Sources of Law - Precedent

8/18/2019 Sources of Law - Precedent

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Sources of Law - Precedent

Guided by – Prof. Eqbal Husain | Submitted by- Mohd.bidHussain nsari

3

rd

Semeste

LEGAL

METHO

DS

S OURCES OF L AW - P RECEDENT


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It is my imperative duty to thank the following people for the successful completion

my Legal Methods project,

- Professor Eqbal Husain for the clarity he brings into teaching thus enabling u

to have a better understanding of his subject. I also feel obliged to thank him fo

providing us with such easy topics to choose from.

- Tushar Gupta & Syed Nusrat Geelani , My resourceful classmates, who I ra

into in the library, thus un-expectedly starting and successfully completing

rough handwritten draft of this project within the next ten hours. hough it

possible for our language to seem similar, it has to be noted that given some

our group member!s insistence on not depending on one single book led to all o

us giving in e"ual contribution to the completion of this project.

- he very cooperative and friendly staff members in the #entral and Law Librar

who were instrumental in our finding the necessary books without wasting muc

time. It has to be noted that their contribution is essential as our $niversity is ye

to get a fully functional centrali%ed database for its libraries.

Table of Contents

1. Jurisprudence – efinition and e!planation"""""""""""...#

$. The Sources of la%"""""""""""""""""""""".

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'. (ie%s of )nalytical School of la%""""""""""""""""

#. (ie%s of Historical School of la%"""""""""""""""".*

+. Gray,s -ie%""""""""""""....................................................

. Precedent as Source of la%"""""""""""""""""".../

*. 0eanin of Precedent"""""""""""""""""""".12

. 3eason for reception for Precedent""""""""""""""...12/. Position of Precedent in Enland"""""""""""""""...11

12. Position of Precedent in 4ndia""""""""""""""""...1$

11.Hierarchy of 5ourts in 4ndia"""""""""""""""""..1'

1$.3atio decidendi and orbiter dicta"""""""""""""""..1+

1'.0ethods to find ratio""""""""""""""""""""...1

1#.6biter dicta""""""""""""""""""""""""..1*

1+.)d-antaes of 5ase 7a%.............................................................................1/

1.8iblioraphy""""""""""""""""""""""""$2

Jurisprudence – efinitions and E!planations.

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The word Jurisprudence is derived from a Latin word ‘ &urisprudentia’ which means knowledge

law. In the Latin language ‘ jure’ or ‘ juris’ means law and ‘ prudentia’ means “skill’ or ‘knowledge’

Jurisprudence then signifies a practical ‘knowledge of law and its application’ 2. It is a scien

which ascertains the fundamental principles of which the law is the expression. urist of differe

ages have tried to give a definition of the term “ &urisprudence!. "ut no definition can #e said to correct in its a#solute sense.

Austin3 defines ‘ jurisprudence’ as ‘'cience of law which deals with analysis of the concept or

underlying principles! .

$s per Salmnd %& 'urisprudence can #e defined in two senses

1. In the ‘(eneric sense’ 'urisprudence can #e defined as ‘)cience of *ivil Law’

2. In the ‘)pecific sense’ 'urisprudence can #e defined as the science of the first principle of ci

law.

$ccording to E!W! Pattersn"9 defines ‘ &urisprudence’ it means a #od+ of ordered knowledg

which deals with a particular species of law.

$ccording to Julius Stne# $ 'urisprudence means ‘Law+ers extroversion. It is the law+e

examination of the precepts% ideals and techni,ues of the law in the light derived from prese

knowledge in disciplines other than the law’.

# $hen we s%ea& of a %erson as a 'urist( what we im%ly in his &nowled)e which is of a s%ecial &indthat it is com%rehensi*e and such as to enable him to formulate )eneral truths+ or in other words th

&nowled)e is scienti,c. his means that the 'uris%rudence is in )eneral the same as that of all

science+ a com%lete )ras%( a systematic %enetration of its sub'ect-matter+ the %ower of followin) th

most )eneral %ro%ositions into their minutest rami,cation and in*ersely of ascendin) from the most

concrete care( throu)h all intermediate sta)es of thou)ht to the %rinci%le which )o*erns itMoyle,

Introduction to the Institute of Justinions. P. 61.

