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Precedents & Law
Arguments from precedent and analogy are two central forms of reasoning found in many legal systems, especially
‘Common Law’ systems such as those in England and the United States. Precedent involves an earlier decision
being followed in a later case because both cases are the same. Hence, the literal meaning of the term being
“An earlier event or action that is regarded as an example or guide to be considered in subsequent similar
circumstances.”
But in Law, along with the literal meaning of the term we also consider the legal meaning of the said term. As for
“Precedent” it too has some legal definitions.
“In common law legal systems, a precedent or authority is a legal case that establishes a principle or rule. This
principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar
issues or facts.”
As mentioned in the infamous Black’s Law Dictionary, precedent is defined as
"Rule of law established for the first time by a court for a particular type of case and thereafter referred to in
deciding similar cases."
Over the years, many famous jurists defined “Precedent” in their own terms. Some of them are mentioned as
According to Dias, “A precedent is a previous instance or case which furnishes an example or rule for
subsequent conduct and a pattern upon which subsequent conduct is based.”
Salmond went forward to say, “Precedents are judicial decisions followed in subsequent cases.”
Julius Stone says, “That the essence of stare decisis is that where there is no sufficient reason for departing
from principle laid down in a prior decision, judges should not depart from them.
One of the famous and landmark cases in setting a precedent was “Brown vs Board of Education” which set a
precedent for ending the segregation in public schools.
In almost all legal systems, the judges take guidance from the previous decisions on the point, and rely upon them.
But the authority of such decisions is not the same in all the legal systems. In most of the countries including India,
acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions
are compiled and published in reports. These reports are considered to be very valuable from the legal literature
perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are
called judicial precedents or precedents.
In general, in the judicial field, it means the guidance or authority of past decisions for future cases. Only such
decisions as lay down some new rule or principle are called judicial precedents. The application of such judicial
decisions is governed by different principles in different legal systems. These principles are called Doctrine of
Precedent. For this case to be held, first such precedents must be reported, maybe cited and may probably be
followed by courts. Secondly, the precedent under certain circumstances must be followed.
Thus, it can be inferred that precedents are:
Guidance or authority of past decisions for future cases.
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Precedents must be reported, maybe cited and may probably be followed by courts.
Precedents must have opinio-juris.
These must be followed widely for a long time and must not violate any existing statue law.
Doctrines of Precedents:
The doctrines that laid the foundation of the precedents are
Stare Decisis
Ratio Decidendi
Obiter Dictum
Stare Decisis”
The judiciary adjudicates the rights and obligations of the citizens, as per legislation, customs as well as a sense of
justice. Judges often also take guidance from previous decisions and rely on past interpretations of questions of law.
While the degree of persuasiveness may vary as per the court delivering the judgment, the doctrine of Stare
Decisis” binds courts to stand by their decisions and not disturb the undisturbed.
Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior
decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta
movere”: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean
that courts should generally abide by precedents and not disturb settled matters. This doctrine is basically a
requirement that a Court must follow the rules established by a Court above it.The doctrine that holdings have
binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this
principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such
systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are
independent, they should judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret law
does not preclude the adoption of a small number of selected binding case laws.
Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged
ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The
guiding philosophy is that a view which has held the field for a long time should not be disturbed only because
another view is possible. The usefulness of the doctrine of stare decisis for precedents is given as:
1
1) The doctrine achieves equality, consistency and impartiality by treating like cases alike.
2) The doctrine helps the courts to dispense justice in all efficient manner. It saves much time to the courts as
well as reduces cost for litigants.
3) The doctrine helps the law in combining the need for certainty and the need to keep the law abreast of
changing ideas and social conditions. Certainty is preserved within the limits of rules and concepts,
flexibility and adaptability are achieved through their interpretation.
4) The doctrine has a great controlling influence on the judges, who if not bound by established judicial
precedents will be inclined to interpret law according to their own predictions there by creating a chaos in
the human relations as well as in the administration of justice.
1
Jurisprudence & legal theory by V.D. Mahajan’s
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5) The doctrine is based on a universal sense of justice.i.e all men should be treated alike in like circumstances.
6) As a matter of great convenience, it is necessary that a question once decided should be settled and should
not be subject to re-argument in every case in which it arises. It will save the labor of the judges and the
lawyers.
