Sources of Law - Precedent

Guided by Prof. Eqbal Husain | Submitted by- Mohd.Abid

Hussain Ansari

LEGAL
METHO
DS

SOURCES OF LAW - PRECEDENT

3rd Semester

Sources of Law - Precedent

It is my imperative duty to thank the following people for the successful completion of
my Legal Methods project,
- Professor Eqbal Husain for the clarity he brings into teaching thus enabling us
to have a better understanding of his subject. I also feel obliged to thank him for
providing us with such easy topics to choose from.
- Tushar Gupta & Syed Nusrat Geelani, My resourceful classmates, who I ran
into in the library, thus un-expectedly starting and successfully completing a
rough handwritten draft of this project within the next ten hours. Though it is
possible for our language to seem similar, it has to be noted that given some of
our group members insistence on not depending on one single book led to all of
us giving in equal contribution to the completion of this project.

- The very cooperative and friendly staff members in the Central and Law Library
who were instrumental in our finding the necessary books without wasting much
time. It has to be noted that their contribution is essential as our University is yet
to get a fully functional centralized database for its libraries.

Table of Contents
1. Jurisprudence Definition and explanation...4
2. The Sources of law.6
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Sources of Law - Precedent

3. Views of Analytical School of law6
4. Views of Historical School of law.7
5. Grays view....................................................8
6. Precedent as Source of law...9
7. Meaning of Precedent.10
8. Reason for reception for Precedent...10
9. Position of Precedent in England...11
10. Position of Precedent in India...12
11.Hierarchy of Courts in India..13
12.Ratio decidendi and orbiter dicta..15
13.Methods to find ratio...16
14.Obiter dicta..17
15.Advantages of Case Law.............................................................................19
16.Bibliography20

Jurisprudence Definitions and Explanations.

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The word Jurisprudence is derived from a Latin word Jurisprudentia which means knowledge of
law. In the Latin language jure or juris means law and prudentia means skill or knowledge1.
Jurisprudence then signifies a practical knowledge of law and its application 2. It is a science
which ascertains the fundamental principles of which the law is the expression. Jurist of different
ages have tried to give a definition of the term Jurisprudence. But no definition can be said to be
correct in its absolute sense.
Austin3 defines jurisprudence as Science of law which deals with analysis of the concept or its
underlying principles.
As per Salmond,4 jurisprudence can be defined in two senses
1. In the Generic sense jurisprudence can be defined as Science of Civil Law
2. In the Specific sense jurisprudence can be defined as the science of the first principle of civil
law.
According to E.W. Patterson5, defines Jurisprudence it means a body of ordered knowledge,
which deals with a particular species of law.
According to Julius Stone6, jurisprudence means Lawyers extroversion. It is the lawyers
examination of the precepts, ideals and techniques of the law in the light derived from present
knowledge in disciplines other than the law.
1 When we speak of a person as a jurist, what we imply in his knowledge which is of a special kind
that it is comprehensive and such as to enable him to formulate general truths; or in other words the
knowledge is scientific. This means that the jurisprudence is in general the same as that of all
science; a complete grasp, a systematic penetration of its subject-matter; the power of following the
most general propositions into their minutest ramification and inversely of ascending from the most
concrete care, through all intermediate stages of thought to the principle which governs itMoyle,
Introduction to the Institute of Justinions. P. 61.
2 T.E. Holland, The Elements of Jurisprudence (13 th Ed.), pp. 6, 7.
3 The Province of Jurisprudence Determined
4 Salmond, Jurisprudence (10th Ed.) p. 1
5 E.W. Patterson, Jurisprudence (1st Ed.) p.1
6 Julius Stone, The province and Functions of Law p. 25
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It is the name given to a type of investigation into law, an investigation of an abstract, general and
theoretical nature, which seeks to lay the essential principles of law and legal system. It, as
philosophy of law attempts to correlate with Social values and provides practical solutions by way
of fusion of facts, justice and value. The people of this world have formed certain ideas and
conceptions about the nature if justice and law. It involves the study of general theoretical questions
about the nature of law and legal systems, about the relationship of law to justice, morality and
about the social nature of law. It, as a science of law is primarily concerned with regulation of
human conduct in accordance with the set values, needs and goals of each society. As the values,
needs and goals are of a changing character, the nature of jurisprudence also keeps on changing to
cater to the need of a particular society.
Jurisprudence is the most important and the most useful of legal studies as it deals with the
fundamental principles on which rests the superstructure of law. It is very helpful as it provides an
opportunity to bring the theory and life into focus and how to think rather than just to know. It
furnishes such materials which ultimately help in cultivating ones own ideas in relation to a
particular theory.
Jurisprudence is a subject whose knowledge is the basis and the foundation of the whole legal
studies and that is why it has considerable importance for the law students, law teachers, practicing
lawyers and even the judges. It is not mere knowledge of law; it is something more than that.

