Sources of Law-precedents

Sources of Law Precedents

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Ratio decide idendi (plural rationes decidendi) is a Lat Latin phrase meaning “the reason for the decision.” Ratio decidendi refers to the legal, mor moral, al, pol politic itical al and and soci social al prin princi cipl ple es on whi which a court’s decisi decision on rest rests. s. Ratio is a ruling on a point of law and the decision on a point of law depends on facts of a case.

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Ration decidendi can be determined or identified in the following ways: By distinguishing material facts from unimportant facts. By discovering the precedents applied to identify the court’s approach.

By restricting analysis to the majority opinions. By reading out subsequent decisions and considering it at several levels.

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Stare decisis translates to "let the decision stand". This means courts considering a certain kind of case generally have to follow the rulings in previous court cases. It also helps people know what to expect when faced with certain legal issues. You can simply to look to previous court decisions in order to find out how a court might rule in your case.

Obiter dicta •

Words of an opinion entirely unnecessary for the decision of the case.  A remark made or opinion expressed by a judge in a decision upon a cause, "by the way", that is, incidentally or collaterally, and not directly upon the question before the court or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent.

Minority Opinion •

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A minority opinion is an opinion by one or more judges in a legal case who disagree with the decision reached by the majority. A minority opinion is also termed dissenting opinion or dissent. A dissenting opinion does not create binding precedent or become part of case law. They may have persuasive value.

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The dissenting opinion may disagree with the majority for various reasons such as: a different interpretation of the case law, use of  different principles, or a different interpretation of the facts. Dissents are written at the same time as the majority opinion, and are sometimes used to dispute the reasoning used by the majority.

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Additional District Magistrate of Jabalpur v. Shiv Kant Shukla, popularly known as the Habeas Corpus case Given the important nature of the case, a bench comprising the five senior most judges consisting of A. N. Ray, P. N. Bhagwati, Y. V. Chandrachud, M.H.Beg and Hans Raj Khanna was convened to hear it

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While four judges agreed with the government view that even fundamental rights like the right to life stood abrogated during Emergency. Khanna's dissenting opinion, claiming that the Constitution did not permit right to life and liberty to be subject to executive decree, is widely regarded as a landmark in Indian democracy

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He wrote in his dissenting opinion: The Constitution and the laws of India do not permit life and liberty to be at the mercy of the absolute power of the Executive . . . . What is at stake is the rule of law. The question is whether the law speaking through the authority of the court shall be absolutely silenced and rendered mute... detention without trial is an anathema to all those who love personal liberty

Judgment per Incurium •

A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate  jurisdiction which covered the case before it, in which case it must decide which case to follow

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Per incuriam is a Latin terms which means "through lack of care". A court decision made per incuriam is one which ignores a contradictory statute or binding authority, and is therefore wrongly decided and of no force. A judgment that's found to have been decided per incuriam does not then have to be followed as precedent by a lower court.I

Reversal and Overruling •

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Reversed: where on appeal in the same case the decision is reversed, the initial decision will cease to have any effect Overruled: where in a later case a higher court decides that the first case was wrongly decided

Distinguished •

Distinguished: where an earlier case is rejected as authority, either because the material facts differ or because the statement of law in the previous case is too narrow to be properly applied to the new set of facts

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a judge may seek to interpret an earlier decision before applying it or distinguishing it, thus the effect of the earlier case is varied in the circumstances of the present case.

Question of Fact •

A question of fact is a question as to what "happened" in a given legal matter:

Was the defendant present at the scene of the crime? •

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Were the fingerprints lifted from the weapon untainted and belonged to the defendant? Did the defendant act in response to a reasonable belief that their life was in danger by the victim of the crime?

Question of Law •

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A question of law is generally more of a procedural question: Are there sufficient facts alleged by the plaintiff to support their case? Were the defendant's Constitutional rights violated when the police searched his house without a warrant? Is the copy of the contract that the defendants want to admit an authentic copy of the contract? Is the witness that the plaintiff wants to present actually an expert in their field?

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In law, a concurring opinion is a written opinion by one or more  judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.

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As a practical matter, concurring opinions are slightly less useful to lawyers than majority opinions. Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent and cannot be cited as such. But concurring opinions can sometimes be cited as a form of persuasive precedent (assuming the point of law is one on which there is no binding precedent already in effect). The conflict in views between a majority opinion and a concurring opinion can assist a lawyer in understanding the points of law articulated in the majority opinion.

Distinguishing Distinguishing The process of cutting down the expressed ratio decidendi of a case Example The court accepts the earlier ratio decidendi of the earlier case and does not seek to curtail it, but find that the case before it does not fall within this ratio because of some material difference of fact.

Communis errorfacit jus •

A precedent acquired added authority by lapse of time.

Circumstances when the precedent will not remain binding •

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1. Abrogated decisions: Statute or statutory rule inconsistent with it is subsequently enacted or if it is reversed or overruled by higher court.

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2. Judgment given in ignorance of the statute

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Per incurium judgments

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3. Sub-silentio judgment

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A particular kind of decision on a point not argued

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A particular point of law involved in the decision is not perceived by the court or present to its mind.

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4. inconsistency with the earlier decisions of the Higher Court

Advantages of precedent •

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1.flexibility to legal system to bring it to the tune of public opinion 2. The case law is more perfect as it is laid down in presence of actual problem 3.Case law is more easier to understand 4. The objective of the statute will be known to people through interpretation 5.The application of law after discussing all perspectives of the problem before hand.

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5. Brings certainty in law

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6. Brings scientific development in law

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7.Guides judges

Disadvantages •

1. Possibility of overlooking the authority

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2.Development of law depends upon the incidents of litigation

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3.sometimes extremely erroneous judgment may become law

Custom as source of law •

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Customs come into existence due to necessity or convenience Any particular conduct , imitated by a group of people for a long time becomes a custom.

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Customs can be divided into two classes

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1. Customs withut sanction

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2. Customs with sanction

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A. General Customs

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B. Local

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I geographical Local

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Ii personal local customs.