7) Precedents guide judges and consequently they are prevented from committing errors which they would
have committed in the absence of precedents. The law in precedents, is laid down after thrashing of the
points and argument in great detail therefore it is of great value to the judges. By following precedents
judges are prevented from any prejudice and partiality because precedents are binding on them. By deciding
cases on established principles, the confidence of the people in the judiciary is strengthened.
8) The doctrine should not be rigidly observed. The court may in an appropriate case reverse its own decisions,
if it is satisfied of its error and its benefit effect on the general interest of the public.
Ratio Decidendi:
It means the reason for the decision; the basis of a decision. It is the principle or rule of law on which a court’s
decision is founded. It is the ‘law declared’ in a judgment. It is the authoritative element in a judicial decision. It is
the rule of law which the court regards as governing the facts of a case. The eventual decision given by a court is
not the precedent. The precedent is the legal principle (ratio) relied on in arriving at the decision. Thus, it is only
the ratio which is to be followed by judges in the future confronted with similar facts. Thus, what binding is the
ratio of the decision and not any finding of fact. The law declared by the Supreme Court is essential for proper
administration of justice. The main object of doctrine of precedent is that the law of the land should be clear, certain
& consistent so that the Courts shall follow it without any hesitation.
As in the landmark case of Donogue vs Stevenson
2
(snail in the bottle case): ratio decidendi in the case was that
the manufacturer was liable to the consumer for his negligence in manufacturing goods which are of such nature
that they are incapable of intermediate inspection by the retailer.
It is not everything said by judge in giving judgment that constitute a precedent but the principle on which the law
laid down is important (Ratio Decidendi) If the judge is bound by precedent he must apply the Ratio- even though
he disapproves of the ratio unless it considers that the two cases reasonably distinguishable. It is well established
that if a judge gives two reasons for his decision. It is not permissible to pick out one as the better reason and ignore
the other one.
3
But for ratio decidendi to apply the judge has to take into consideration the following points:
Judgment must be read in the light of the facts of the case in which they are delivered.
Every judgment must be read in the light of judgments in the other cases.
Decisions without reasons.
Obiter Dictum:
All that is said by the court by the way or the statements of law which go beyond the requirements of the particular
case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand, are called Obiter dicta. In
contrast with the ratio decidendi is the obiter dictum. Obiter Dictum is a mere saying by the way, a chance remark,
which is not binding upon future courts, though it may be respected according to the reputation of the judge, the
eminence of the court, and the circumstances in which it came to be pronounced. An example would be a rule of
law stated merely by way of analogy or illustration, or a suggested rule upon which the decision is not finally rested.
The reason for not regarding an obiter dictum as binding is that it was probably made without a full consideration
of the cases on the point, and that, if very broad in its terms, it was probably made without a full consideration of
2
[1932] UKHL 100
3
Jurisprudence & legal theory by V.D. Mahajan’s, Fifth Edition
Judicial process precedent in Indian law by A. Lakshminath Third Edition
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all the consequences that may follow from it; or the judge may not have expressed a concluded opinion. It is
frequently said that a ruling based upon hypothetical facts is obiter. This is often true. Thus, if the judge says: “I
decide for the defendant; but if the facts had been properly pleaded, I should have found for the plaintiff”, the latter
part of the statement is obiter.” Thus, an obiter dictum means an observation made on a legal point in a decision
but not arising in such manner as to require decision. Such obiter has no binding precedent but the observations
made by the Apex Court will have considerable weight as having persuasive value.
Dr. Good hart defines “Obiter Dictum” a conclusion based on a fact the existence of which has not been
determined by the court
It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent.
But it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case which he is going
to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis
on one or the other point.
Hence, Precedent, Stare Decisis and Ratio-decidendi all forming part of judgment and which are basic principles
of judgment. The principle that judges should build on the precedents established by past decisions is known as the
doctrine of stare decisis.
This Doctrine achieves equality, consistency and impartiality by treating like cases alike. The above doctrine helps
the courts to dispense justice in an efficient manner. It saves much time to the court as well as reduces cost for
litigants. In today’s world it is very import method of solving the cases.
Types of Precedents:
There are different types of precedents within law.
Original Precedents
Declaratory Precedent
Authoritative or Binding Precedent
Persuasive Precedents
Original Precedents:
The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before,
then the decision of the judge in such a case forms an original precedent. An original precedent is one which creates
and applies a new rule. It is law for the future because it is now applied. The number of original precedents may be
small but their importance is very great, they alone develop the law of the country. They serve as good evidence of
law for the future.
