Precedent as source of law

The judicial precedent are another important source of law and gradually gained its importance as most of law is unwritten in english legal system and these judicial  precedents later on marked as milestones and were used for similar cases in the future.

Salmond defined precedents in 2 ways – (1) precedent as reported case law which were declared and followed by the courts and (2) in other sense, these precedent by courts not only have binding authority but must be followed. In order to make a precedents binding authority, it must satisfy 2 conditions – (i) Pronounced by courts by a sufficient senior and (ii) it must be ratio decidendi (the reason behind the decision).

Definition of Precedent

”Precedent is a judge-made law” – Jeremy Bentham

”Precedent as judiciary’s law” – Austin

”Precedents as those judicial pronouncements of the court which carry with them certain authority having a binding force” – Keeton

Kinds of Precedents

Precedents boardly dividend into 2 types – (i) authoritative and (ii) persuasive

Authoritative Precedent

Authoritative precedents are those which have greater binding authority on the subordinate courts which were declared by the superior court of law, in respect of judge approves it or not. For example, supreme court in india, the judgements of supreme court must be followed by the lower courts.

Persuasive Precedent

Persuasive precedents are those which has no obligation to follow by the judges but can be taken into consideration.For example, high courts in india, the judgements of one high court can be taken into consideration by another high court, if necessary.

Thus, authoritative precedents are considered as legal sources of law whereas the persuasive are considered as historical sources.

Kind of Persuasive precedents 

1. Foreign Judgements;

2. Decision of superior courts;

3. Judgement of privy council;

4. Judicial dicta (obiter dicta);

5. Authoritative text books and commentaries.

Original Precedent

Original precedents are those which are considered as standard in building legal system, these original precedents are treated as core aspect for shaping legal system. for example, Imagine a judge facing a completely new type of legal dispute, one that has never been encountered in their jurisdiction. They can’t simply rely on past cases. Instead, they must analyze the situation, consider relevant legal principles, and craft a decision that not only resolves the current dispute but also sets a standard for similar cases in the future. This decision, establishing a new legal rule, becomes an original precedent.

Declaratory Precedent

Declaratory precedents are not part of shaping the legal system, they just declare the laws and they just overrules a decision.under this theory, judges are declared as law finders but not law makers.

In india, supreme court overruled the decision in ‘Golaknath Case’ in the landmark judgement namely keshwanand bharati vs. state of kerala famously called the fundamental rights case and paved the path for basic structure doctrine theory.