The Sources of Law

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Like many other terms used in jurisprudence, the word source7 has been given more than one
meaning. The expression source of law may mean the origin from which rules of human conduct
came into existence and derived legal force or binding character. Since the origin, growth and basis
of law has been different in different stages of social development, different jurists have pointed out
different sources as more authoritative. According to some jurists, a source of law is the society
itself while for others will of the sovereign is considered to be the exclusive source of law.
The expression source of law is capable of three meaning:
1. It may mean the formal source that which confers binding authority as a rule and converts
the rule into law. The state, therefore, is the formal sources of law and for every law this
type of source is the same, the will of the state. No rule can have authority as law unless it
has received the express or tacit acceptance of the state.
2. The expression source of law may mean the place, where, if a person wants to get
information about the law, he goes to look for it. In this sense the term source means the
literary source i.e. that from which actual knowledge of the law may be gained, e.g.,
statutes, reports of decided cases and texts books.
3. The expressions sources of law may mean that which supplies the matter on the content of
the law, statute, precedents or judge made law, all come under this category. These are all
material sources.
Views of Analytical School of Law:
1. Immediate author or Direct: - Austin gives three meanings of the term sources of law- the
immediate author of the law is the person or body of persons by whom the rules was originally
formulated giving it the force of law. Such immediate sources can be :
(a) Legislature or judiciary,
(b) A political subordinate acting either as a legislature or judiciary,
(c) The persons whose conduct forms a custom,
(d) The person who by contract submits themselves to a rule of conduct towards each other.
Austin observed that either directly or remotely the sovereign or supreme legislature is the
immediately and directly laws have different authors. 8 Thus, the supreme legislature is the author or
sources of the laws which it enacts.
7 Literal meaning of the term source is rising from the ground the origin or the spring.
8 Austin, Jurisprudence Vol. II, p. 509 at p. 510
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2. Historical documents. - According to Austin the second meanings of the sources of law are the
earliest or original existing documents from which the body of the law may be known or
conjectured e.g., the digest and code of Justinian in Rome, the writing of Bracton, Coke and
Littleton are regarded as authoritative in their sense as they were manifestation of Manus code
and commentaries of Yajnavalkya, Vijnaeshwar etc. are examples of this kind of source.
3. Causes. The third meaning of the term source denotes the causes which have brought into
existence rules which have subsequently acquired that force e.g., custom, legislation, rights,
judicial decision, religious and scientific discussion etc.
Starting with his basic formulation of the definition of law as the command of the sovereign Austin
puts sole reliance on one point viz., sovereign is the only source of law. According to him legislation
is the most appropriate, because it is the most direct expression of the sovereigns will. To this, C.K.
Allen opines, that nobody ever supposed that law consisted solely of legislation. 9 The most extreme
Austinian dogma could not abolish the distinction between ius and lex.
Views of Historical School of Law
As against the views expressed by the jurists belonging to the Analytical School, the Jurists of
Historical School take an entirely different position. Thus, Savigny, the founder of Historical School
says that law is found, it is not made.10 It is the spontaneous evolution of the natural spirit having its
basis in the social pressure behind it. The foundation of law has its existence; its really in the
common consciousness of the people (Volkgiest). This common consciousness is manifested in the
practice, usages and customs of the people. Therefore, custom is the source of law. To him source of
law meant the material from which law derives not its validity but its content. Thus, he disagrees
with Austins and Analytical Schools view that the sovereign or the supreme legislature is the sole
source of law.
Grays view
John Chipman Gray, an American jurist, drew a sharp distinction between what he called the law
on the one hand and the source of law on the other hand. 11 To him the law consists of the rules
authoritatively laid down by the courts in their decisions, while he looked for its sources to certain
9 C.K. Allen, Law in the making (7th Ed.) p. 2.
10 Maine and Puchta agreed with this view.
11 Gray, The Nature and sources of law (2nd Ed., New York, 1921) pp. 123-125
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legal and non-legal materials upon judges customarily fall back in fashioning the rules which make
up the law. Five such sources listed by him are listed below:
i.
ii.
iii.
iv.
v.