Declaratory Precedents:
A declaratory precedent is not a source of new law where as an original principle is. According to Salmond,
“A declaratory precedent is one which is merely the application of an already existing rule of law. In the case of
a declaratory precedent, the rule is applied because it is already law.”
In case of advanced countries, declaratory precedents are more numerous. Declaratory precedents have the same
legal authority as that of original precedents, so they too act as a good source of law. An original Precedent is an
authority and a source of development of law while the declaratory precedents reconfirm the law.
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Authoritative or Binding Precedents:
As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judge must follow
whether they approve it or not. It is also known as mandatory precedent or binding authority. As per the doctrine
of stare decisis, a court lower in the hierarchy follows and honors the findings of law made by a court higher in the
hierarchy. The decisions of lower courts are not binding on courts higher in the system. Lower courts are bound by
precedent (that is, prior decided cases) of higher courts within their region. There are three elements needed for a
precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting.
“A balance must be struck between the need on one side for the legal certainty resulting from the binding effect
of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the
law.”
Binding precedents are further bifurcated into,
1. Absolute Authoritative
2. Conditional Authoritative
Absolute Authoritative:
In case of absolutely authoritative precedents, they have to be followed by the Judges even if they do not approve
of them. They are entitled to implicit obedience.
Conditional Authoritative:
In the case of authoritative precedents having a conditional authority, the Court can disregard them under certain
circumstances. Ordinarily, they are binding but under special circumstances, they can be disregarded.
Persuasive Precedents:
A persuasive decision or precedent is one which the judges are under no obligation to follow but which they will
take into consideration and attach as much weight as it deserves. It is a precedent that the court need not follow, but
may consider when a decision is being made as it is relevant and might be useful. Persuasive precedent comes from
many places. Courts lower in the hierarchy can create a persuasive precedent. These cases could be cases that are
decided by lower courts, or courts equivalent in the hierarchy or in some exceptional circumstances, cases of other
nations, judicial bodies of the world etc. Once a persuasive precedent has been adopted by a higher court it becomes
a binding precedent for all the lower courts that time onwards.
4
Although persuasive precedents may help in forming
of some law but they themselves do not have any sort of legal force or effect in themselves and may only be used
to persuade the judge, a judge is not bound to follow them as he is not bound by such precedents.
4
Authoritative & persuasive precedent from Jurisprudence & legal theory, V.D. Mahajan’s fifth Edition
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Reflection of the doctrine of Stare decisis in Constitution of Pakistan
1973
The doctrine of stare decisis also known as the “Law of binding precedent is reflected in the Article 189 & Article
201, which reads as under:
"189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or
enunciates a principle of law, be binding on all other courts in Pakistan."
"201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or
is based upon or enunciates a principle of law, be binding on all courts subordinate to it."
Judgments of the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National
Industrial Relations Commission have the force of precedent which can be inferred from Explanation to section 5
of the Law Reports Act, 1875 which reads as follows: -
"For the purpose of this Act the expression, Court or Tribunal includes the Federal Shariat Court, a Service Tribunal,
the Income Tax Appellate Tribunal and the National Industrial Relations Commission." As evident from above, the
doctrine of stare decisis has constitutional and statutory command and thus needs to be implemented in letter and
spirit. Any violation of this rule will amount to violation of the Constitution and law of the land. In the light of
above explicit provisions, it can be safely concluded that an important element of our legal system is that the
reasoning and decisions found in preceding cases are not simply considered with respect or as good guide, but are
BINDING. This is known as the principle of stare rationibus decidendis; popularly referred to as stare decisis.
The concept of stare decisis in the Constitution of Pakistan 1973, can be understood better by the famous Panama
case
5
.
The binding case law that clearly provide for direct disqualification by Supreme Court for perjury. In case of
allegation of corruption, matter in the case of Nawaz Sharif and family is rightly referred to the National
Accountability Bureau. The argument that elected members could not be disqualified under Article 62(1)(f) of the
Constitution without recording evidence, in a proceeding under Article 184(3) of the Constitution, is against the
settled principle (stare decisis). Our Supreme Court in the case of Syed Mahmood Akhtar Naqvi v. Federation of
Pakistan
6
while exercising jurisdiction under Article 184(3) of the Constitution, disqualified a person for making
a false declaration on solemn affirmation in his nomination papers. Therefore, under the law of binding precedent,
this will be applicable wherever there is any false declaration on oath by any public officeholder.
