INTRODUCTION
Today, I will talk about two very important
concepts, precedent and stare decisis. We have heard these terms quite often
and I am sure that many of you would already be aware about their respective
meanings. After listening to this show, the audience would be able to gather a
better understanding of the jurisprudential basis and the nature of these
concepts.
MEANING OF ‘PRECEDENT’
Let us first understand the concept of precedent. “Precedent”
is defined as: -
1. “The making of law by a court in
recognizing and applying new rules while administering justice.” or
2. “A decided case involving similar facts
or issues.”
Thus, “a precedent is a judicial decision
which contains in itself a principle. The underlying principle which thus forms
its authoritative element is often termed as ratio decidendi. The concrete
decision is binding between the parties to it, but it is the abstract ratio
decidendi which alone has the force of law as regards the world at large.”
TYPES OF ‘PRECEDENT’
Now, let us also discuss the types of precedents.
They are as follows: -
a. Binding Precedent – “A precedent
that a court must follow.”
b. Declaratory Precedent – “A
precedent that is merely the application of an already existing legal rule.”
c. Original Precedent – “A precedent
that creates and applies a new legal rule.”
d. Persuasive Precedent – “A
precedent that is not binding on a court, but that is entitled to respect and
careful consideration.”
e. Precedent Sub Silentio – “A
legal question that was neither argued nor explicitly discussed in a judicial
decision but that seems to have been silently ruled on and might therefore be
treated as a precedent.”
MEANING OF ‘STARE DECISIS’
Those were the different types of precedents. Now,
let us understand the principle of stare decisis. “Stare
decisis” has been defined as “the doctrine of precedent, under which
it is necessary for a court to follow earlier judicial decisions when the same
points arise again in litigation.” Thus, the genesis of stare decisis
lies in the concept of precedent.
We also see that “the rule of adherence to
judicial precedents finds its expression in the doctrine of stare decisis.”
According to this doctrine, when a point or a principle of law has been once
decided by a court, it will no longer be considered as open to examination,
unless for urgent or exceptional reasons.
The principle of stare decisis is important
because “an interpretation once deliberately put upon the provisions of a
statute should not be departed from without grave reasons.”
ORIGIN OF ‘STARE DECISIS’
Further, the Doctrine or Principle of Stare
Decisis stems from various Latin Maxims and with time, various connotations
have been attached to it. In earlier times, the prevalent maxim was “stare
rationibus decidendis” that literally means to keep to the ratio
decidendi of past cases. Basically, a case is only authority for what it
actually decides. Later on, this view got modified and the judiciary has now moved
on to another maxim, “stare decisis et non quieta movere” that
means “to stand by the things decided, and not to disturb settled points”
or “to adhere to precedents, and not to depart from established
principles.”
EXCEPTIONS
It is clear that the principle of stare decisis does
stem from the principle of precedent. But we must not see these principles and
doctrines in isolation. Sometimes an earlier precedent is followed and
sometimes a new precedent is laid down. But what about the cases where the
doctrine of precedent or stare decisis are not followed. The exception to the
principles of precedent and stare decisis is the concept of “overruling.” To
overrule means “to overturn or set aside a precedent by expressly
deciding that it should no longer be controlling law.” When a precedent
is overruled, it becomes “null and void, like a repealed statute, and a
new principle is authoritatively substituted for the old.”
PURPOSE AND CONCLUDING REMARKS
The purpose of these concepts is to provide
certainty to law. In every society, people base their decisions on the
prevalent law. If the law will swing like a pendulum, then it would become very
difficult for the common populace to have any certainty in their decision
making. “The stability of many of the most important institutions of
society depends upon the permanence, as well as the certainty, of the
construction placed by the judiciary upon the fundamental law.” If the
Judiciary fails in this duty, then eventually, the people and the society would
lose their trust in the institution of judiciary and such a situation would not
be conducive for the furthering the rule of law in any society. Therefore,
because of such reasons, the concepts of precedent and stare decisis are
considered to be extremely important in the field of law.
List of Authorities Referred To:
Black’s Law Dictionary, Eighth Edition.
Salmond on Jurisprudence.
William M. Lile, Brief Making and the Use of
Law Books.
Rupert Cross & J.W. Harris, Precedent in
English Law.
Henry Campbell Black, Handbook on the
Construction and Interpretation of the Laws.
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