! .E. Holland( /he Elements of 0uris%rudence1 2#"th Ed.3( %%. 4( 5.

" /he Pro*ince of 0uris%rudence 6etermined1

7 Salmond( 0uris%rudence 2#8th Ed.3 %. #

9 E.$. Patterson( 0uris%rudence 2#st Ed.3 %.#

4 0ulius Stone( :he %ro*ince and ;unctions of Law< %. !9

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It is the name given to a t+pe of investigation into law% an investigation of an a#stract% general an

theoretical nature% which seeks to la+ the essential principles of law and legal s+stem. It%

philosoph+ of law attempts to correlate with )ocial values and provides practical solutions #+ w

of fusion of facts% 'ustice and value. The people of this world have formed certain ideas anconceptions a#out the nature if 'ustice and law. It involves the stud+ of general theoretical ,uestio

a#out the nature of law and legal s+stems% a#out the relationship of law to 'ustice% moralit+ an

a#out the social nature of law. It% as a science of law is primaril+ concerned with regulation

human conduct in accordance with the set values% needs and goals of each societ+. $s the value

needs and goals are of a changing character% the nature of jurisprudence also keeps on changing

cater to the need of a particular societ+.

Jurisprudence is the most important and the most useful of legal studies as it deals with th

fundamental principles on which rests the superstructure of law. It is ver+ helpful as it provides a

opportunit+ to #ring the theor+ and life into focus and how to think rather than 'ust to know.

furnishes such materials which ultimatel+ help in cultivating one’s own ideas in relation to

particular theor+.

Jurisprudence is a su#'ect whose knowledge is the #asis and the foundation of the whole leg

studies and that is wh+ it has considera#le importance for the law students% law teachers% practicin

law+ers and even the 'udges. It is not mere knowledge of law- it is something more than that.

The Sources of 7a%

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Like man+ other terms used in 'urisprudence% the word ‘surce’ has #een given more than o

meaning. The expression ‘surce % la&’ ma+ mean the origin from which rules of human condu

came into existence and derived legal force or #inding character. )ince the origin% growth and #as

of law has #een different in different stages of social development% different 'urists have pointed o

different sources as more authoritative. $ccording to some 'urists% a source of law is the socie

itself while for others will of the sovereign is considered to #e the exclusive source of law.

The expression ‘ source of law’ is capa#le of three meaning/

1. It ma+ mean the formal source that which confers #inding authorit+ as a rule and conve

the rule into law. The state% therefore% is the formal sources of law and for ever+ law th

t+pe of source is the same% the will of the state. 0o rule can have authorit+ as law unless

has received the express or tacit acceptance of the state.

2. The expression ‘source of law’ ma+ mean the place% where% if a person wants to g

information a#out the law% he goes to look for it. In this sense the term ‘ source’ means t

literary source i.e. that from which actual knowledge of the law ma+ #e gained% e.g

statutes% reports of decided cases and texts #ooks.

. The expressions ‘ sources of law’ ma+ mean that which supplies the matter on the content

the law% statute% precedents or 'udge made law% all come under this categor+. These are

material sources.

(ie%s of )nalytical School of 7a%:

1. Immediate author or (irect / $ustin gives three meanings of the term ‘sources of law’ the

immediate author of the law is the person or #od+ of persons #+ whom the rules was originall+

formulated giving it the force of law. )uch immediate sources can #e /

3a4 Legislature or 'udiciar+%

3#4$ political su#ordinate acting either as a legislature or 'udiciar+%

3c4 The persons whose conduct forms a custom%

3d4The person who #+ contract su#mits themselves to a rule of conduct towards each other.

$ustin o#served that either directl+ or remotel+ the sovereign or supreme legislature is t

immediatel+ and directl+ laws have different authors.5 Thus% the supreme legislature is the author

sources of the laws which it enacts.

