken help from both primary as well as
secondary sources. The secondary data used will be more in comparison to the primary data.
And the blue book method of citation is being is used.
As Precedent and its historical development is a topic in which many things can be shown
from the past, I will try to focus on the main events which led to the development of
Precedent. So my chapter 1 will be, Origin of the Precedent in context with English law in
which I will try to show, by looking at the history of English law, how did the concept of
Precedent originate and its need. Why I want to do this, is because I want to see how
Common law, which is being predominantly followed by countries like United Kingdom,
United States Of America and Asian countries like India, has come about. Then my chapter 2
will be The Development Of Precedent in which we will focus on how the Precedent
evolved in context with the many famous cases and how the Precedent was put to use in a
much better manner, here I will also show how the Precedent gained power all over the
world. I will do this by going through a number of popular cases which really make us better
understand the usage of Doctrine of Precedent . Why I want to do this, is because Precedent
is used in future cases, so by seeing the development of Precedent we can better understand
when can the Precedent be used and why it should be used like this. Lastly my chapter 3 will
be The Pre-Independence Development of Precedent in India, here I will see how the
Precedent was taken into India, what the need of such kind of development was and how it
became an authoritative source of law in India. I will do this by going through the history of
Indian law in context with Precedent. Why I want to do this, is because I want to see how the
Precedent played a role in the development of Indian law, also because India has taken the
concept of Precedent from English law so up to what extent it is incorporated in India.

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Chapter 1 :- Origin Of the Precedent


What was the need of Precedent and how did the concept of Precedent originate can only be
understood through the development of English law. The law of England is largely derived
from customs. Custom law can be defined as a habit, a usage, prevalent in a large part of the
society without any resistance, which is later formally incorporated as binding law. The
English law has its first period as Anglo-Saxon period .At the time of Anglo-Saxon period the
English law which was developing had a layer of Roman law within it and Precedent played a
pivotal role in the Roman law. "Precedent was the very essence of Roman public life and the
Romans found a large place for what we may call 'Precedent ,' in the widest sense, in their
legal system."1 But then after some time the concept of following Precedents i.e. stare decisis,
abruptly, came to an end. Then in English law also this thing disappeared before the
advancement of heathen invaders. The people of Briton were driven into the Wales and
Damnonia and with them they carried there law and custom. A great part of the custom then
prevalent in Briton was incarnated in the sentences of Aethelbert, King of Kent (circa A.D.
600), in the sentences of Ine, King of Wessex (circa A.D. 690), in the regulations of King
Alfred the Great (circa A.D.900), and in the English sentences of Cnut, who died in A.D.
1035.They therefore became the law and it therefore became the lawmaker for England.
In the Early thirteenth century Bracton wrote his famous treatise "Be Legibus et
Consuetiulinibus Angliae."In his treatise he has taken large portions from Roman law and
declared that these were also the law of England. But the book was basically planted on the
Kings court of which he was himself a judge for eighteen years .Bracton cited more than 500
cases in his treatise but before him, the writers cited only few cases and showed a diversity
of practice. Precedents are constantly employed and followed, but the judges did not
necessarily consider themselves bound by them, and there are a great many conflicting
decisions in pari materia2."3 They are cited by Bracton as Precedents deserving great respect.
This shows that now the use of Precedent was felt. At the time of 1307-1537 there was
another practice adopted, in which record of the kings court was kept and it became the Law
Report and the content therein, i.e., these decisions and arguments in the Kings Court, by
1 Jolowicz, "Precedent in Greek and Roman Law" (MS), read before the Ricco-bono Seminar of
Roman Law, May I, I939. Cf. BUCKLAND, A TEXT BOOK OF ROMAN LAW 52 (1921).
2 The phrase used in connection with two laws relating to the same subject matter that must be
analyzed with each other.
3 Allen "Precedent and Logic," 41 L.Q. REV. 329 at 338 (I925).
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which the knowledge could be acquired which demonstrate that the concept of Stare Decises
was indirectly coming into the legal system of people and was partly becoming the law
because that was the only way the young lawyers could gain knowledge and for them it
became the law.
The development of equity is entwined which the development of Precedent. I will try to
show how the Precedent helped in the development of equity. In this topic we are focussing
on the head of the chancery the Chancellor who was the Kings secretary of State for all
departments and kept the Kings great seal and did other writing work in the name of the
King. The main function of the Chancery was the issuing of writs to enable a suitor to bring
an action at law. The common law had grown up round the royal writs and remedies for
wrong were totally dependent upon them. A person who wanted to bring an action had to go
to the Chancery and obtain an appropriate writ from the clerks thereafter paying the fees. The
numbers of writs were however limited and if a persons cause of action could not be brought
under any of the recognized writs, the common law provided no remedy. Even though a
plaintiffs action fell within one of the recognized writs, he was often unable to obtain a
remedy in the common law courts because of the strength of the defendant who would defy
the court or intimidate the jury. Persons who could not get adequate relief owing to the
shortcomings of the common law began to present their petitions to the King-in-Council. The
number of such petitions to the King as fountain of justice increased and it was not possible
for him to cope with the work. Therefore the hearing of such petitions fell on the Chancellor,
who was an ecclesiast-generally a bishop. He was also the Kings Prime Minister and an
important member of the Kings council, learned in the civil and canon law. With the passage
of time these petitions began to be presented to the Chancellor directly. These Chancellors
now started issuing new writs based on equity for which common law had no remedy. This
developed Equity Courts in England.So now we can see, in the development of equity
courts a need was felt that the decisions should be made by going beyond the scope of
common law. By doing that, they were creating the laws by their own judgements and these
judgements were recorded as there were number of similar cases and the past judgement were
used there and thus following Precedent became a source of law there. A respect for
Precedent grew up in this Court as it was there in the Courts of Common Law.
So now we can understand how the Precedent came into the legal system and what was the
need of such kind of development . The development could be shown like this.
The Source of law is the reason or wisdom of the courts Precedents.

