Precedents as Sources of

Law
Legal Systems : common law and civil law-
Question
• In this particular juxtaposition, these terms are used to distinguish two distinct legal systems and
approaches to law. The use of the term ‘common law’ in this context refers to all those legal
systems which have adopted the historic English legal system. Foremost amongst these is, of
course, the US, but many other Commonwealth and former Commonwealth countries retain a
common law system. The term ‘civil law’ refers to those other jurisdictions which have adopted
the European continental system of law, which is derived essentially from ancient Roman law but
owes much to the Germanic tradition.- ORIGIN.
• The usual distinction to be made between the two systems is that the former, the common law
system, tends to be case centred and, hence, judge centred, allowing scope for a discretionary, ad
hoc, pragmatic approach to the particular problems that appear before the courts, whereas the
latter, the civil law system, tends to be a codified body of general abstract principles which control
the exercise of judicial discretion. In reality, both of these views are extremes, with the former
overemphasising the extent to which the common law judge can impose his discretion and the
latter underestimating the extent to which continental judges have the power to exercise judicial
discretion. It is perhaps worth mentioning at this point that the European Court of Justice (ECJ),
which was established, in theory, on civil law principles, is in practice increasingly recognising the
benefits of establishing a body of case law.
Difference between common law and
statutory law
Common law comes from judiciary, precedents, cases. Whereas
statutory laws are made by the legislature and are the written law.
Common law evolves with cases and decisions of judges. Statutes are
black letters laws. When we make legal arguments we take both the
help of common law and statutory law.
Precedents
• Doctrine of precedent was established in England with the hierarchy
of courts in the 19th century.
• Core of common law system
• Purpose is to ensure predictability, consistency, uniformity and
certainty of law- what is the purpose/importance?
• This is built on the doctrine of stare decisis which means stand by
decided matters which directs courts to look to past decisions for
guidance on how to decide a case before it. Two components: first is
the rule that a decision made by a higher court is binding precedent
(mandatory authority) which a lower court cannot overturn.
Continued…
• 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 persuasive precedent
and is advisory and gets ignored.
• Decisions of a higher bench are binding on the lower bench.
• Will a precedent be binding on every case? –question
• Precedent is not binding if the court finds material difference between
cases.
• 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.
Continued…
• 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
Ratio decidendi
• Is everything that the judge says in his judgment binding as law on
subsequent courts?-question.
No.
Let’s look at the elements of a judgment/order
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
Ratio decidendi
• it is only the principle of law based on the material facts of the case that is
binding.
• 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."
• Difficulty is where and how to find the ratio?
• Various tests to understand what is the ratio of a case
• Preferred test is the material facts test proposed by professor Goodhart
Goodhart test
• Principle of the case is found by taking account of (a) the facts treated
by the judge as material and (b) his decision as based on them
So ratio decidendi= material facts + decision
Continued…
• Finding a ratio decidendi depends on a process of abstraction from
the totality of facts that occurred in it.
• The process is carried to progressively higher flights.
• The higher (broader/more general) the abstraction the wider the ratio
• From telling a lie that is likely to cause fright which is a lower
abstraction to doing anything with an intent to affect the plaintiff’s
mind or body which is higher as in this case the judge did not confine
his judgment to lies but spoke only of wilfully doing an act which is
calculated to and does cause harm. This would include acts like lying
or anything else too.- CASE EXERCISE.
WHAT ARE THE ESSENTIALS FOR A
PRECEDENT SYSTEM TO WORK?
• 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
• Relevant provisions in India: Articles 141 and 227
Obiter dictum. Difference between ratio and
obiter?
• In contrast with the ratio
• Incidental and collateral opinion while giving the judgment – IS IT
BINDING? NOT binding
• Any statement of law that is not an essential part of the ratio
decidendi is, strictly speaking, superfluous, and any such statement is
referred to as obiter dictum (obiter dicta in the plural), that is, ‘said by
the way’. May be treated as persuasive authority though
CAN JUDGES DEVIATE FROM USING
PRECDENTS?
• There can be ways through which precedents may be overruled or judges may
chose to deviate from using the precedent.
• In extraordinary circumstances a higher court may overturn or overrule
mandatory precedent, but will often attempt to applying the precedent before
overturning it, thereby limiting the scope of 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.
Held in: Young v. Bristol Aeroplane
• Other reasons could be when some facts material to the case were overlooked
(sub silentio) A decision is an authority only for what it actually decides and not
for what may logically or remotely follows from it. Decision on a question which
has not been argued cannot be treated as precedent. Held in: M/s. Goodyear
India Ltd. v. State of Haryana and another.
Continued…
• Another relief 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 (or
questions of law) 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. Held in: UOI v. K.S. Subramanian. An advantage of
distinguishing is that it helps to keep judicial precedent and the law
flexible.
Is SC bound by its own decisions?
• No. Article 141 does not apply to SC. Held in Bengal Immunity v. State
of Bihar- Article 141 only enacts that the decisions of this Court are
binding on all courts, and that does not stand in the way of this Court
itself, reversing or modifyinga previous decision, as when that is
done, such decision would thereafter become itself the law under that
article.
JUDICIAL ACTIVISM:
• Vishaka case
The SC laid down guidelines for the prevention of sexual harrassment of
women at the workplace and recommended that the govt enact a law for
the same. Such law having not yet come into force, till date, the guidelines
given by the court in this case are being considered as having the force of
legislation.
• M.C.Mehta v. UOI
The court laid down a new rule of strict and absolute liabiilty in respect of
hazardous and inherently dangereous activities. This concept was initially
born in England in the case of Rylands v. Fletcher – (1868) LR 3 HL 330.
• Vineet Narain v. UOI - (1998) 1 SCC 226.
The SC laid down ‘Seven principles governing public life’. The Court also
gave directions for the setting up of the Central Vigilance Commission to
govern the working of the CBI.