5 Literal meanin) of the term /source1 is /risin) from the )round1 the ori)in or /the s%rin)1.

= ustin( 0uris%rudence >ol. ??( %. 98@ at %. 9#8

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2. )istorical documents. $ccording to $ustin the second meanings of the sources of law are th

earliest or original existing documents from which the #od+ of the law ma+ #e known

con'ectured e.g.% the digest and code of ustinian in 6ome% the writing of "racton% *oke an

Littleton are regarded as authoritative in their sense as the+ were manifestation of 7anu’s co

and commentaries of 8a'navalk+a% 9i'naeshwar etc. are examples of this kind of source.

. #auses. : The third meaning of the term ‘source’ denotes the causes which have #rought in

existence rules which have su#se,uentl+ ac,uired that force e.g.% custom% legislation% righ

'udicial decision% religious and scientific discussion etc.

)tarting with his #asic formulation of the definition of law as the command of the sovereign $ust

puts sole reliance on one point vi%., sovereign is the onl+ source of law. $ccording to him legislati

is the most appropriate% #ecause it is the most direct expression of the sovereign’s will. To this% *.

$llen opines% that no#od+ ever supposed that law consisted solel+ of legislation.


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legal and nonlegal materials upon 'udges customaril+ fall #ack in fashioning the rules which ma

up the law. ?ive such sources listed #+ him are listed #elow/

i. $cts of legislative organs%

ii. udicial precedents%

iii. @pinions of experts%iv. *ustoms%

v. Arinciples of moralit+ including axioms of pu#lic polic+.

It ma+ #e concluded that the onl+ recogniBed legal sources of law at present are

i. *ustom%

ii. Arecedent% and

iii. Legislation.

To these ma+ #e added one more vi%., ‘$greement which are valid under the law and which girise to conventional law’. It cannot% however% #e defined that the a#ove authentic sources of la

ma+ draw their content and matter from diverse channels% ma+ it #e religion% moralit+% e,ui

professional opinion% views of text writers% foreign law% foreign 'udgments% etc.

P3E5EENT )S ) S6;35E 6< 7)=

Judicial precedent is an independent source of law and is as important as custom and legislation.

fact% this doctrine of judicial precedent is a uni,ue feature of Cnglish law as also of the *ommoLaw *ountries. In Cngland udge pla+ed a significant role in developing the Cnglish Law. Duri

the middle ages when the Aarliament had not assumed the status of a sovereign law making #od+%

was left to the 'udges to define the law and la+ down legal principles. Thus% ad'udication in Cngla

made a great contri#ution towards the formulation and development of Cnglish law. It is said th

Cnglish law is mostl+ a 'udgemade law. This principle of law which was so common in Cngland

not known in countries like E.).$% India% $ustralia% and *anada and in man+ other *ommon La

countries where the doctrine of legal precedent has #een followed. In the continental countries lik

?rance% (erman+% and Ital+% however% the s+stem is different% there the 'udge look to legislation will of the legislature for interpretation of law and are not #ound to follow a previous decision of

higher court.

It is true from Cngland this doctrine of precedent of laws travelled to countries which have deriv

their legalit+ stems from Cngland. This does not mean however that the doctrine was not entire

foreign to 6oman law. $t 6ome although at the time of ustinian% 'udicial precedents and oth

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analogous t+pes of law were regarded as possessing onl+ persuasive authorit+. It is a#undantl+ cle

from the histor+ of 6oman law that during earlier periods the+ were regarded as having #indin

authorit+. That the 6omans were familiar with the idea is shown #+ the num#er of statutes an

*onstitutions either enacting that the+ should #e followed in su#se,uent cases or to the contrar

*icero enumerates res judicata as source of law and the Cmperor )eptinus )everus sa+s that t

authorit+ of an uninterrupted series of similar decided cases should have the force of a statute.

ustinian% it is true% esta#lished #+ the *onstitution the contrar+ principle that the+ were to ha

onl+ persuasive authorit+ #ut these earlier statutes and even the constitution of ustinian himse

makes it clear that the notion of precedent having the force of law was similar to the powers.

