EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

HSP ASSIGNMENT

EARLY DEVELOPMENT OF THE DOCTRINE OF

Submitted by,

Name: Amithab Sankar

Roll No: 1477

Semester 2

1
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

INRODUCTION
Statutes and case laws are the two significant sources of the common law. The case laws
(also called precedents) play a significant role in the common law system. In the convention
of common law, the applied to a case is decided through judicial precedent and statutory
interpretation. Precedent is a principle or rule established in a previous legal case that is either
binding on or persuasive for a court or other tribunal when deciding subsequent cases with
similar issues or facts. Common-law legal systems place great value on deciding cases
according to consistent principled rules, so that similar facts will yield similar and predictable
outcomes, and observance of precedent is the mechanism by which that goal is attained.
Consequently, the Doctrine of Precedent acts as a guidance and justification for a judge
hearing a particular case in a court without having to use his own perception or legal rules to
give a verdict of the case before him. The fact that the House of Lords occupies a vital
position in the structure and jurisdiction of the courts, any decision made by them would be
considered binding to any higher or lower courts. Therefore, once a question has been
answered by a court a similar question from other cases, must produce an equal if not same
answer from any court according to that jurisdiction. Consequently, the Doctrine of Precedent
acts as a guidance and justification for a judge hearing a particular case in a court without
having to use his own perception or legal rules to give a verdict of the case before him. The
fact that the House of Lords occupies a vital position in the structure and jurisdiction of the
courts, any decision made by them would be considered binding to any higher or lower
courts. Therefore, once a question has been answered by a court a similar question from other
cases, must produce an equal if not same answer from any court according to that
jurisdiction.

The decision of a judge may fall in two parts mainly the ratio decidendi and the obiter dicta.
The ratio decidendi in the judgement signifies the ‘legal principles’ and the ‘rule of law’,
which is the only binding part of the stare decisis. As for the judges they always make
comments on cases, this is known as the obiter dicta meaning ‘things by the way.’ We will
always encounter these main words while dealing with judgements of cases. The basic
principle of the common law has not lessened, which means that the faithful attachment and
the privilege of using the doctrine of precedent is still the same. Hence, the main legal point
that has to be concluded is the ratio. The doctrine of precedent demands that ‘like cases
should be treated alike.’

2
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

The decision of a judge may fall in two parts mainly the ratio decidendi and the obiter dicta.
The ratio decidendi in the judgement signifies the ‘legal principles’ and the ‘rule of law’,
which is the only binding part of the stare decisis. As for the judges they always make
comments on cases, this is known as the obiter dicta meaning ‘things by the way.’ We will
always encounter these main words while dealing with judgements of cases. The basic
principle of the common law has not lessened, which means that the faithful attachment and
the privilege of using the doctrine of precedent is still the same. Hence, the main legal point
that has to be concluded is the ratio. The doctrine of precedent demands that ‘like cases
should be treated alike.’