Acts of legislative organs,

Judicial precedents,
Opinions of experts,
Customs,
Principles of morality including axioms of public policy.

It may be concluded that the only recognized legal sources of law at present arei.
ii.
iii.

Custom,
Precedent, and
Legislation.

To these may be added one more viz., Agreement which are valid under the law and which give
rise to conventional law. It cannot, however, be defined that the above authentic sources of law
may draw their content and matter from diverse channels, may it be religion, morality, equity,
professional opinion, views of text writers, foreign law, foreign judgments, etc.

PRECEDENT AS A SOURCE OF LAW

Judicial precedent is an independent source of law and is as important as custom and legislation. In
fact, this doctrine of judicial precedent is a unique feature of English law as also of the Common
Law Countries. In England Judge played a significant role in developing the English Law. During
the middle ages when the Parliament had not assumed the status of a sovereign law making body, it
was left to the judges to define the law and lay down legal principles. Thus, adjudication in England
made a great contribution towards the formulation and development of English law. It is said that
English law is mostly a judge-made law. This principle of law which was so common in England is
not known in countries like U.S.A, India, Australia, and Canada and in many other Common Law
countries where the doctrine of legal precedent has been followed. In the continental countries likes
France, Germany, and Italy, however, the system is different, there the judge look to legislation or
will of the legislature for interpretation of law and are not bound to follow a previous decision of a
higher court.
It is true from England this doctrine of precedent of laws travelled to countries which have derived
their legality stems from England. This does not mean however that the doctrine was not entirely
foreign to Roman law. At Rome although at the time of Justinian, judicial precedents and other
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analogous types of law were regarded as possessing only persuasive authority. It is abundantly clear
from the history of Roman law that during earlier periods they were regarded as having binding
authority. That the Romans were familiar with the idea is shown by the number of statutes and
Constitutions either enacting that they should be followed in subsequent cases or to the contrary.
Cicero enumerates res judicata as source of law and the Emperor Septinus Severus says that the
authority of an uninterrupted series of similar decided cases should have the force of a statute.
Justinian, it is true, established by the Constitution the contrary principle- that they were to have
only persuasive authority but these earlier statutes and even the constitution of Justinian himself
makes it clear that the notion of precedent having the force of law was similar to the powers.

Meaning
A precedent means a previous instance or case which is or may be taken as an example or rule for
subsequent cases. In common parlance it means something said or done that may serve to authorize
or justify further acts of the same or similar kind. According to Keeton, judicial precedent is a
judicial decision to which authority has, in some measure, been attached. 12 In the words Gray, a
precedent covers everything said or done which furnished a rule for subsequent practice. 13
According to Jenks, 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 statute e.g., the Act of Parliament. 14 In short, we can say precedent means the
guidance or authority of past decisions for future cases.

