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    Saturday, 7 February 2015

    Precedent and its kinds

    1. Precedent
    Precedent is meant by anything said or done which is quoted and cited as authority for subsequent conduct. Precedent is created by judicial decision pronounced by courts which may be given either by a superior or a subordinate Court. A judicial decision is a precedent when is creates a new rule; otherwise it is a judgment as between the parties.

    2. Nature of Precedent
    A precedent is purely constitutive and in no degree abrogation. This means that a judicial decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow the same. They cannot substitute their opinions for the established rule of law.
    Precedent occupies in important position on English Law. Much of the English law has been created by the Judges. It is only in the British legal system that precedent is recognized as of binding authority if before the time of James. Precedents were cited merely indicating true law.

    3. Binding force of Precedent
    Precedent has binding force because:-
    • Administration of Justice has been concentrated in the hands of judges.
    • The judges as a body of legal experts can properly law down the law for the bar.
    • When a case is decided, it is presumed that the decision is correct. A point once decided between the parties become a re judicta and cannot again be litigated upon, even if a decision be incorrect.
    • The rule that the law as previously laid down must be followed induces confidence in the minds of the litigants.
    • Administration of justice becomes even handed and fair for a rule already laid down is followed in all subsequent cases.

    4. Classification of Precedent
    Precedents may be classified into three divisions; (i) according to the nature of the rule laid down, (ii) according to the influence exercised by them on the course of future decisions, and (iii) according to the nature of the authority. Those under (i) may be described as declaratory and original precedents, those under (ii) as authoritative and persuasive precedents, and those under (iii) as precedents of absolute authority and of condition authority. A seriatim description of these forms is given below;

    a. Declaratory and Original Precedents
    i. Declaratory precedents
    Declaratory precedents are those which do not lay down a new rule of law but only declare a principle of law already existing. When the law is already sufficiently well evidence, as when it is embodied in a statute or set forth with fullness and clearness is some comparatively modern case, the reporting of declaratory decisions is merely a needless addition to the great bulk of our case law. Such precedents merely declare the law.

    ii. Original Precedents
    Original precedents are those which lay down a new rule of law. These are the outcome of the internal exercise by the courts of their privilege of developing the law while sitting to administer it. Such precedents make the law.

    b. Authoritative and persuasive precedents
    i. Authoritative precedents
    Authoritative precedents are those which must be followed whether the Judge deems the principle laid down as correct or not. Thus, the decisions of the High Court are authoritative precedents for the subordinate Courts and the decisions of the Supreme Court are authoritative precedents for the High Courts and all other subordinate Courts.
    ii. Persuasive precedents
    Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of Indian high courts and the Supreme Court of India or of other Foreign Courts are merely persuasive precedents for the Courts in Pakistan.

    c. Precedent of absolute authority and of conditional authority
    i. Precedents of absolute authority
    Precedents of absolute authority are those which are absolutely binding, however, unreasonable or erroneous they may appear to be. In this sense also the precedents of superior Courts are precedents of absolute authority for the inferior or subordinate courts. Similarly, a decision of the Full Bench is binding on a Bench consisting of two or more judges of the same and subordinate courts.

    ii. Precedents of conditional authority
    Precedents of conditional authority are those which are binding but not absolutely. Thus, a decision of a single judge of the High Court is only a conditional authoritative precedent for a Judge of the same or another High Court.
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    Item Reviewed: Precedent and its kinds Rating: 5 Reviewed By: Usman Ali
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