Doctrine of Precedent and Stare Decisis - An Overview

 

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.