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In common law legal system, the law is created and/or refined by judges: a decision in the
case currently pending depends on decisions in previous cases and affects the law to be
applied in future cases.

[Principle of Stare Decisis]


stare decisis et non quieta movere
"to stand by and adhere to decisions and not disturb what is settled.

Precedent

Law of

Chapter 2 :THE DEVELOPMENT OF PRECEDENT


The concept of Precedent gained recognition in the kings court
in the form of Law Reports being kept, as evident from the previous chapter.
But even in the mid-nineteenth century, a judge of first instance
was not deterred in holding a Chancery appeal as a mistake and he was not bound by it. This
is evident from the case of London Street Tramways Co. v. London County Council 4
wherein it was held that the former rule that the House of Lords were absolutely bound by
its previous decisions was not completely settled until the end of the Nineteenth Century.
It would not be out of place to mention the two major stages in
the development of the concept of Precedents, being stages supported by the declaratory and
realistic theory respectively. The former states that the common law does not change - in each
case the law is merely re-stated but not added to - the judges are declaring what the law is, on
the basis of past decisions. This stage is aptly summed up in the case of Willis Vs.
Baddeley
This created a lacuna in the field of law, as Precedents arose
from novel situations rather than renewed thinking. As a result many bad Precedents came to
be relied upon, and hence could not be overruled. This period of legalism continued, with
judgments deduced rather than decisions reached until the 1950s. Judges now, as a contrast,
are more ready to acknowledge that they make law.
4 (1898) AC 375
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The development of the concept of Precedents can be better


explained with the help of celebrated cases. First being the case of Quinn v Leathem 5wherein
the concept of treating conspiracy to injure as a legal wrong was recognised. "It is," said Lord
Macnaghten at p. 510, "a violation of legal right to interfere with contractual relations
recognised by law if there be no sufficient justification for the interference.. In the
abovementioned case, the celebrated case of Allen V. Flood6 was discussed in detail but was
not strictly followed. So we can see that the practice of citing previous cases was not alien
and was given its due.
Then there was the celebrated case Donoghue v. Stevenson7 in which the
principle of neighbourhood was defined which was further upheld in cases involving
negligence and so on which shows how a principle laid down in one case had a binding effect
on so many other cases which in turn created a law and it also shows how such innovation of
law has helped in the development of social justice because without such innovation, the law
would be poorer, and Parliament may not have taken such a bold step for the greater good.
Similarly in the case of Ryland v. Fletcher 8 the principle of no fault liability/strict liability
was expounded which is of great significance in todays society. This principle has found a lot
of praise across the globe and is cited as a complete authority in similar cases.
Thus from this chapter we can safely conclude that the practice of laying down
legal principles was rampant in the judiciary which was over the passage of time regarded as
an authoritative source of law. This practice of laying down Precedents has helped in the
development of law over many ages and continues to do so.