3
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

THE ORIGIN OF PRECEDENT

What was the need of Precedent and how did the concept of Precedent originate can only be
understood through the development of English law. The law of England is largely derived
from customs. Custom law can be defined as a habit, a usage, prevalent in a large part of the
society without any resistance, which is later formally incorporated as binding law. The
English law has its first period as Anglo-Saxon period .At the time of Anglo-Saxon period the
English law which was developing had a layer of Roman law within it and Precedent played a
pivotal role in the Roman law. "Precedent was the very essence of Roman public life and the
Romans found a large place for what we may call 'Precedent ,' in the widest sense, in their
legal system."1 But then after some time the concept of following Precedents i.e. stare
decisis, abruptly, came to an end. Then in English law also this thing disappeared before the
advancement of heathen invaders. The people of Briton were driven into the Wales and
Damnonia and with them they carried there law and custom. A great part of the custom then
prevalent in Briton was incarnated in the sentences of Aethelbert, King of Kent (circa A.D.
600), in the sentences of Ine, King of Wessex (circa A.D. 690), in the regulations of King
Alfred the Great (circa A.D.900), and in the English sentences of Cnut, who died in A.D.
1035.They therefore became the law and it therefore became the lawmaker for England. In
the Early thirteenth century Bracton wrote his famous treatise "Be Legibus et
Consuetiulinibus Angliae."In his treatise he has taken large portions from Roman law and
declared that these were also the law of England. But the book was basically planted on the
Kings court of which he was himself a judge for eighteen years .Bracton cited more than 500
cases in his treatise but before him, the writers cited only few cases and “showed a diversity
of practice. Precedents are constantly employed and followed, but the judges did not
necessarily consider themselves bound by them, and there are a great many conflicting
decisions in pari materia." They are cited by Bracton as Precedents deserving great respect.
This shows that now the use of Precedent was felt. At the time of 1307-1537 there was
another practice adopted, in which record of the kings court was kept and it became the ‘Law
Report’ and the content therein, i.e., these decisions and arguments in the Kings Court, by
which the knowledge could be acquired which demonstrate that the concept of Stare Decises
was indirectly coming into the legal system of people and was partly becoming the law
because that was the only way the young lawyers could gain knowledge and for them it
became the law. The development of equity is entwined which the development of Precedent.
We are focussing on the head of the chancery the Chancellor who was the King’s secretary of

4
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

State for all departments and kept the King’s great seal and did other writing work in the
name of the King. The main function of the Chancery was the issuing of writs to enable a
suitor to bring an action at law. The common law had grown up round the royal writs and
remedies for wrong were totally dependent upon them. A person who wanted to bring an
action had to go to the Chancery and obtain an appropriate writ from the clerks thereafter
paying the fees. The numbers of writs were however limited and if a person’s cause of action
could not be brought under any of the recognized writs, the common law provided no
remedy. Even though a plaintiff’s action fell within one of the recognized writs, he was often
unable to obtain a remedy in the common law courts because of the strength of the defendant
who would defy the court or intimidate the jury. Persons who could not get adequate relief
owing to the shortcomings of the common law began to present their petitions to the King-in-
Council. The number of such petitions to the King as fountain of justice increased and it was
not possible for him to cope with the work. Therefore the hearing of such petitions fell on the
Chancellor, who was an ecclesiast-generally a bishop. He was also the King’s Prime Minister
and an important member of the King’s council, learned in the civil and canon law. With the
passage of time these petitions began to be presented to the Chancellor directly. These
Chancellors now started issuing new writs based on equity for which common law had no
remedy. This developed “Equity Courts” in England.So now we can see, in the development
of equity courts a need was felt that the decisions should be made by going beyond the scope
of common law. By doing that, they were creating the laws by their own judgements and
these judgements were recorded as there were number of similar cases and the past
judgement were used there and thus following Precedent became a source of law there. A
respect for Precedent grew up in this Court as it was there in the Courts of Common Law. So
now we can understand how the Precedent came into the legal system and what was the need
of such kind of development. The development could be shown like this. The Source of law
is the reason or wisdom of the courts. In common law legal system, the law is created and/or
refined by judges: a decision in the case currently pending depends on decisions in previous
cases and affects the law to be applied in future cases.