5
(Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif & 9 Others PLD 2017 SC 265, Imran Ahmad Khan Niazi v Mian Muhammad
Nawaz Sharif & 9 Others PLD 2017 SC 692 and order in CRP 297 to 299 of 2017, CRP 303 of 2017, 308 to 3012 of 2017)
6
Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (2012 PLD SC 1089)

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Precedents & Law Arguments from precedent and analogy are two central forms of reasoning found in many legal systems, especially ‘Common Law’ systems such as those in England and the United States. Precedent involves an earlier decision being followed in a later case because both cases are the same. Hence, the literal meaning of the term being “An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances.” But in Law, along with the literal meaning of the term we also consider the legal meaning of the said term. As for “Precedent” it too has some legal definitions. “In common law legal systems, a precedent or authority is a legal case that establishes a principle or rule. This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts.” As mentioned in the infamous Black’s Law Dictionary, precedent is defined as "Rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Over the years, many famous jurists defined “Precedent” in their own terms. Some of them are mentioned as  According to Dias, “A precedent is a previous instance or case which furnishes an example or rule for subsequent conduct and a pattern upon which subsequent conduct is based.”  Salmond went forward to say, “Precedents are judicial decisions followed in subsequent cases.”  Julius Stone says, “That the essence of stare decisis is that where there is no sufficient reason for departing from principle laid down in a prior decision, judges should not depart from them.” One of the famous and landmark cases in setting a precedent was “Brown vs Board of Education” which set a precedent for ending the segregation in public schools. In almost all legal systems, the judges take guidance from the previous decisions on the point, and rely upon them. But the authority of such decisions is not the same in all the legal systems. In most of the countries including India, acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions are compiled and published in reports. These reports are considered to be very valuable from the legal literature perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are called judicial precedents or precedents. In general, in the judicial field, it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents. The application of such judicial decisions is governed by different principles in different legal systems. These principles are called “Doctrine of Precedent”. For this case to be held, first such precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the precedent under certain circumstances must be followed. Thus, it can be inferred that precedents are:  Guidance or authority of past decisions for future cases.  Precedents must be reported, maybe cited and may probably be followed by courts.  Precedents must have opinio-juris.  These must be followed widely for a long time and must not violate any existing statue law. Doctrines of Precedents: The doctrines that laid the foundation of the precedents are  Stare Decisis  Ratio Decidendi  Obiter Dictum Stare Decisis” The judiciary adjudicates the rights and obligations of the citizens, as per legislation, customs as well as a sense of justice. Judges often also take guidance from previous decisions and rely on past interpretations of questions of law. While the degree of persuasiveness may vary as per the court delivering the judgment, the doctrine of “Stare Decisis” binds courts to stand by their decisions and not disturb the undisturbed. Stare decisis is the legal principle by which judges are obliged to respect the precedents established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim “Stare decisis et non quieta movere”: “to stand by decisions and not disturb the undisturbed.” In a legal context, this is understood to mean that courts should generally abide by precedents and not disturb settled matters. This doctrine is basically a requirement that a Court must follow the rules established by a Court above it.The doctrine that holdings have binding precedence value is not valid within most civil law jurisdictions as it is generally understood that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret law does not preclude the adoption of a small number of selected binding case laws. Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. The usefulness of the doctrine of stare decisis for precedents is given as:1 1) The doctrine achieves equality, consistency and impartiality by treating like cases alike. 2) The doctrine helps the courts to dispense justice in all efficient manner. It saves much time to the courts as well as reduces cost for litigants. 3) The doctrine helps the law in combining the need for certainty and the need to keep the law abreast of changing ideas and social conditions. Certainty is preserved within the limits of rules and concepts, flexibility and adaptability are achieved through their interpretation. 4) The doctrine has a great controlling influence on the judges, who if not bound by established judicial precedents will be inclined to interpret law according to their own predictions there by creating a chaos in the human relations as well as in the administration of justice. 1 Jurisprudence & legal theory by V.D. Mahajan’s 5) The doctrine is based on a universal sense of justice.i.e all men should be treated alike in like circumstances. 6) As a matter of great convenience, it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save the labor of the judges and the lawyers. 