Precedent
#Precedent
as a Source of Law:
·
Judicial
precedent is an imp source of law and is as important as Custom and
Legislation.
·
Meaning:
à A precedent means a previous instance or case which is or maybe taken as an example of rule for subsequent cases, or by which some similar act or circumstances maybe supported or justified.
à In common parlance it means something said or done that maybe serve to authorise or justify further acts of the same or similar kind.
à It means some set pattern guiding the future conduct.
à A precedent means a previous instance or case which is or maybe taken as an example of rule for subsequent cases, or by which some similar act or circumstances maybe supported or justified.
à In common parlance it means something said or done that maybe serve to authorise or justify further acts of the same or similar kind.
à It means some set pattern guiding the future conduct.
·
According to Jenks:
à A judicial precedent in a decision by a competent court of Justice upon a disputed point of law, becomes not merely a guide but an authority to be followed by all courts of inferior jurisdiction administering the same system until it has been overruled by superior court of Justice or by a Statue, e.g.- Act of Parliament.
à In short we can say – precedent means the guidance or authority of past decision for the future cases.
à Decisions which give new rule or principle are called Judicial Precedents. The application of the judicial precedents is governed by different principles in different legal system. These principles are called Doctrine of Precedent.
à A judicial precedent in a decision by a competent court of Justice upon a disputed point of law, becomes not merely a guide but an authority to be followed by all courts of inferior jurisdiction administering the same system until it has been overruled by superior court of Justice or by a Statue, e.g.- Act of Parliament.
à In short we can say – precedent means the guidance or authority of past decision for the future cases.
à Decisions which give new rule or principle are called Judicial Precedents. The application of the judicial precedents is governed by different principles in different legal system. These principles are called Doctrine of Precedent.
# In what
sense is the Precedent binding?
·
They
influence reasoning à undoubtedly, they are not binding like the
warrant issued by a magistrate, but are, more or less, a matter influencing the
reasoning.
·
They
are made on the basis of argument.
# Factors
weakening the binding force of Precedent:
·
Legislation
à A statue or a statutory rule, enacted subsequent to a decision, may expressly or impliedly abrogate the decision.
à After such a Statue the precedent loses its authority completely, and the courts are guided by the Statue and by the Precedent.
à A statue or a statutory rule, enacted subsequent to a decision, may expressly or impliedly abrogate the decision.
à After such a Statue the precedent loses its authority completely, and the courts are guided by the Statue and by the Precedent.
·
Reversal/Over-Ruling
à Reversal takes place when a decision given by a lower court is reversed by an appellate court in appeal.
à If a decision has been reversed it has no binding effect.
à Over-ruling takes place when a higher tribunal or the same tribunal declares a decision to be wrong in a subsequent case.
à Reversal takes place when a decision given by a lower court is reversed by an appellate court in appeal.
à If a decision has been reversed it has no binding effect.
à Over-ruling takes place when a higher tribunal or the same tribunal declares a decision to be wrong in a subsequent case.
·
Decision
is not binding if it was given in ignorance of a statue on a rule having the
force of a Statue.
·
A
decision given by a court in ignorance of a decision of a higher tribunal,
which is clearly inconsistent with it, has NO BINDING FORCE.
·
Precedent
– not fully argued.
·
In
the interest of public good or public welfare.
# Precedent has following
two theories:
·
Declaratory
Theory;
Authoritative or Persuasive
Theory.
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