5
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

THE DEVELOPMENT OF PRECEDENT

The concept of Precedent gained recognition in the kings’ court in the form of ‘Law Reports’
being kept, as evident from the previous chapter. But even in the mid-nineteenth century, a
judge of first instance was not deterred in holding a Chancery appeal as a mistake and he was
not bound by it. This is evident from the case of “London Street Tramways Co. v. London
County Council 4” wherein it was held that “the former rule that the House of Lords were
absolutely bound by its previous decisions was not completely settled until the end of the
Nineteenth Century. It would not be out of place to mention the two major stages in the
development of the concept of Precedents, being stages supported by the declaratory and
realistic theory respectively. The former states that the common law does not change - in each
case the law is merely re-stated but not added to - the judges are declaring what the law is, on
the basis of past decisions. This stage is aptly summed up in the case of “Willis Vs
Baddeley” This created a lacuna in the field of law, as Precedents arose from novel situations
rather than renewed thinking. As a result many bad Precedents came to be relied upon, and
hence could not be overruled. This period of legalism continued, with judgments deduced
rather than decisions reached until the 1950s. The development of the concept of Precedents
can be better explained with the help of celebrated cases. First being the case of Quinn v
Leathem wherein the concept of treating conspiracy to injure as a legal wrong was
recognised. "It is," said Lord Macnaghten, "a violation of legal right to interfere with
contractual relations recognised by law if there be no sufficient justification for the
interference.”. In the abovementioned case, the celebrated case of Allen V. Flood was
discussed in detail but was not strictly followed. So we can see that the practice of citing
previous cases was not alien and was given its due. Then in “Donoghue v. Stevenson” in
which the principle of neighbourhood was defined which was further upheld in cases
involving negligence and so on which shows how a principle laid down in one case had a
binding effect on so many other cases which in turn created a law and it also shows how such
innovation of law has helped in the development of social justice because without such
innovation, the law would be poorer, and Parliament may not have taken such a bold step for
the greater good. Similarly in the case of Ryland v. Fletcher the principle of no fault
liability/strict liability was expounded which is of great significance in today’s society. This
principle has found a lot of praise across the globe and is cited as a complete authority in
similar cases. Thus from this we can safely conclude that the practice of laying down legal
principles was rampant in the judiciary which was over the passage of time regarded as an

6
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

authoritative source of law. This practice of laying down Precedents has helped in the
development of law over many ages and continues to do so.

DEVELOPMENT OF PRECEDENT IN INDIA

When India became part of the British Empire, there was a break in tradition and Hindu and
Islamic laws were supplanted by the common law. As a result, the present judicial system of
the country derives largely from the British system and has little correlation to the institutions
of the pre-British era. Prior to the Indian independence, the doctrine of judicial Precedent was
first recognised under Sec. 212 of the Government of India Act, 1935. The Sec. provided that
the law declared by the federal court and by the judgment of the Privy Council shall be
binding on all courts in British India. The High Courts in India were bound by the decisions
of the Federal Court and Privy Council. But the Federal Court and the Privy Council were not
bound by their own previous decisions. The Federal Court was not bound by the decisions of
the Privy Council but with regard to other civil matters, Privy Council decisions were binding
on the Federal Court of India. After the Constitution of India came into force, the Supreme
Court became the Highest Court in the hierarchy of courts in India. Therefore, the decisions
of the English Court have merely persuasive value and it is not obligatory for the Supreme
Court to follow them. It is not even bound by the obiter dicta of the English Courts. Similarly,
the judgments of the Privy Council are not binding of the Supreme Court. However, the
decision of Privy Council and Federal Court are binding over the High Court unless they are
contrary to the decision given by Supreme Court. After the concept of Precedent was
introduced in India by the britishers it was not followed impartially because in similar
situations different judgement were passed for English subject and Indian subject, favouring
the English. This had to be changed and was done by incorporating article 141 in the Indian
constitution which states that “The law declared by the SC shall be binding on all courts
within the territory of India”.which clearly shows the evolution and importance following
Precedent in a civilised society. Now, we see how Art141 has helped in the development of
Precedent by going through some popular cases. Vishakha v. State of Rajasthan : In a
landmark judgement, the Supreme Court did not wait for to ratify an international treaty, but
went ahead and laid down rules to protect women from sexual harassment at the work place.
Here we see how the Supreme Court had made a law on which the government has not
enacted any law yet it is followed all over India because it has an authoritative effect on all

7
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

the court and so if any case similar to this arises the above mentioned judgement will be
followed.