7) Precedents guide judges and consequently they are prevented from committing errors which they would have committed in the absence of precedents. The law in precedents, is laid down after thrashing of the points and argument in great detail therefore it is of great value to the judges. By following precedents judges are prevented from any prejudice and partiality because precedents are binding on them. By deciding cases on established principles, the confidence of the people in the judiciary is strengthened. 8) The doctrine should not be rigidly observed. The court may in an appropriate case reverse its own decisions, if it is satisfied of its error and its benefit effect on the general interest of the public. Ratio Decidendi: It means the reason for the decision; the basis of a decision. It is the principle or rule of law on which a court’s decision is founded. It is the ‘law declared’ in a judgment. It is the authoritative element in a judicial decision. It is the rule of law which the court regards as governing the facts of a case. The eventual decision given by a court is not the precedent. The precedent is the legal principle (ratio) relied on in arriving at the decision. Thus, it is only the ratio which is to be followed by judges in the future confronted with similar facts. Thus, what binding is the ratio of the decision and not any finding of fact. The law declared by the Supreme Court is essential for proper administration of justice. The main object of doctrine of precedent is that the law of the land should be clear, certain & consistent so that the Courts shall follow it without any hesitation. As in the landmark case of Donogue vs Stevenson2 (snail in the bottle case): ratio decidendi in the case was that the manufacturer was liable to the consumer for his negligence in manufacturing goods which are of such nature that they are incapable of intermediate inspection by the retailer. It is not everything said by judge in giving judgment that constitute a precedent but the principle on which the law laid down is important (Ratio Decidendi) If the judge is bound by precedent he must apply the Ratio- even though he disapproves of the ratio unless it considers that the two cases reasonably distinguishable. It is well established that if a judge gives two reasons for his decision. It is not permissible to pick out one as the better reason and ignore the other one.3 But for ratio decidendi to apply the judge has to take into consideration the following points:  Judgment must be read in the light of the facts of the case in which they are delivered.  Every judgment must be read in the light of judgments in the other cases.  Decisions without reasons. Obiter Dictum: All that is said by the court by the way or the statements of law which go beyond the requirements of the particular case and which lay down a rule that is irrelevant or unnecessary for the purpose in hand, are called Obiter dicta. In contrast with the ratio decidendi is the obiter dictum. Obiter Dictum is a mere saying by the way, a chance remark, which is not binding upon future courts, though it may be respected according to the reputation of the judge, the eminence of the court, and the circumstances in which it came to be pronounced. An example would be a rule of law stated merely by way of analogy or illustration, or a suggested rule upon which the decision is not finally rested. The reason for not regarding an obiter dictum as binding is that it was probably made without a full consideration of the cases on the point, and that, if very broad in its terms, it was probably made without a full consideration of 2 [1932] UKHL 100 Jurisprudence & legal theory by V.D. Mahajan’s, Fifth Edition Judicial process precedent in Indian law by A. Lakshminath Third Edition 3 all the consequences that may follow from it; or the judge may not have expressed a concluded opinion. It is frequently said that a ruling based upon hypothetical facts is obiter. This is often true. Thus, if the judge says: “I decide for the defendant; but if the facts had been properly pleaded, I should have found for the plaintiff”, the latter part of the statement is obiter.” Thus, an obiter dictum means an observation made on a legal point in a decision but not arising in such manner as to require decision. Such obiter has no binding precedent but the observations made by the Apex Court will have considerable weight as having persuasive value. Dr. Good hart defines “Obiter Dictum” a conclusion based on a fact the existence of which has not been determined by the court” It is the Ratio Decidendi of a case that is binding and not the Obiter Dictum that has a binding effect of a Precedent. But it is for the judge to determine the Ratio Decidendi of the decision and to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law according to the changed conditions by laying emphasis on one or the other point. Hence, Precedent, Stare Decisis and Ratio-decidendi all forming part of judgment and which are basic principles of judgment. The principle that judges should build on the precedents established by past decisions is known as the doctrine of stare decisis. This Doctrine achieves equality, consistency and impartiality by treating like cases alike. The above doctrine helps the courts to dispense justice in an efficient manner. It saves much time to the court as well as reduces cost for litigants. In today’s world it is very import method of solving the cases. Types of Precedents: There are different types of precedents within law.  