Simply Precedent means the decision of the court. It is one of the main sources of law and playing vital role to develop the law. Basically, it is a judicial method by which the decisions of the court become law for subsequent followed.
- According to the Oxford Dictionary of Law, ‘Precedent is a previous instance or case which is or may be taken as an example or rule for subsequent case, or by which some similar act or circumstances may be supported or justified.’
- According to Prof. Keeton, ‘A judicial precedent is a judicial decision to which authority has in some measure been attached.’
- According to Prof. Gray, ‘Precedent covers everything said or done which furnishes a rule for subsequent practice.’
- According to Prof. Salmond, ‘A precedent is a judicial decision which contains in itself a principle.’
- In the famous case Re Hallet’s Estate (1879), Sir George Jessel refers that, ‘Precedent is a judicial principle which the judge follows in deciding a case before him.’
1. Original President:
An original precedent is one which contains a new principle of law; which creates a new rule for the first time.
2. Declaratory Precedent:
A declaratory precedent is one which is merely the application of an already existing rule of law. In the case of a declaratory precedent, the rule is applied because it is already law.
3. Authoritative Precedent:
An authoritative precedent is one which judges must follow whether they approve of it or not. Authoritative precedent is again two kinds. –
(a) Absolute Authoritative Precedent:
An absolute authoritative precedent is one which is absolutely binding upon judges and which must be followed by them however unreasonable and erroneous it may be considered to be.
(b) Conditional Authoritative Precedent:
A conditional authoritative precedent is one which possesses merely with condition and it may be disregarded by the judges under certain circumstances.
4. Persuasive Precedent:
A persuasive precedent is one which the judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve.
##. Various Parts President:
A president may have two parts.-
- Ratio decidendi
- Obiter dicta / Obiter dictum
a) Ratio decidendi:
Ratio decidendi is that part of the president which the judges are bound to follow.
According to Prof. Salmond, ‘A president is a judicial decision which contains in itself a principle. The underlying principal which thus forms its authoritative elements is often termed the Ratio decidendi.’
According to Prof. Holand, ‘The ratio for the decision of a particular case or the principle of law on which the decision of a particular case is based is known as its Ratio decidendi.’
According to Prof. Ruper Cross, ‘A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.’
b) Obiter dicta / Obiter dictum:Obiter dictum (usually used in the plural, obiter dicta) is a Latin phrase meaning “other things said”, that is, a remark in a legal opinion that is “said in passing” by any judge or arbitrator. It is a concept derived from English common law, whereby a judgment comprises only two elements: ratio decidendi and obiter dicta. For the purposes of judicial precedent, ratio decidendi is binding, whereas obiter dicta are persuasive only.