The evolvement of precedent can be clearly in India with the help of following cases: In Re
Berubari case the Supreme Court said “The preamble is not the part of the constitution and
therefore it cannot be regarded as a source of substantive power” where as in Golknath vs
state of Punjab case Supreme Court overturned its decision and hence we can see that
precedent was not blindly followed in India .Further we see that SC also said in Golaknath
case that parliament has no power to amend the constitution under art.368 which was again
overturned in Kesavananda Bharati v. The State of Kerala and Others .But the orders of this
case was used as precedents in Minerva Mills Ltd. v. Union of India. This shows that
evolvement of precedents in India has been a systematic process and not a blind-fold one, and
it is still evolving.

8
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

FLEXIBILITY OF PRECEDENT

A major disadvantage of judicial precedent is how rigid it is. An unjust precedent can lead to
further injustices, as once the Supreme Court sets an unjust precedent it won’t be overruled
until a case with similar facts goes on to the Supreme Court on appeal. Also, the use of
distinguishing to avoid past decisions have lead to some areas of law becoming very
complex. It can also be argued that judges are overstepping their constitutional role by
actually making the law rather than just applying it. Judicial precedent maybe seen as
undemocratic as it is the role of Parliament to create law, the judiciary are there to enforce it.
In the same way it can also be seen as undemocratic as judges are not elected and therefore
should not be making law. Another disadvantage is that there is no opportunity for the judge
to research or consult experts on the likely outcomes or effects of their decisions. Therefore
judges are confined to making their decisions based on the arguments presented in the course
of the case. Despite the doctrine of judicial precedent being a major factor in the English
legal system, there are a number of ways by which a judge may avoid following a precedent.
Distinguishing is a method which can be used by a judge to avoid following a precedent. If a
judge finds that the material facts of a current case are sufficiently different from those of a
previous precedent and can draw a distinction between them, then he is not bound by the
previous decision.

Two cases that demonstrate this process are Balfour v Balfour 1919) and Merritt v Merritt
(1971). In both cases a wife was making a claim against her husband for breach of contract.
The judgement in Balfour was that the claim could not succeed as it had been a domestic
arrangement rather than a legal one and therefore was not legally binding. In Merritt the court
held that there was a legal contract between husband and wife and the agreement had been
made in writing and took place after they had separated.

This distinguished the case from Balfour, the agreement in Merritt was not just a domestic
arrangement, and it was a legally enforceable contract. This provided sufficient differences
between the cases that the judge in Merritt did not have to follow the judgement made in
Balfour. Another mechanism which can be used by judges to avoid following precedent is
overruling where a court in a later case states that the legal ruling decided in an earlier case is
wrong. Overruling is where a higher court does not follow a precedent set in a previous case,
either by a lower court or by itself.

9
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

This may occur when a higher court overrules a decisions made in an earlier case by a lower
court. An example of a superior court overruling a previous precedent set by a lower court is
Hedley Byrnes v Heller and Partners (1964) which was a claim for damages arising from
negligent and misleading advice. The House of Lords overruled the decisions of the majority
in the Court of Appeal in Candler v Crane Christmas (1951) and held that there can be
liability for making a negligent mis-statement. However, too frequently overruling casts
doubts on the certainty of the law and leads to inconsistencies.

For lawyers to be able to give good advice the law must remain relatively “safe to predict”
and this not the case if senior judges use every available opportunity to reverse the decisions
of their predecessors. Some alarm was caused in the 1986 case of R v Shivpuri (1986) which
was the first use of the Practice Statement in a criminal case. The House of Lords overruled
their own previous decision made in Anderton v Ryan which had only been made twelve
months earlier as they believed that the law (Criminal Attempts Act 1981) has be incorrectly
applied.

On the other hand, the House of Lords have often been reluctant to overrule even bad
previous decisions. This was illustrated in Jones v Secretary of State, where the decision in R
v Dowling was allowed to stand even though four of the seven Law Lords thought it was
wrong. The need for certainty is still highlighted in the decision of the House of Lords since
1966. Both of these practises can be useful in allowing flexibility within the law but can also
lead to uncertainties and inconsistencies which undermine the reliability of the system.