Original Precedents  Declaratory Precedent  Authoritative or Binding Precedent  Persuasive Precedents Original Precedents: The first is ‘original precedent’ which refers to a case having a point of law which has never been decided before, then the decision of the judge in such a case forms an original precedent. An original precedent is one which creates and applies a new rule. It is law for the future because it is now applied. The number of original precedents may be small but their importance is very great, they alone develop the law of the country. They serve as good evidence of law for the future. Declaratory Precedents: A declaratory precedent is not a source of new law where as an original principle is. According to Salmond, “A declaratory precedent is one which is merely the application of an already existing rule of law. In the case of a declaratory precedent, the rule is applied because it is already law.” In case of advanced countries, declaratory precedents are more numerous. Declaratory precedents have the same legal authority as that of original precedents, so they too act as a good source of law. An original Precedent is an authority and a source of development of law while the declaratory precedents reconfirm the law. Authoritative or Binding Precedents: As the name suggests authoritative precedent or decision (a.k.a binding decision) is one which judge must follow whether they approve it or not. It is also known as mandatory precedent or binding authority. As per the doctrine of stare decisis, a court lower in the hierarchy follows and honors the findings of law made by a court higher in the hierarchy. The decisions of lower courts are not binding on courts higher in the system. Lower courts are bound by precedent (that is, prior decided cases) of higher courts within their region. There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. “A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law.” Binding precedents are further bifurcated into, 1. Absolute Authoritative 2. Conditional Authoritative Absolute Authoritative: In case of absolutely authoritative precedents, they have to be followed by the Judges even if they do not approve of them. They are entitled to implicit obedience. Conditional Authoritative: In the case of authoritative precedents having a conditional authority, the Court can disregard them under certain circumstances. Ordinarily, they are binding but under special circumstances, they can be disregarded. Persuasive Precedents: A persuasive decision or precedent is one which the judges are under no obligation to follow but which they will take into consideration and attach as much weight as it deserves. It is a precedent that the court need not follow, but may consider when a decision is being made as it is relevant and might be useful. Persuasive precedent comes from many places. Courts lower in the hierarchy can create a persuasive precedent. These cases could be cases that are decided by lower courts, or courts equivalent in the hierarchy or in some exceptional circumstances, cases of other nations, judicial bodies of the world etc. Once a persuasive precedent has been adopted by a higher court it becomes a binding precedent for all the lower courts that time onwards.4 Although persuasive precedents may help in forming of some law but they themselves do not have any sort of legal force or effect in themselves and may only be used to persuade the judge, a judge is not bound to follow them as he is not bound by such precedents. 4 Authoritative & persuasive precedent from Jurisprudence & legal theory, V.D. Mahajan’s fifth Edition Reflection of the doctrine of Stare decisis in Constitution of Pakistan 1973 The doctrine of stare decisis also known as the “Law of binding precedent” is reflected in the Article 189 & Article 201, which reads as under: "189. Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan." "201. Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it." Judgments of the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission have the force of precedent which can be inferred from Explanation to section 5 of the Law Reports Act, 1875 which reads as follows: "For the purpose of this Act the expression, Court or Tribunal includes the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial Relations Commission." As evident from above, the doctrine of stare decisis has constitutional and statutory command and thus needs to be implemented in letter and spirit. Any violation of this rule will amount to violation of the Constitution and law of the land. In the light of above explicit provisions, it can be safely concluded that an important element of our legal system is that the reasoning and decisions found in preceding cases are not simply considered with respect or as good guide, but are BINDING. This is known as the principle of stare rationibus decidendis; popularly referred to as stare decisis. The concept of stare decisis in the Constitution of Pakistan 1973, can be understood better by the famous Panama case5. “The binding case law that clearly provide for direct disqualification by Supreme Court for perjury. In case of allegation of corruption, matter in the case of Nawaz Sharif and family is rightly referred to the National Accountability Bureau. The argument that elected members could not be disqualified under Article 62(1)(f) of the Constitution without recording evidence, in a proceeding under Article 184(3) of the Constitution, is against the settled principle (stare decisis). Our Supreme Court in the case of Syed Mahmood Akhtar Naqvi v. Federation of Pakistan 6while exercising jurisdiction under Article 184(3) of the Constitution, disqualified a person for making a false declaration on solemn affirmation in his nomination papers. Therefore, under the law of binding precedent, this will be applicable wherever there is any false declaration on oath by any public officeholder.” 5 (Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif & 9 Others PLD 2017 SC 265, Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif & 9 Others PLD 2017 SC 692 and order in CRP 297 to 299 of 2017, CRP 303 of 2017, 308 to 3012 of 2017) 6 Syed Mahmood Akhtar Naqvi v. Federation of Pakistan (2012 PLD SC 1089) Name: Description: ...
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