5 [1901] AC 495
6 [1898] AC 1
7 [1932] All ER Rep 1
8 [1868] UKHL 1
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Chapter 3:-

The development of Precedent in India

When India became part of the British Empire, there was a break in tradition

and Hindu

and Islamic laws were supplanted by the common law. As a result, the present judicial system
of the country derives largely from the British system and has little correlation to the
institutions of the pre-British era.
Prior to the Indian independence, the doctrine of judicial Precedent was first
recognised under Sec. 212 of the Government of India Act, 1935. The Sec. provided that the
law declared by the federal court and by the judgment of the Privy Council shall be binding
on all courts in British India. The High Courts in India were bound by the decisions of the
Federal Court and Privy Council. But the Federal Court and the Privy Council were not
bound by their own previous decisions. The Federal Court was not bound by the decisions of
the Privy Council but with regard to other civil matters, Privy Council decisions were binding
on the Federal Court of India.
After the Constitution of India came into force, the Supreme Court became the
Highest Court in the hierarchy of courts in India. Therefore, the decisions of the English
Court have merely persuasive value and it is not obligatory for the Supreme Court to follow
them. It is not even bound by the obiter dicta of the English Courts. Similarly, the judgments
of the Privy Council are not binding of the Supreme Court . However, the decision of Privy
Council and Federal Court are binding over the High Court unless they are contrary to the
decision given by Supreme Court .
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After the concept of Precedent was introduced in India by the britishers it was not
followed impartially because in similar situations different judgement were passed for
English subject and Indian subject, favouring the English. This had to be changed and was
done by incorporating article 141 in the Indian constitution which states that The law
declared by the SC shall be binding on all courts within the territory of India.which clearly
shows the evolution and importance following Precedent in a civilised society.
Now, we see how Art141 has helped in the development of Precedent by going
through some popular cases.
Vishakha v. State of Rajasthan9 : In a landmark judgement, the Supreme Court did not
wait for to ratify an international treaty, but went ahead and laid down rules to protect women
from sexual harassment at the work place.
Here we see how the Supreme Court had made a law on which the government has not
enacted any law yet it is followed all over India because it has an authoritative effect on all
the court and so if any case similar to this arises the above mentioned judgement will be
followed.
The evolvement of precedent can be concluded in India with help of following cases:
In Re Berubari case the Supreme Court said The preamble is not the part
of the constitution and therefore it cannot be regarded as a source of
substantive power where as in Golknath vs state of Punjab 10 case
Supreme Court overturned its decision and hence we can see that
precedent was not blindly followed in India .Further we see that SC also
said in Golaknath case that parliament has no power to amend the
constitution under art.368 which was again overturned in Kesavananda
Bharati v. The State of Kerala and Others 11.But the orders of this case was
used as precedents in Minerva Mills Ltd. v. Union of India.This shows that
evolvement of precedents in India has been a systematic process and not
a blind-fold one, and it is still evolving.

9 AIR 1997 SC 3011


10 (1967) 2 SCR 762: AIR 1967 SC
11 AIR 1973 SC 1461
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CONCLUSION
Precedent is a distinct source of law. It not only creates new law but also provides solutions
for the contemporary problems. The quality of Precedent as a source of law is that the law
which flows from it is critically legal. This is not the case with the law passed by the
legislation. Although, the language of a statute is more formal in nature, it is the creation of
executive which is not a legal body. In case of legislation, law is enacted by the persons who
are not well versed with other law at domestic level and at international level. The situation is
different with Precedent . Here the law is made by judges who are having a sound knowledge
about the law is and what it ought to be. Further, the making of law by way of Precedent is a
quick process. Legislature takes a considerable time to enact the law. Then time is taken to
pass the law and finally the law is put into force. This is not the case with Precedent . Making
law by way of Precedent is a quick process. There exists no formality. A new law can be laid
down in each case if the judge so decides. Further, In case of legislation the government has
to take concern about the other parties who are supporting it and the consequences of the
statute on their vote bank. This is not the case with Precedent . Judges render judgment free
and fearlessly. They are not under any pressure. Generally, the decisions rendered by the
judges are meant for law reforms and how the law can be applied for the best interest of
deprived class. Precedent is an instant method of making new law as per the needs of the
society. No doubt, judiciary is more active and concerned about the rights of the citizens. Yet,
due to the applicability of doctrine of separation of powers judiciary generally keeps itself
from creating new laws. Many a times the courts have declared through its judgment that
their work is to interpret the law enacted by the legislature and they cannot interfere with the
work of the law making body.
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Bibliography

1.

Edgar Bodenheimer, Jurisprudence; The Philosophy and Method of Law (5th edn.

Universal Law Publication, Delhi 2006).


2. G.W. Paton, A Textbook of Jurisprudence (4th edn. Oxford University Press, New
Delhi 2005).
3. P. J. Fitzgerald, Salmond on Jurisprudence (12th edn. Universal Law Publication,
Delhi 2006).
4. V.D. Mahajan, Jurisprudence and legal Theory (5th edn. Eastern Book Company,
Lucknow 2007).
5. Dr. N.V. Paranjape, Studies in Jurisprudence & Legal Theory (5th edn. Central Law
Agency, Allahabad 2009).
6. Chambers, Common Law (1911)
7. Odgers, Common Law of England Vol 2 (1920)
8. Pound, Spirit of the Common Law (1921)
9 WWW.JSTOR.COM
10WWW.SSRN.COM

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