Kinds of Precedents

Table of Contents

Law is a vast subject with a variety of sources to form its different branches. One of the main sources of law is precedents. The word “precedent” literally means “to precede”, which implies to something that has happened before. It is an entire event or example which is to be considered to make future/current decisions; serving as a guide or authority. Usually, while deciding a dispute, the judges- interpret the law, give shape to the existing law, develop a new principle or make changes to an existing one. The judgements or decisions found in judicial decisions of a superior court, act as precedents.

Definitions of precedents:

We can define precedents as:
(1) a law established by following earlier judicial decisions;

(2) system of jurisprudence based on judicial precedents rather than statutory laws;

Precedents have also been defined by eminent jurists as:

Gray’s definition: “ Precedent is everything said or done in a judgement which furnishes a rule for subsequent practise.”
Jenk’s definition: “Precedent is a decision by a competent court upon a disputed point of law which becomes a guide and authority to be followed by all courts.”

Precedents as defined under the various dictionaries:

Oxford dictionary definition: “ A previous instant or case which may be taken as an example of rule for subsequent cases is a precedent.”
Black’s dictionary definition: “ A precedent is a rule of law established for the first time by a court for a particular type of case, thereafter referred to in similar cases.”

Basis of Doctrine of Precedents:
The maxim of “stare decisis” forms the basis of the Doctrine of Precedents. Stare decisis means to stand by decided cases. In the Indian Legal System, the judges take guidance from previous decisions on the point and rely upon them. The decisions of the Apex court and High Courts are compiled and published. These reports are valuable from legal literature perspective.

Article 14 of the Indian Constitution states:

“The law declared by Supreme Court is to be binding on all courts, within the territory of India.”

Types of Precedents:

There are mainly four types of precedents:

Authoritative precedents.
Persuasive precedents.
Original precedents.
Declaratory precedents.

Let us now take a look at each of these types in further detail.

Authoritative precedents:

The authoritative precedents are binding in character. This type of precedents has to be followed by courts which are lower in authority whether they accept it or not. The authoritative precedents are regarded as legal sources of law, and are very widely used. For example, a judgement passed by the Supreme Court has to be followed by every other court in India as they are lower in hierarchy.

Authoritative precedents can be further classified into two types:

Absolute precedent: Absolute precedents can be defined as the type of precedents which have to, compulsorily be followed by the judges, whether they accept it or not.
Conditional precedent: Conditional precedents are binding in nature. They are not compulsory for judges to follow. The judges can follow these if they want, and can choose to not take them into account as well.

Persuasive precedents:

The precedents that do not have legal force in themselves. These precedents are just used by judges for reference purposes only. They may be applied in the court and are only of guiding nature. These precedents are also considered historical source of law. For example, authoritative textbooks, etc.

Original precedents:

These precedents establish or create law. These precedents are mostly formed when no past reference is available for a particular source of law. The judges come to an analogy when they have to form original precedents.

Declaratory precedents:

These precedents are mostly used to declare or apply existing rules and judicial decisions.

Ratio decidendi and obiter dicta:

The principle of precedents is based on the maxims of ratio decidendi and obiter dicta. Ratio decidendi literally means reason for a decision. According to Professor Keeton, ratio decidendi means “the law formulated by a judge to solve a particular problem.”

Obiter dicta, literally means an observation. It can be defined as,” the observations made by a judge which are not essential for the judgement reached. These are the non-essential rules of law laid down by the judge during a particular case on the related topic. So basically, the pronouncement of law that is not a part of ratio decidendi is obiter dicta. They are not necessarily binding in character.

For example, if the court dismisses the case because it is outside of its jurisdiction, but then gives an opinion on the merits of the case, it is just obiter dictum. Courts occasionally cite passages of obiter dicta found in the texts of previous cases’ opinions in making rulings, with or without accepting the cited passage’s status as obiter dicta.

Relevant case laws:

Donoghue v. Stevenson-“The facts of the case are two ladies went to a restaurant where they ordered a ginger beer bottle with ice-cream float. After consuming half of the drink when they poured more beer, they found a decomposed snail. After seeing this snail Mrs Donoghue suffered severe shock and gastroenteritis. So the main question is what was the ratio and obiter in this case by the House of Lords.The ratio, in this case, was the duty of care principle, and what was said by Lord Atkin manufacturer’s liability to the ultimate consumer for an injurious product in circumstances specified did owe a duty of care to the consumer. [27] he said that manufacturer owes a duty of care to the consumer and there was negligence on the part of the manufacturer.
Obiter of the case was neighbourhood principle they said that it may not only about manufacturer but there can be a lot of examples for people who owe a duty of care. For example in doctor and patient. So, ‘neighbourhood principle’ which evolved was only persuasive not binding. So in the ratio, you have to give the reasons.

Author: Vaishnavi Makne,
Symbiosis Law School, Nagpur

Kinds of Precedents