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Quaid-e-Azam Law College Lahore

LLB-PART-III [5 years]
English Jurisprudence Precedent
Prof. Nafeer A. Malik Session 22-23

INTRODUCTION

Precedent is a distinguishing feature of English Law & its doctrine is of great

antiquity (historical). In the early days of common law 12th century, ‘judiciary law
was found to be suited for the expression of that part of the legal system which has its
sources’.

BACKGROUND

Contrary to the system of judicial precedent is the continental system.

Precedents of even the Superiors Courts are not recognized as binding on themselves
or subordinates.
They are merely instructive & not authoritative.
 In Roman law. Precedents were not binding until the time of ‘Augustus’. He
introduced ‘jus respondent’ opinion of eminent judge were made binding.

PRECEDENT IN CUSTOM IN WIDER SENCE

Precedent means previous decision. Judicial precedent is the one that contains in
itself the principle of law.

INTERPRETATION OF PRECEDENT

Black’s Law Dictionary:

An adjudged case or decision considered as furnishing are example or
authority for our identical or similar case afterwards arising or a question of law “A
rule of law established for the first time by a court for a particular type of case &
thereafter referred to in deciding similar cases”.

Law Dictionary Meanings:

“A previously decided case which is recognized as authority for the
disposition of future cases”.

DEFINITIONS OF PRECEDENT

KEETON

“A judicial precedent is a judicial decision to which authority has in some

manner been attached.”
According to him judicial decision have at all time enjoyed high authority as
indications of law partly because of the high status of the judges in the social &
political community & partly because of the importance of the issues that they decide.

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

BASIC MAXIM:

"Stare decesis et non quieta movere"

Translation: “Stand by what has been decided and do not unsettle the
established”.

DOCTRINES OF PRECEDENT:

RATIO DICIDENDI

A decision is cited as a precedent or authority to be followed in other cases if it is

based on some/same principles of law.
Every sentence uttered by the judge in deciding the case does not impose a new rule
of law; it is only the ratio decidendi that is binding.
E.g. when a dispute comes before a judge he picks out the material fact and
the Ratio Decidendi is the conclusion reached by the judges on the basis of the
material facts/relevant facts.
These facts age recorded as legal prepositions. This is the reason or principle
of time & method to show place position) the decision or the ratio decidendi, and it is
regarded as authoritative for the subsequent cases, which were identical material.

OBITER DICTA

The principles on which the judge decides a case may be borrowed from
author system of law, a judge of one country can borrow principle of some other
country. These precedents do not have any legal force or effect in them. These give
rise to obiter dicta which have only persuasive (to cause (SMN) to do 5th, by means of
argument & reasoning)
Merely Historical Source.
The judges have no obligation to follow them. They will be followed only if the
reasoning is sound & flawless.
Example of persuasive precedents
For English Courts: Independent judges.
1. Foreign judgments especially American Courts
2. Superior Courts of other Common Wealth Countries
3. Judgment of the Privy Council. Where sitting as the final courts of appeal.
4. Judicial Dicts, statements of Law where of beyond the occasion & lay down a
rule that to irrelevant to the point in hand or is stated by way of analogy
merely, or is regarded as unduly wide by later Courts.

KINDS OF PRECEDENT

(a) (b) (c)

According to the Nature of Acceding to their influence According to the nature

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The rule laid down on future decisions of their Authority

Original Declaratory Authoritative Persuasive Absolute Conditional

KINDS OF PRECEDENTS:
There are three modes of classification:-

(a) According to nature of rule laid down;

(b) According to the influence exercised by them on the course of future
decisions, and
(c) According to the nature of their authority.

These are as under:

AUTHORITATIVE PRECEDENTS

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

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

An authoritative precedent is that which must be followed by the judge whether

they approve of it or not. It comes from a court superior to the court concerned. A
persuasive precedent is one which the judges are under no obligation to follow, but
which they will take into consideration and attach as much importance as it is
necessary. It has, however, no legal claim for recognition. Authoritative precedents
are rules of law, while persuasive are historical sources.