Reasons for the Reception of Precedent

The justification of the binding rule of judicial precedent is based on several reasons. These are
1. These are based on practical experience rather than on logic only. The Judge says Allen, is
the interpreter of social mind and he can easily adapt the law to the changing wants of those
amongst whom the law is administered.
12 Keeton, op. cit., p. 96.
13 Gray, op. cit., p. 198.
14 Jenks op. cit., p. 70.
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2. It is based on convenience in the sense that it provides settled law and thus saved the labour
of judges.
3. It prevents error of judgments by individual judges.
4. It also prevents partiality on the part of the judges.
5. It helps the lawyers to take a cautious view of the development of law on the basis of past
experience.

Position of Precedent in England

The doctrine of judicial precedent is firmly settled in England. The binding character however exists
in cases of the inferior courts which are bound by the decisions of the superior courts. A superior
court is never bound by the decisions of the lower courts. Again, one court of similar jurisdiction is
not bound by the decision of the courts of coordinate jurisdiction. The hierarchy of court in England
is as follows:-

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Position of Precedent in India

Under the Hindu law the doctrine of precedent was recognized by Hindu law-giver. Manu, the
renowned law-giver of Hindus, advocated the theory of precedent in order to settle doubtful points
of law. He said if it be asked how it should be with respect to (points of) of the law which have not
been (specially) mentioned, (the answer is), that which Brahmans (who are) Sishtas propound shall
doubtlessly have legal (force)15. It was during the British rule in India that the doctrine became
very important. In 1813, Mr. Dorin suggested that statutory force to be given this theory. He said, I
think it should be enacted by a regulation, that from a given period, the judgments of the court shall
15 Manu Ch. XII, verse, 108
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be considered as precedents binding upon it and on the inferior courts in similar cases which may
arise thereafter.16 Yanavalkya has also mentioned precedent as one of the sources of laws. 17 Again,
in the Mahabharata18, it has been suggested that since texts conflicts with each other and the purport
of law is difficult to arrive at, the path adopted or shown by the great men should be followed.
However, it can be pointed out here that in ancient Hindu law the term precedent is not used in the
modern sense of a direction coming from a court.
In the 19th century because of the popularity of the publication of reports of decided cases and
digests the doctrine of precedent acquired a more significant place. It was, however. In the 20 th
century that the doctrine of precedent got statutory recognition. Section 212 of the Government of
India Act, 1935 made the law
The law declared by the Federal Court and by any judgment of the Privy Council shall, so far as
applicable, be recognized as binding on, and shall be followed by, all courts in British India, and,
any order in Council there under or any matter with respect of this Act or the Federal Legislature,
has power to make laws in relation to the state, in any Federated States.

Hierarchy of Courts in India is as follows:-

1
2
3
.
Article
141 of the

16 Selection from the records of the East India house, Vol. 11, at 20, adopted from Morely,
Administration of Justice in India.
17 Yajnavalkya, Ch. I, verse 7.

18 The Mahabharata, Vanaprava Ch. 313, verse 117.

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Constitution of India provides that the law declared by the Supreme Court shall be
binding on all courts within the territory of India. In Article 141 the expression all
courts has been used. Now the question comes whether all courts include Supreme
Court also. That is to say whether Supreme Court is bound by its own decision or not.
In 1954, an important case Dwarkadas v. Sholapur spinning and wearing Co.,19 came
before the SC, where Mr. Justice Das expressed the view, Accepting that the SC is not
bound by its own decision and may reverse a previous decision especially on
constitutional questions the court will surely be slow to do so unless such previous
decision appears to be obviously erroneous.
The High Courts in India are bound by the law declared by the Supreme Court.
Decisions of Supreme Court are binding only so long as they have not been overruled
by the Supreme Court. The Decisions of a High Court are binding on all the courts
below it within its jurisdiction. The judgments of a particular High Court, is not binding
on other High Courts. The High Courts are the courts of Co-ordinate jurisdiction.
Therefore, the decisions of one high court are only of persuasive value for other high
courts. However, in practice the decisions of one High Court are cited in other High
Courts and they have Persuasive value. The full bench decisions of one High court
command great respect in other High court.
All District Courts, Magistrate Court and Munsif Courts are bound by the decision of
Supreme Court and High Courts (within its jurisdiction). Again, Munsif courts and
Magistrate courts are bound by the decision of District Court (within its jurisdiction).

