Jurisprudence Law: Precedents

Define Precedents? Lay downthe importance of the precedents as the source of law. In what sense they are binding? Do the judges make law?

INRODUCTION:- Precedents literally means previous judicial decision. The decisions of the higher courts are binding on the lower courts. The binding force of decision is called precedent. The precedents play an important role in the development of law. It is the second important source of law. First source is customs and the third source is legislation. Sometimes act may be insufficient for the case or there may be an vacuum or any thing missing in the act. Under these circumstances the court can apply their own mind. These independent decisions becomes precedents which are followed later on by the same & Lower courts. This method of decision is also called as Judge made law. The English and American law is mostly based upon the precedents. In India Art.141 of Indian Constitution says that the decision of the higher courts shall be binding upon the lower courts.

DEFINATION OF PRECEDENTS:- Precedents are a decision of a court which is also called judicialdecision. According to the Oxford University, “Precedents means the previous decision case given by a court according to rules.” Various writers have given the definition of precedents is conduct of court adopted by the lower court in similar facts and in similar circumstances in a case. Particularly the precedents means the Judge made law. When the court gives its own ideas for creating new rules. England, America and China alsofollow the previous decisions as the source of law but the continent countries like Germany, Japan does not acceptthe previous decisions as the source of law. The method of taking precedents as source of law is called inductive method, while the method of continental countries not following previous decisions of the court is called deductive method.

MERITS OF PRECEDENTS:- Precedents are a very important source of Law. They play an important role in the development of law, so they have certain advantages as:
1.Precedents show true respect to the ancestors means by adopting the previous decision of the higher court to decide the present case, it is a kind of respect to elders.2.Precedents are suitable to the present situation means after some times the circumstances of the society can change with the change of time so the precedents they are more suitable and fit for the present time and circumstances.3.Precedents are based on customs means the law in the form of act which based upon customs. Court  interprets the customs while interpreting any act.
4.Precedents are convenient and easy to follow because they are available in the form of written reports.
5.Precedents bring certainty in law, once decision is given in a case there would be no need to repeat all precedents in any other case if it resembles to the former case.6.Precedents are the best guide for the Judges: They play an important role in the judiciary because the  precedents are the guide lines for the courts.

DEMERITS OF THE PROCEDENTS:-  lthough the demerits are very few but these are as under :-i)The decisions are given by the human beings while performing the duties as judge, his decision may not be suitable to all persons who have different mindand thinking. This will be a bad effect on Judiciary.ii)Sometimes the decisions of the higher courts contradictory to each other. It becomes harder to another judge to apply the same verdicts as a precedents ofhigher courtiii)Sometimes the higher courts give a wrong decision and over pass the important factors of thecase due to one reason or the others.

PRECEDENTS ARE BINDING:-
The precedents is an important source of law. It is available in the form of judicial decisions. Now the question arises that in what sense and when the precedents are binding o follow. For the answer of this query different views have been given by the various writers and jurists.No doubts the precedents is not binding like warrant issued by a court of law.  It means precedentcan be over ruled if they are not right or appropriable to the case to be decided but warrant has to be followed by all to whom it is applicable.It is not necessary that in the case which is to be decided the circumstances and the facts must be the same as in resembling case.  If the facts and the circumstances of the cases are materially similar then the precedents or previous judicial decision is applied in the later cases and are applied only in the form of ‘ratio decidendi’ of previous cases. There are two parts of it :-.
i)Ratio-decidendi:- means reasons which leads the court toreach the decision. It is the main part of the case in judgement and the ratio decidendi of the decision is binding in the form ofprecedent.
ii)Obits decidendi:-It is also a part of the decision which is irrelevant to the facts and circumstances of the case. The judge takes into consideration the social conditions, morality, principal of natural justice that iswhy the Judges play an important role in the development of legal system.

DIFFERENCE BETWEEN CUSTOM & PRECEDENTS
Custom is primary source of law.Precedents are the secondary source of law.Custom is given by people in general.Precedents are given by courts.Custom is conduct adopted by people of society.Precedents is itself complete certain, reasonable given by a competentcourt of the country.Custom is based upon the reasoning of common people of the society.Precedents are based upon the reasoning of a individual Judge or very few judges.Customs have more value then precedents and cannot be ignored.It can be ignored if it gives un-justice.

DO  JUDGESMAKE LAW:-
There are two theories about thispurpose one theory says that Judgs do not make laws and other theory says that Judges in fact are the makers of Laws. This theory is also known as declaratory Theory. According tothis the judges are not makers ofthe laws which they are already nexistence. The judges while deciding the case only applies the existent and relevant customs for deciding the cases.Judges are not the law makers:- The supporters of this theory (historical school) says that all the laws are based upon customs.  The judges only to explain these laws and customs. According to Coke hate and Dr.Carter, that the law is created by the King or by the Parliament or by the Legislature bodies. Common Laws is based upon custom. The public through the decision of courts come to knowthose customs.  It means that Judiciary is not the maker of law.A case: Rageshwar Parsad v/s state of West Bengal. It was heldthat, The court does not create Law.

ORIGINAL LAW MAKING THEORY
This theory is opposite to the first theory.  It says that the Judges are the real makers of the law. They not only interpret or explain but also make the law.According to Salmond:  who is the main supporters of this theory says, “ That the decisions of the courts are a great contribution to the legal system.”Dicay says that,  “that legal system is the best part of the lawof England which is judge made law.”
CONCLUSION:- The conclusion or the correct view is that we cannot ignored any of the above theories because both are correct and complements to each other and both should be taken. No doubt that a Judge can only to explain or to interprets the existing laws but at the same time he also creates the new ideas, thoughts and gives new touch ideas which play an important role in the development of law.