0eanin

$ precedent means a previous instance or case which is or ma+ #e taken as an example or rule f

su#se,uent cases. In common parlance it means something said or done that ma+ serve to authori

or 'ustif + further acts of the same or similar kind. $ccording to ;eeton% 'udicial precedent is

'udicial decision to which authorit+ has% in some measure% #een attached.12 In the words (ra+%

precedent covers ever+thing said or done which furnished a rule for su#se,uent practice.

$ccording to enks% a 'udicial precedent% in a decision #+ a competent court of 'ustice upon

disputed point of law% #ecomes not merel+ a guide #ut an authorit+ to #e followed #+ all courts

inferior 'urisdiction administering the same s+stem until it has #een overruled #+ superior court 'ustice or #+ a statute e.g.% the $ct of Aarliament.1& In short% we can sa+ precedent means t

guidance or authorit+ of past decisions for future cases.

3easons for the 3eception of Precedent

The 'ustification of the #inding rule of 'udicial precedent is #ased on several reasons. These are :

1. These are #ased on practical experience rather than on logic only. *The udge! sa+s $llen% “

the interpreter of social mind and he can easil+ adapt the law to the changing wants of tho

amongst whom the law is administered!.

#! Beeton( op. cit., %. @4.

#" Gray( op. cit., %. #@=.

#7 0en&s op. cit., %. 58.

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2. It is #ased on convenience in the sense that it provides settled law and thus saved the la#o

of 'udges.

. It prevents error of 'udgments #+ individual 'udges.

&. It also prevents partialit+ on the part of the 'udges.

F. It helps the law+ers to take a cautious view of the development of law on the #asis of pa

experience.

Position of Precedent in Enland

The doctrine of 'udicial precedent is firml+ settled in Cngland. The #inding character however exi

in cases of the inferior courts which are #ound #+ the decisions of the superior courts. $ superi

court is never #ound #+ the decisions of the lower courts. $gain% one court of similar 'urisdiction not #ound #+ the decision of the courts of coordinate 'urisdiction. The hierarch+ of court in Cngla

is as follows/

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Position of Precedent in 4ndia

Ender the =indu law the doctrine of precedent was recogniBed #+ =indu lawgiver. 7anu% t

renowned lawgiver of =indus% advocated the theor+ of precedent in order to settle dou#tful poin

of law. =e said “if it #e asked how it should #e with respect to 3points of4 of the law which have n

#een 3speciall+4 mentioned% 3the answer is4% that which "rahmans 3who are4 )ishtas propound sh

dou#tlessl+ have legal 3force4!1F. It was during the "ritish rule in India that the doctrine #ecam

ver+ important. In 151% 7r. Dorin suggested that statutor+ force to #e given this theor+. =e said%

think it should #e enacted #+ a regulation% that from a given period% the 'udgments of the court sha

#9 Manu Ah. ??( *erse( #8=

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...


#e considered as precedents #inding upon it and on the inferior courts in similar cases which m

arise thereafter!.1 8anavalk+a has also mentioned precedent as one of the sources of laws. 1 $ga

in the 7aha#harata15% it has #een suggested that since texts conflicts with each other and the purpo

of law is difficult to arrive at% the path adopted or shown #+ the great men should #e followe

=owever% it can #e pointed out here that in ancient =indu law the term ‘precedent’ is not used in t

modern sense of a direction coming from a court.

In the 1ol. ##( at !8( ado%ted from Morely(

dministration of 0ustice in ?ndia.

#5 Da'na*al&ya( Ah. ?( *erse 5.

#= he Mahabharata( >ana%ra*a Ah. "#"( *erse ##5.

