Concept : Precedent is a body of principles developed by supreme court in the process of hearing and deciding a case.
It is also called judge made law. It is an independent source of law.
It is as important as custom and legislation. It is neither old as custom nor new as legislation.
A precedent means a previous instance or case which is or may be taken as an example or rule for subsequent cases.
If there is no law or there is law but not clear meaning then it creates confusion and problems in deciding case so in this situation supreme court can make an precedent to settle such legal or constitutional disputes.
It is binding and must be followed by lower courts. Article 128 (4) of the constitution provides the power of making precedent to supreme court and the principles constituted there by must be followed by lower courts.
The doctrine of precedent is an special features of English law and common law countries.
In England, judges played important role in developing english law.
Precedent had been developed in Britain since 13th century before the establishment of parliament.
The following cases are examples of precedent in nepal like Meera Dhungana Vs. PM, Annapurna Rana Vs. Gorakh Shamsher etc.
According to Gray – “A precedent covers everything said or done which furnishes a rule for subsequent practice.”
According to Bentham – “Precedent is judge made law.”
Elements of Precedent
1. Obiter dicta
Obiter dicta is a Latin term which means things said or opinion given by judges while making decisions. These opinions are not binding on all the other courts while they are only persuasive in nature.
2. Ratio decidendi
Ratio decidendi is taken from a Latin term which means reasons for decision. Ratio decidendi is binding on all the lower courts of the country.
Doctrines of stare decisis :
Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case.
Stare decisis ensures that cases with similar scenarios and facts are approached in the same way.
Simply put, it binds courts to follow legal precedents set by previous decisions.
Types of precedent
There are various types of precedent but following are the major types of precedent :
1. On the basis of authority
i. Authoritative Precedent :
The precedent made by supreme court which must be followed by higher or lower court is called authoritative precedent. It is binding in nature. The higher or lower court must follow the principles established by the superior court.
ii. Persuasive Precedent :
The precedent made by lower court which are not binding to the higher or superior court is called persuasive precedent. It is not binding in nature. The higher court can follow the principles established in the precedent or can take into consideration.
2. On the basis of creating rules :
i. Original Precedent :
An original precedent arises when the court has never taken a decision in a case and it has to use its own discretion to reach a conclusion. It helps to create new law.
ii. Declaratory Precedent :
A declaratory precedent is application of existing precedent in a particular case. A declaratory precedent involves declaring an existing precedent and putting into practice.
Importance of precedent as a source of law
1. Same decision in similar case :
Everyone dealing with a similar case is treated in a similar manner there is equality and fairness of justice.
2. Helpful for future cases :
It acts as guidelines to decide future cases.
3. It saves time, Labour and economy of the court :
Precedents saves time and increases convenience as a question once decided is settled and it saves the time and labour of judges and lawyers.
4. Flexibility: Precedents help to prepare new statutory laws and adjust according to the changing conditions of the society.
5. Practical in nature :
Cases which makes them more practical. Legislation makes law in advance even actual cases may be seen or not but court makes precedent after observing the actual cases. So It is very practical in nature.
6. Stability :
Binding precedent establish a rule that helps to maintain stability. The lower court are obliged to follow precedent so that it maintain stability in legal system.
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In this context, we have prepared above material for the frequently asked question in the subjective examination like – (What is Precedent ? Describe the types and importance of it.) We have prepared it on the basis of various study materials. – Editor)
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