Ratio decidendi and orbiter dicta

Literal meaning of the term ratio decidendi is reason of decision. Other meanings
are also given to this term, e.g., the rule of law which is preferred by the judge as the
actual basis of his decision, or the rule of law which permits others to interpret the
judgment as being of binding authority. According to Keeton ratio decidendi of a
19 AIR 1954 SC 119.
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decision is the principle of law formulated by the judge for the purpose of deciding the
problems before him.
A judicial decision has a binding force for subsequent cases but the whole judgment is
not binding only a part of the judgment is binding. Only that part of the judgment in an
earlier decision is binding which constitutes the ratio decidendi of that case. Statements
which are not partaking of the character of ratio decidendi can be ignored while
deciding the latter case. Eminent Jurists like Goodhard, Llewellen, Paton and Sawer.
According to Goodhard, ratio decidendi is to be found by taking into consideration all
the facts treated as materials by the judge who decided the case. For him what is
binding is the conclusion reached by the judge on the basis of, materials facts.
According to Salmond a precedent is a judicial decision which contains in itself a
principle. The underlying principle which thus forms its authoritative element is often
termed the ratio decidendi. The view of Salmond is quite correct in the sense that the
judge will hold that the ratio decidendi of a case to be found in the general principle
governing an earlier decision as long as the formulation of this principle was necessary
to the decisions of the actual issue between the litigants. He further adds that the
principle of the case must be rationally laid down; it should not be boarder than
necessary.

Methods to find ratio

The discovery of the ratio of a case may be a matter of great difficulty because a case
may have been decided on its own facts, or the particular terms of its pleadings or on
the basis of some admission or concession, and may yield no ratio or general principle
at all. Or the later court may find itself unable to discover the basis on which the
previous court decided the precedent case; this greatly weakens the value of the case as
a precedent.
The judgment in a precedent must, moreover, be read secundum subjection materiem; it
is a judgment in relation to the facts of a particular case and the judge may not be lying
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down a rule for any case other than the one before him and precisely similar cases. If he
does lay down a rule for kinds of cases other than that before him, the validity of the
propositions for other cases must be considered if and when those other cases arise,
when the rule may be regarded as too widely and generally stated.
Some of the methods are listed below:i.

ii.

iii.

iv.

Classical or abstraction method. - The ascertainment of the ratio decidendi of a

case depends upon a process of abstraction from the totality of facts that occurred
in it. The higher the abstraction, the wider the ratio decidendi.
Reversal test. According to Prof. Wambaugh, he suggest that we should take the
proposition of law put forward by the judge, reverse or negate it and see if its
reversal would alter the actual decision also. If yes, the proposition is the ratio
part of it, otherwise not. This test, however, will not help in cases where no
proposition is given or when a court gives several reasons for its decision.
Material facts theory. - Ratio decidendi is nothing more than the decision based
on the material facts of the case. If in a later case material facts coincide with or
are identical with those of the earlier one, then earlier case is a precedent in point.
The theory is, however, too simple. Different ratios can be derived from a
decision by taking different combination of material facts; there may accordingly
be subsequent doubt and dispute as to what the ratio of a particular decision is.
A case may have not one but several ratio decidendi.