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*onstitution of India provides that ‘the law declared #+ the )upreme *ourt shall #

#inding on all courts within the territor+ of India’. In $rticle 1&1 the expression ‘a

courts’ has #een used. 0ow the ,uestion comes whether all courts include )uprem

*ourt also.’ That is to sa+ whether )upreme *ourt is #ound #+ its own decision or not

In 1


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decision is the principle of law formulated #+ the 'udge for the purpose of deciding th

pro#lems #efore him.

$ 'udicial decision has a #inding force for su#se,uent cases #ut the whole 'udgment

not #inding onl+ a part of the 'udgment is #inding. @nl+ that part of the 'udgment in a

earlier decision is #inding which constitutes the ratio decidendi of that case. )tatemen

which are not partaking of the character of ratio decidendi can #e ignored whi

deciding the latter case. Cminent urists like (oodhard% Llewellen% Aaton and )awe

$ccording to (oodhard% ratio decidendi is to #e found #+ taking into consideration a

the facts treated as materials #+ the 'udge who decided the case. ?or him what

#inding is the conclusion reached #+ the 'udge on the #asis of% materials facts.

$ccording to )almond a precedent is a 'udicial decision which contains in itselfprinciple. The underl+ing principle which thus forms its authoritative element is ofte

termed the ratio decidendi. The view of )almond is ,uite correct in the sense that th

'udge will hold that the ratio decidendi of a case to #e found in the general princip

governing an earlier decision as long as the formulation of this principle was necessar

to the decisions of the actual issue #etween the litigants. =e further adds that th

principle of the case must #e rationall+ laid down- it should not #e #oarder tha

necessar+.

0ethods to find ratio

The discover+ of the ratio of a case ma+ #e a matter of great difficult+ #ecause a cas

ma+ have #een decided on its own facts% or the particular terms of its pleadings or o

the #asis of some admission or concession% and ma+ +ield no ratio or general princip

at all. @r the later court ma+ find itself una#le to discover the #asis on which thprevious court decided the precedent case- this greatl+ weakens the value of the case

a precedent.

The 'udgment in a precedent must% moreover% #e read secundum subjection materiem-

is a 'udgment in relation to the facts of a particular case and the 'udge ma+ not #e l+in

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down a rule for an+ case other than the one #efore him and precisel+ similar cases. If h

does la+ down a rule for kinds of cases other than that #efore him% the validit+ of th

propositions for other cases must #e considered if and when those other cases aris

when the rule ma+ #e regarded as too widel+ and generall+ stated.

)ome of the methods are listed #elow/

i. Classical r a0stractin met(d! The ascertainment of the ratio decidendi of

case depends upon a process of a#straction from the totalit+ of facts that occurre

in it. The higher the a#straction% the wider the ratio decidendi.

ii. Re1ersal test! $ccording to Arof. Jam#augh% he suggest that we should take th

proposition of law put forward #+ the 'udge% reverse or negate it and see if i

reversal would alter the actual decision also. If +es% the proposition is the rat part of it% otherwise not. This test% however% will not help in cases where n

proposition is given or when a court gives several reasons for its decision.

iii. 2aterial %acts t(er)! - atio decidendi is nothing more than the decision #as

on the material facts of the case. If in a later case material facts coincide with

are identical with those of the earlier one% then earlier case is a precedent in poin

The theor+ is% however% too simple. Different ratios can #e derived from

decision #+ taking different com#ination of material facts- there ma+ according

#e su#se,uent dou#t and dispute as to what the ratio of a particular decision is.

iv. $ case ma+ have not one #ut several ratio decidendi.

6biter dicta

The term obiter dicta literall+ mean statements #+ the wa+. In =als#ur+ Laws o

Cngland2> it has #een defined as )tatements which are not necessar+ to the decisio

which go #e+ond the occasion and la+ down a rule that is unnecessar+ for the purpo

in hand 3usuall+ termed dicta4 leave no #inding authorit+ on another court% though thema+ have some merel+ persuasive efficac+. $ccording to Tal#ot% .%21 an obiter dictu

is an opinion on some point which is not necessar+ for the decision of the case. Th

!8 >ol. ?( at %. !9#.