Authoritative precedents are of two kinds: (i) absolute, and (ii) conditional. By
absolute we mean the decision is absolutely binding and must be followed without
question, however erroneous it may appear to be. Absolute authority exists in three
cases in England: (1) Every court is absolutely bound by the decisions of courts
superior to itself; (2) The House of Lords is absolutely bound by its own decisions;
and (3) The Court of Appeal is bound by its own decisions and those of older courts
of co-ordinate authority.
According to the nature of their authority precedents are of following 2 kinds.

ABSOLUTE PRECEDENT

Absolute authoritative precedent is one when the court to which it is cited is bound to
follow it quite irrespective of whether in the opinion of that court it is nor is right
decision or wrong one for the judge’s discretion altogether excluded.

Produce Brokers Co. V. Olympia Oil & Cake Co., Ltd. (1916)
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L.J. Buckley Remarked

“I feel bound to pronounce the judgment, which I am about to deliver.
In England: High Courts create this binding precedent.
A single judge of the High Court is not bound by the earlier decision of
another High Court judge, nor can he overrule him. In case of conflict the matter goes
to the Divisional Bench.
Divisional Bench: is bound by its own decisions.

CONDITIONAL PRECEDENTS:

In every other case the authority of precedent is merely conditional. A

conditionally authoritative precedent is one which through ordinarily binding on the
courts, to which it is cited, is unable to be disregarded in certain circumstances.
For Example: The decision of the single judge of H.C. is absolutely
authoritative so far as the subordinate judiciary is concerned but it is only
conditionally binding if cited before the Divisional Bench of same H.C.
A conditionally authoritative precedent may be disregarded of the decision is
wrong decision. It may be wrong, if it is contrary to the already existing principle of
Law
Fallacious reasoning (reasoning based on error) when the reason for any particular
law ceased, does the law itself

Conditional: By conditional we mean a precedent which is normally binding on the

court, but which may be disregarded in certain limited circumstances. It may be over-
ruled or dissented from when it is not merely wrong but so clearly and seriously
wrong that its reversal is demanded in the interest of justice. Here the decision is not
only wrong and contrary to law but the rejection of it is not mischievous and does not
unsettle the law.

Disregard: A precedent may be disregarded when it is opposed to well-

existing rule of law or when it is opposed to reason. In such a case it is either over-
ruled by a Court of superior jurisdiction or a Court of concurrent jurisdiction refuses
to follow it.

ORIGINAL OR DECLARATORY:
Precedents are either original or declaratory. The former are those which
create or establish original or new rules of law, whereas the latter for reading merely
reiterate and apply an already existing rule of law. Both are equally a source of law.

Source of law: When a recognized rule of law already exists, the Court is to
follow it without question. Precedents, therefore, follows law and not amend or alter
existing law. It is therefore constitutive and not abrogative in its nature as source of
law.

MERITS OF PRECEDENTS:

According to Dr. Julius Stone, ‘precedent had played and will continue to play the
most important part in common law judicial achievements.’ It has the following
merits:
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1-In the Conformity with the law:

A precedent is always based on pure law.

2-Review of social contracts:

Precedents present for the instant case a rapid if incomplete review of social
contracts comparable to the present, and of a rule though suitable for those contexts
by other minds after careful inquiry.

3-Proper Interpretation:
Judicial precedents constitute an important guide to the proper interpretation
of statutes, their function bring to supplement, to principles of statue law.

4-Basis for common Law:

According to Prof. Salmond, the great body of common or unwritten law is almost
entirely the product old decided cases enshrined in various law reports.

5-Scientific development of Law:

Following of precedents leads to the scientific development of the law, in as
such as it is closely related to the facts of a case.

6-Mode of completion of modern trends and behavior:

Precedents are mode of completion of modern trends and behavior. It is
necessary that legislation should suffice the needs of changing society. Keeping in
view the modern trends and demands. The precedents are declared by higher courts.

7-Natural means to get justice:

Precedents remove the barriers between the courts of justice and the very spirit
and purpose of law which they are called on to administer justice. The forum of
judiciary is in fact the best way to get justice.

8-Practical Law:
Precedent is claimed to be practical law dealing with hypothetical cases in
anticipation of possible controversies.