However, where these two parallel ideas of certainty and flexibility is concerned, there will
never be one definite solution to satisfy all. Disapproving can also be used by judges to avoid
following precedent; this is where a judge states in his judgement that he believes the
decision in an earlier case is wrong. This may occur where the present case is on a related
point of law but the point of law is not sufficiently similar for the earlier decision to be
overruled. It can also occur where the judge in a lower court in the hierarchy than the court
which made the original decision.

In this situation the lower court cannot overrule the superior court however they can
disapprove of the decision by expressing their view that it was wrong. An example of this is
found in the case of R v Hasan (2005), this case was about the availability of the defence of
duress by threats, to a criminal offence. The main point of the case was whether a defendant

10
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

could use the defence of duress if he should have realised that he was putting himself in a
position where he might be pressurised into committing an offence.

Reversing is similar to overruling however it occurs where a higher court does not follow
precedent set by a lower court in the same case. Reversing is where the same case has gone to
appeal and the appeal court reaches the opposite decisions to that of the lower court. An
example of reversing is found in Fitzpatrick v Sterling House Association Ltd (2000). In this
case the Court of Appeal refused to allow the homosexual partner of a deceased tenant to take
over the tenancy due to regulations laid out in the Rent Act 1977.

On appeal the House of Lords reversed the decision of the Court of Appeal. The Practice
Statement 1966 was issued by the House of Lords, declaring their intention not to be bound
by their own previous decisions. The Practice Statement allowed the House of Lords to
change the law if they believe that the decision made in an earlier case is wrong. It gave them
to the flexibility to refuse to follow an earlier judgement when ‘it appears right to do so’. This
was shown in the case Herrington v British Railways Board (1972) which involved the law
on duty of care owed to a child trespasser.

In the case of Addie v Dumbreck (1929), the judgement was that an occupier of land would
only hold a duty of care for injuries to child trespassers if they were caused deliberately. In
Herrington the Lords held that social and physical conditions had changes since 1929 and
therefore the law should also change. The judgement in Herrington was that land owners did
owe a duty to prevent injury or death to child trespassers. The Court of Appeal can also
refuse to follow its own previous decisions under three exceptions that were bought up in the
case of Young v Bristol Aeroplane (1944) These exceptions are as follows; If a previous
decision conflicts with a later House of Lords (Supreme Court) decision, it must follow the
decision of the House of Lords; if there are two conflicting previous decisions then the Court
of Appeal must choose between them. •If its previous decision was made per incuriam e. g.
mistakenly or without care •If the House of Lords (Supreme Court) has overruled a previous
decision of the Court of Appeal There is an additional reason for the Court of Appeal to
depart from following its own past decisions and that is where it has been disapproved by the
Privy Council.

Privy Council opinion has only persuasive value, it is not binding. An example of this is
where Morgan Smith killed a former flatmate during a fight. His defences were that he did
not intend to kill or cause grievous bodily harm; that he was suffering from diminished

11
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

responsibility; and that he was provoked. The focus of the appeal was on the objective part of
the test for provocation and whether the reasonable person could be given certain
characteristics of the accused, in this case the characteristic of having a severe depressive
illness. The Court declined to follow the opinion in Luc Thiet Thuan v R (1996).

It is also important to mention in the effect of the Human Rights Act 1998 on judicial
precedent. If the precedent was set before the Human Rights Act came into force, the
precedent may be contrary to it. As with judicial precedent itself, there are also a number of
advantages and disadvantages to the avoidance of precedent by the courts. One advantage is
that it allows potential for growth and means that case law is not completely rigid. The
different mechanisms for avoiding precedent allow judges to develop and modernise the law
when it is necessary.