Obiter dicta
The term obiter dicta literally mean statements by the way. In Halsbury Laws of
England20 it has been defined as Statements which are not necessary to the decision,
which go beyond the occasion and lay down a rule that is unnecessary for the purpose
in hand (usually termed dicta) leave no binding authority on another court, though they
may have some merely persuasive efficacy. According to Talbot, J.,21 an obiter dictum
is an opinion on some point which is not necessary for the decision of the case. The
20 Vol. XIX, at p. 251.
21 Expressed in the case of Dew v. United British Steamship Co. Ltd., (1928) 139 LT 628
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emphasis is not only on the opinion but also on the point. It is not merely an expression
of opinion unconnected with the cases for determination. According to Keeton obiter
dictum are observations made by the judge but which are not essential for the decision
reached.
In Jaiwant Rao and other v. State of Rajasthan,22
The court observed dicta which do not form the integral part of the chain of reasoning
directed to the questions decided may be regarded as obiter.

In England an obiter dicta has no binding effect either upon a co-ordinate court or upon
a subordinate court. An obiter dicta of the House of Lords would undoubtedly be
entitled to the highest respect. But a judge in England would not feel that he would be
bound by an opinion expressed by the higher tribunal. In India, a departure has been
made of the principle operating in England with regard to obiter dicta. The High courts
have held almost uniformly that they are bound by the obiter dictum of the Supreme
Court of India.
In Mohandas v. Sattanathan23
Their Lordship observed that the Supreme Court is the highest judicial tribunal in India
and it is as much necessary in the interest of judicial uniformity and judicial discipline
that all the High Courts must accepts as binding the obiter dicta of the Supreme Court
in the same spirit as the High Courts accepted the obiter dicta of the Privy Council.
But if the obiter dicta is on a question that did not arise for determining by the Supreme
Court and is a mere expression of opinion given by the way then it is not binding.
In Nuruddin Ahmed v. State of Assam24
22 AIR 1961 Raj 250.
23 56 Bom LR 1160.
24 AIR 1956 Assam 48.
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It was laid down that The observations of their Lordships of the Supreme Court if they
were made obiter would be entitled to the highest esteem from the High Court. This
would be more so when the High Court finds itself in respectful agreement with the
view which prevailed with their Lordship.

In Ashok Leyland Case25

It was held that The Obiter dicta of a judge of the Supreme Court even in a dissenting
judgment are entitled to high respect, especially if there is no direct decision to
conclude the question of at issue.
Advantages of Case law
The principle advantages of case-law are listed below:i.

ii.
iii.

iv.

Case-law is the outcome of practical needs considered by men of the highest

practical experience and therefore it is sure to be in harmony with the needs of
society. In other words, the law that a judge makes is bound to be in conformity
with public opinion because the judge himself is a member of society for which
he lays down the law.
In Case-law it is the ratio that matters and Judge can take his own time to explain
fully the principle he lays down.
A Judge in formulating a rule of law is trying to solve an actual concrete problem.
Hence, the law that the judge makes is bound to be more satisfying and complete
than the law made by the legislature.
Case-law is bound to be of fine workmanship as it formulated by people who have
a special training in law.

25 AIR 1957 Mad 263.

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Bibliography
1.
2.
3.
4.
5.
6.
7.
8.

Jurisprudence by Salmond
T.E. Holland, The Elements of Jurisprudence (13 th Ed.)
Salmond, Jurisprudence (10th Ed.)
E.W. Patterson, Jurisprudence (1st Ed.)
Julius Stone, The province and Functions of Law
Austin, Jurisprudence Vol. II
C.K. Allen, Law in the making (7th Ed.)
Gray, The Nature and sources of law (2nd Ed., New York, 1921)

References from the Internet

1. www.google.com
2. www.law.cornell.edu/wex/jurisprudence
3. www.merriam-webster.com/dictionary/jurisprudence
4. www.jasononline.com/law/juris.htm
5. www.indiankanoon.com
6. www.vakilno.1.com
7. www.scconline.com.

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