9-Certainty:
Then some amount of certainty is found in precedents, as once a precedent has
been laid down, people can be sure of similar rulings to be given in similar cases.

10-Easily understandable:
Precedents serve the indicate what kind of result will be reached if a particular
premises or category is chosen for application in the factual situation and permit is
adopted, either drawn from other cases or judicially invented.

CASE
Hasedline Vs Daw: The common carrier cases gave the court a ready made
view of the result for the lift passenger, if that analogy were followed.
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DEMERITS OF THE PRECEDENTS:

As against the above advantages of the precedents, Prof. Austin pointed out
the following defects:
(1) Uncertain:
He observed that judiciary law (precedent) is difficult to ascertain. Tio the
bulk of community, precedents are unknown and also not easily knowable.
The principles of law lie buried deep in the voluminous law reports and it is
difficult to extricate them form the whole mess.

(2) Undetermined:
Precedents exist nowhere in fixed or determinate expressions. They lie in
concrete or they are implicated with the peculiarities of the particular cases by
the decisions whereon the law or rule was established.

(3) Complicated:
The process of abstraction and induction is however a delicate and difficult
process; its difficulty being proportioned to be number or cases from which
the rule must be abstracted, gathered and induced.

(4) Accessibility:
Consequently, a precedent is less accessible and knowable than a statue law.
(5) Clash with Logical Interpretation of Law:
Precedents sometimes drag towards illegal rules, which have no legal
provisions and are in clash with logical interpretation of law.

(6) No Test of Validity:

There is no certain test of validity of precedents as there are conflicting
decisions by different courts. Prof. Austin therefore, remarks that precedent is
uncertain as to the rules regarding its validity.

(7) Confusion in Selection:

Sometimes it is very difficult to select precedents as some authorities are in
favor of them and some are against them. This confusion of two different
angles on the same point leads towards ambiguity.

(8) No Abrogative Power:

Precedents are not abrogative. They have only constitutive efficacy and cannot
retraced its step for, the court can change the law only in the very act of
applying it to a given case.

(9) Made in Haste:

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Prof. Austin next observes that precedents are not only applied haste but are
also made in haste. They are made in hurry of judicial business, and not with
mature deliberation which legislation requires.

(10) Not Comprehensive:

Another objection that Prof. Austin urges is that in consequence of implication
of the ratio descend with the peculiarities of the decided case, the rule
established by the decision is never or rarely comprehensive. It is almost
confined to such future cases as closely resembling with the case actually
decided.

(11) Causes inconvenience:

Moreover it is very difficult to find and better precedent decided earlier. Lot of
labor is required in the search of a better precedent and also clash of
precedents leads towards inconvenience.

Factors which enhance the Binding Force of Precedents

Elements which enhance the Binding Force of Precedents

According to Prof. Austin, Denning, Holland, Maxwell and Oppenheim, the

following factors of precedents:
(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.

(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.
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(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:

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.
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(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.

ELEMENTS WHICH REDUCE THE BINDING FORCE OF PRECEDENTS

According to famous jurist like Salmond Hibbert, Roscoe Pound, Dicey and Keeton,
following are the factors which decrease the binding force of precedents

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 young’s 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:
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 it’s 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.
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7. Decision badly criticized:

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

8. Precedent Sub-Silentio
When a particular point involved in decision is not taken notice of and
it not fully argued, 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 principles 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 disregard 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 it’s the correct decision.
This problem does not arise nowadays as benches sit with uneven number of
members

13. Decision based on compromise:

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.
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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

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

CONCLUSION:
To conclude, the merits of precedent are more effective, fruitful and
constructive than the demerits. Precedents supplement the very objects of the
administration of justice and fulfill the needs and demands of changing society.
According to Prof. Salmond, a judicial precedent in England has the authority of law,
it is not merely evidence of law but is its source and the courts must follow it when
established.

We may further say that a precedent’s life is in its binding force. If it is not
binding, it is not more called a precedent, it is just considered to be ‘another decision
of the court’. To increase the binding force of precedent, the above mentioned factors
must be taken into consideration.