Precedent or stare decisis. Legal Reasoning and Justification Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 1
The term commonly used for the doctrine of precedent is called stare decisis. This is an abbreviation of the Latin phrase, stare decisis et non quieta movere (to stand by precedents and not to disturb settled points). Generally speaking stare decisis means that a point of law once settled by a judicial decision is not to be departed from. In other words, an earlier case when directly in point must be followed in a subsequent case. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 2
Professor Neil Mac Cormick in his book Legal Raeasoning and Legal Theory, suggests that two factors in particular may be considered by judge when justifying his decision. The first is the extent to which a proposed decision will cohere with existing principles and authorities: the greater the inconsistency with the existing legal framework that will result from a proposed decision, the less likely it is to be adopted. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 3 Legal Reasoning and Justification
The second concerns the broader consequences of the decision for potential litigants, the legal system and indeed the role of law in society. Judges may refer to common sense, the supposed view of the common man or they may refer to notions of justice and fairness. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 4
Some critics see some times arguments as merely playing with language. They argue that if judgments are “deconstructed by unravelling the linguistic devices, the emptiness of legal reasoning will be revealed. This view, often associated with the movement known as “ critical legal studies,” challenges conventional thinking but to some extent depends upon setting up an easy target: if legal reasoning purported to provide a scientific route to the truth one would have more sympathy with the critics, but that is not its nature. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 5
Rather as Professor John Wisdom has put it, legal reasoning is “ not a chain of demonstrative reasoning. It is a presenting and re-presenting of those features of those cases which severally co-operate in favour of the conclusion …… The reasons are like the legs of a chair not the links of a chain .” It is important to realise that a judge can only properly take into account those considerations which can be adequately argued before a court of law. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 6
Thanks Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 7 We will continue…..
Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 8 Precedent Salmond says: 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 concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large.
Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 9 John Chipman Gray It must be observed that at the common law not every opinion expressed by a judge forms a judicial precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and in the second place, it must be an opinion the formation of which is necessary for the decision of a particular case, in other words, it must not be obiter dictum.
Both the learned authors, on reaching this point of safety, stop. Having explained to the student that it is necessary to find the ratio decidendi of the case, they make no further attempt to state any rules by which it can be determined. It is true that Salmond says that we must distinguish between the concrete decision and the abstract ratio decidendi, and gray states that the opinion must be a necessary one, but these are only vague generalisations. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 10
Phrase ratio decidendi is one of the most misleading expression of English law, for the reason which the judge gives for his decision is never the binding part of the precedent. The logic of the argument, the analysis of the prior cases, the statement of the historical background may all be demonstrably incorrect in a judgment, but a case remains a precedent nevertheless. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 11
It would not be difficult to cite a large number of leading cases, both ancient and modern, in which one or more of the reasons given for the decision can be proved to be wrong, but in spite of this, these cases contain valid and definite principles which are as binding as if the reasons on which they are based were correct. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 12
It may be laid down as a general rule that that part alone of a decision of a court of law is binding upon courts of co-ordinate jurisdiction and inferior courts which consists of enunciation of the reason or principle upon which the question before the court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi . Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 13
Professor Morgan of the Harvard Law School, in his valuable book The study of Law says: Those portion of the opinion setting forth the rules of law applied by the court, the application of which was required for the determination of the issues presented, are to be considered as decision and as primary authority in later cases in the same jurisdiction. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 14
Thus, a case may be presented, involving an important principle of law, although the court has given judgment without delivering an opinion. At the present time, we rarely find a case of any importance in which there is not a statement of the reasons on which the judgment is based, although occasionally an appellate court will affirm without opinion a case which involves an interesting point. Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 15
Thanks Tuesday, October 06, 2009 Dr. Tabrez Ahmad, KLS KIIT. 16 We will continue……….