An example of this is the case of Hall v Simons (2000) where the House of Lords modernised
the law and held that barristers could be held accountable for negligently presenting a case in
court. In this case the court refused to follow the decision made in the case of Rondel v
Worsley (1967) as it was deemed that the commercial world had changed significantly since
1967. Sometimes precedents can be developed to a point in which they are seen to be unfair,
avoiding precedent allow these unfair laws to be replaced with more appropriate ones.

In the case of R v R and G (2003) which involved two very young defendants convicted of
arson, the House of Lords used the Practice Statement to avoid following the precedent set in
the case of Caldwell (1981). The question facing the House of Lords was whether the
defendants had foreseen the risk; they held it was unfair to judge the actions of an 11 and 12
year old by the standard of a reasonable person. The House of Lords brought about a change
in the law meaning that if the question of recklessness should come up, a subjective test is
used which requires the defendant to have foreseen the risk.

A disadvantage of avoiding precedent is that the law changes as a result, creating laws
retrospectively. This can be seen as being unjust, as the precedent that is set applies to events
that have already happened. It may be that the defendant in a case committed an act that at
the time of commission was actually within the law. This was the case in R v R (1991), at the
time of the attack, the law stated that a man could not be found guilty of raping his wife. Due
to the retrospectively law making, the defendant was found guilty and imprisoned.

12
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

When there is a chance that a judge may avoid precedent it can remove the certainty within
the law and make the outcome of some cases uncertain. This is unwelcome as justice requires
that cases and defendants are treated in the same way. It also causes problems for legal
professionals, who will not be able to advise with certainty on the likely outcome of a case. In
criminal law certainty is particularly needed because the liberty of the defendant is at stake.
In the case of Howe (1987), the House of Lords held that duress was no defence for murder,
whether the defendant is the principle or an accessory.

This case overruled the earlier House of Lords decisions in DPP v Lynch (1975), where it
was held that duress was available as defence when charged with being an accessory to
murder. Also, avoiding judicial precedent does not conform with the idea of separation of
power. Only Parliament should create new law and it is the role of the judiciary to apply it.
However when judges avoid following precedent they inevitably create new law. 1. Black’s
Law Dictionary, p. 1059 (5th ed. 1979).

13
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

CONCLUSION

Precedent is a distinct source of law. It not only creates new law but also provides solutions
for the contemporary problems. The quality of Precedent as a source of law is that the law
which flows from it is critically legal. This is not the case with the law passed by the
legislation. Although, the language of a statute is more formal in nature, it is the creation of
executive which is not a legal body. In case of legislation, law is enacted by the persons who
are not well versed with other law at domestic level and at international level. The situation is
different with Precedent . Here the law is made by judges who are having a sound knowledge
about the law is and what it ought to be. Further, the making of law by way of Precedent is a
quick process. Legislature takes a considerable time to enact the law. Then time is taken to
pass the law and finally the law is put into force. This is not the case with Precedent . Making
law by way of Precedent is a quick process. There exists no formality. A new law can be laid
down in each case if the judge so decides. Further, In case of legislation the government has
to take concern about the other parties who are supporting it and the consequences of the
statute on their vote bank. This is not the case with Precedent. Judges render judgment free
and fearlessly. They are not under any pressure. Generally, the decisions rendered by the
judges are meant for law reforms and how the law can be applied for the best interest of
deprived class. Precedent is an instant method of making new law as per the needs of the
society. No doubt, judiciary is more active and concerned about the rights of the citizens. Yet,
due to the applicability of doctrine of separation of powers judiciary generally keeps itself
from creating new laws. Many a times the courts have declared through its judgment that
their work is to interpret the law enacted by the legislature and they cannot interfere with the
work of the law making body.

14
 EARLY DEVELOPMENT OF DOCTRINE OF PRECEDENT IN COMMON LAW

BIBLIOGRAPHY

 V.D.Mahajan, Jurisprudence and Legal Theory(5th edn. Eastern Book

15