PRECEDENT - SUMMARY
Introduction
Judicial Precedent: The process where judges follow previously decided cases with
similar facts. It embodies the principle of stare decisis, meaning "to stand by the
decided."
Purpose: Provides consistency and predictability in the law by binding inferior courts
to apply legal principles set by superior courts.
Definitions and Key Concepts
Judicial Precedent: Legally binding rules or decisions by higher courts that lower
courts must follow in similar cases.
Keeton's Definition: "Judicial decisions to which authority in some measure has been
attached."
Gray's Definition: "Precedent covers everything said or done which furnishes a rule
for subsequent practice."
Components of Judicial Decisions
Ratio Decidendi: "Reason for deciding." The legal principle on which a decision is
based, forming the binding part of the judgment.
Obiter Dictum: Remarks made by judges that are not essential to the decision. They
are not binding but may hold persuasive value.
Nature of Precedent
Supplementary Role: Precedents fill gaps in the legal system without altering
established laws.
Authority: Precedents are given by expert judges and carry a presumption of
correctness, obligating courts to follow them in similar cases.
Judicial Precedent as a Source of Law
Precedent is a critical feature of common law systems, shaping laws alongside
legislation and custom.
Judges interpret and lay down new principles through their rulings, contributing to the
development of law.
Theories of Precedent
1. Declaratory Theory: Judges declare what the law has always been rather than
creating new law.
o Coke C.J.: Judicial decisions are the best proof of law, not a source.
o Willis v. Baddeley: There is no such thing as judge-made law.
o Criticism: Bentham and Austin argue that legislative power is not with courts.
Salmond contends that precedents make law as well as declare it.
2. Constitutive/Creative Theory: Judges create law, and their decisions are as valid as
any legislative enactment.
o Prof. Dicey: Significant parts of English law come from judges' decisions.
o Prof. Gray: Judges who interpret and declare law are the true lawmakers.
o Criticism: Judges do not have unrestricted power and must adhere to statutory
provisions. Judicial legislation is limited to the facts of the case and is bound
by ratio decidendi, not obiter dicta.
Types of Precedent
Original Precedent: A decision where no previous case exists, establishing a new
principle.
o Example: Donoghue v Stevenson (1932) established a duty of care between
manufacturer and consumer.
Declaratory Precedent: Applies an existing rule without creating a new one.
o Example: Using a previous ruling to decide a similar case without
establishing new principles.
Authoritative Precedent: Binding on subordinate courts.
o Absolute Authoritative: Must be followed regardless of approval.
o Conditional Authoritative: Binding but can be disregarded in special
circumstances.
o Example: The ratio decidendi of Donoghue v Stevenson on negligence.
Persuasive Precedent: Not binding but can influence decisions.
o Example: R v R (1991) used a Scottish High Court decision to overturn
marital rape.
Enhancing the Value of Precedent
Clarity and Precision: Clear legal reasoning in decisions enhances precedent value.
o Example: Brown v. Board of Education (1954) clearly articulated the
unconstitutionality of racial segregation.
Higher Court Decisions: Precedents from supreme courts carry more weight.
o Example: Marbury v. Madison (1803) established judicial review.
Consistency Over Time: Long-followed precedents are more valuable.
o Example: "Separate but equal" in Plessy v. Ferguson (1896) followed for over
half a century.
Broad Acceptance: Widely accepted precedents are more robust.
o Example: Rylands v. Fletcher (1868) on strict liability.
Social and Legal Relevance: Precedents addressing significant issues have enhanced
value.
o Example: Roe v. Wade (1973) on abortion rights.
Adaptability and Flexibility: Precedents that adapt to changing contexts are valued.
o Example: Fourth Amendment interpretations in Katz v. United States (1967)
and Carpenter v. United States (2018).
Detailed Judicial Opinions: Detailed reasoning enhances precedent value.
o Example: Obergefell v. Hodges (2015) on same-sex marriage.
Alignment with Fundamental Principles: Aligning with justice and fairness
increases value.
o Example: Miranda v. Arizona (1966) on informing suspects of their rights.
Influence on Legislation: Precedents that influence legislation are valuable.
o Example: Gideon v. Wainwright (1963) on the right to legal counsel.
Endorsement by Legal Scholars: Scholarly analysis enhances precedent value.
o Example: Marbury v. Madison (1803) on judicial review.
Weakening or Destroying Binding Force of Precedents
Abrogated Decision: Inconsistent with later statutes or overruled by higher courts.
o Example: Roe v. Wade (1973) overruled by Dobbs v. Jackson Women's
Health Organization (2022).
Affirmation or Reversal on Different Grounds: Decisions affirmed or reversed on
different grounds lose authority.
o Example: Young v. Bristol Aeroplane Co. Ltd (1944) on decisions given per
incuriam.
Ignorance of a Statute: Ignoring a statute undermines precedent authority.
o Example: Cassell & Co. Ltd v. Broome (1972) ignored statutory provisions.
Inconsistency with Higher Court Decisions: Ignoring higher court decisions
nullifies authority.
o Example: High Court decisions ignoring Supreme Court rulings.
Inconsistency Between Decisions of the Same Rank: Conflicting decisions of the
same rank offer no binding authority.
o Example: R v. Gould (1968) on interpretation conflicts.
Precedents Sub Silentio: Decisions made without argument on key points lose
authority.
o Example: Lancaster Motor Co. (London) Ltd v. Bremith Ltd (1941).
Equally Divided Courts: Decisions of equally divided courts are not binding.
o Example: U.S. v. Alcoa (1945) on equally divided decisions.
Erroneous Decisions: Decisions based on wrong principles can be overruled but
must maintain legal certainty.
