Judicial precedents are an important source of law. Discuss various kinds of precedents.

CS Executive · Jurisprudence, Interpretation and General Laws · PYQS · December 2024
Judicial precedents are an important source of law. Discuss various kinds of precedents.

Answer & Explanation:

Judicial Precedents as a Source of Law: Judicial precedents, also known as case law, are decisions of courts that serve as authority for future cases with similar facts or legal issues. They are a crucial source of law in common law systems, including India, where the principle of stare decisis (to stand by things decided) is followed. This means that lower courts are bound by the decisions of higher courts. Precedents may be classified into various kinds: Declaratory and Original Precedents: Declaratory Precedent: According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. It applies an established legal principle to a new set of facts. In advanced legal systems, declaratory precedents are more numerous. Original Precedent: An original precedent is one which creates and applies a new rule of law. It establishes a new legal principle where none existed before. While fewer in number, original precedents are highly significant as they develop the law. Both declaratory and original precedents have the same legal authority once established. Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. It is not a legal source of law in the strict sense but is regarded as a historical source. Examples include: Decisions of one High Court in India are persuasive precedents for other High Courts. Rulings of English and American Courts are persuasive precedents in India. Obiter dicta (remarks made by the way) in a judgment also have only persuasive value. Absolutely Authoritative Precedents: An authoritative precedent is one which the judges must follow, whether they approve of it or not. Its binding force is absolute, and the judge's discretion is entirely excluded. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent, an absolutely authoritative precedent is a legal source of law. In India: Every court is absolutely bound by the decisions of courts superior to itself. Subordinate courts are bound by the decisions of the High Court to which they are subordinate. A single judge of a High Court is bound by the decision of a bench of two or more judges. All courts are absolutely bound by decisions of the Supreme Court. Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason. However, this power is exercised sparingly and with caution.

Topics: Jurisprudence

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