!# E%ressed in the case of Dew *. United British Steamship o. !td., "1#$%& 1'# !( 6$%

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emphasis is not onl+ on the opinion #ut also on the point. It is not merel+ an expressio

of opinion unconnected with the cases for determination. $ccording to ;eeton obit

dictum are o#servations made #+ the 'udge #ut which are not essential for the decisio

reached.

In Jai&ant Ra and t(er v. State % Raast(an%22

The court o#served dicta which do not form the integral part of the chain of reasonin

directed to the ,uestions decided ma+ #e regarded as +obiter!.

In Cngland an obiter dicta has no #inding effect either upon a coordinate court or upo

a su#ordinate court. $n obiter dicta of the =ouse of Lords would undou#tedl+ #entitled to the highest respect. "ut a 'udge in Cngland would not feel that he would #

#ound #+ an opinion expressed #+ the higher tri#unal. In India% a departure has #ee

made of the principle operating in Cngland with regard to obiter dicta. The =igh cour

have held almost uniforml+ that the+ are #ound #+ the obiter dictum of the )uprem

*ourt of India.

In 2(andas v. Sattanat(an43

Their Lordship o#served that the )upreme *ourt is the highest 'udicial tri#unal in Ind

and it is as much necessar+ in the interest of 'udicial uniformit+ and 'udicial disciplin

that all the =igh *ourts must accepts as #inding the obiter dicta of the )upreme *ou

in the same spirit as the =igh *ourt’s accepted the obiter dicta of the Ariv+ *ounci

"ut if the obiter dicta is on a ,uestion that did not arise for determining #+ the )uprem

*ourt and is a mere expression of opinion given #+ the wa+ then it is not #inding.

In Nuruddin A(med v. State % Assam45

!! ?F #@4# Fa' !98.

!" 94 om LF ##48.

!7 ?F #@94 ssam 7=.

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It was laid down that ‘The o#servations of their Lordships of the )upreme *ourt if the

were made obiter would #e entitled to the highest esteem from the =igh *ourt. Th

would #e more so when the =igh *ourt finds itself in respectful agreement with th

view which prevailed with their Lordship.’

In As(, Le)land Case4"

It was held that ‘The biter dicta of a 'udge of the )upreme *ourt even in a dissentin

'udgment are entitled to high respect% especiall+ if there is no direct decision

conclude the ,uestion of at issue’.

)d-antaes of 5ase la%

The principle advantages of caselaw are listed #elow/

i. *aselaw is the outcome of practical needs considered #+ men of the highe

practical experience and therefore it is sure to #e in harmon+ with the needs

societ+. In other words% the law that a 'udge makes is #ound to #e in conformi

with pu#lic opinion #ecause the 'udge himself is a mem#er of societ+ for whic

he la+s down the law.

ii. In *aselaw it is the ratio that matters and udge can take his own time to expla

full+ the principle he la+s down.

iii. $ udge in formulating a rule of law is tr+ing to solve an actual concrete pro#lem

=ence% the law that the 'udge makes is #ound to #e more satisf+ing and comple

than the law made #+ the legislature.

iv. *aselaw is #ound to #e of fine workmanship as it formulated #+ people who ha

a special training in law.

!9 ?F #@95 Mad !4".

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8iblioraphy1. Jurisprudence by Sal>ond

$. T.E. Holland, ‘The Elements of Jurisprudence !"3th Ed.#'. Salmond, Jurisprudence !"$th Ed.##. E.%. Patterson, Jurisprudence !"st Ed.#+. Julius Stone9 ?The pro-ince and aBin C*th Ed.D

. Gray9 The Nature and sources of la% C$nd Ed.9 Ne% orB9 1/$1D

3eferences fro> the 4nternet". %%%.oole.co>&. '''.la'.cornell.edu('e)(*urisprudence3. '''.merriam+'ebster.com(dictionar(*urisprudence-. '''.*asononline.com(la'(*uris.htm. '''.indian/anoon.com0. '''.1a/ilno.".com2. '''.scconline.com.

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Sources of Law - Precedent