Precedent in English Jurisprudence
Q. define precedent and explain it
kinds ?
Q. What do you understand by Ratio
Decidendi? Explain the factors that destroy or diminish its application.
1. Introduction :
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum.
2. Definition Of Precedent:
I. According To Prof. Osborn:
“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”
II. According To Prof. Keeton:
“A judicial precedent is a judicial decision to which authority has in some measure been attached.”
3. Ratio Decidendi:
Ratio decidendi is a reason of which the judge decide the case. It describes the principal of the case.
I. Definition:
(i) According to Prof. Salmond:
“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”
(ii) According to Repert cross:
“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
II. Effect Of Ratio Decidendi:
According to Salmond, the concrete decision is binding between the parties to it but it is the abstractratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it.
4. 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 dictum.
I. Definition Of Obiter Dicta:
(i) Prof. Patterson Stated:
Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.”
(ii) Dr. Goodhart; s stated:
“A conclusion based on a fact the existence of which has not been determined by the Court.”
1. Introduction :
Precedent is created by judicial decisions which may be given either by a supreme or a subordinate Court. It is an important source of law. A judicial precedent is one which contains in itself a principal of law. That underlying principal is termed as Ratio Decideni while other things which are said by the Court by the way or the statements of law and which are beyond the requirement of the particular case are termed as obiter Dictum.
2. Definition Of Precedent:
I. According To Prof. Osborn:
“Precedent is a judgment or decision of a Court of law cites as an authority for deciding a similar set of facts.”
II. According To Prof. Keeton:
“A judicial precedent is a judicial decision to which authority has in some measure been attached.”
3. Ratio Decidendi:
Ratio decidendi is a reason of which the judge decide the case. It describes the principal of the case.
I. Definition:
(i) According to Prof. Salmond:
“A precedent is a judicial decision which contains in itself a principal. The underlying principal which turns from its authoritative element is often termed the ratio decidendi.”
(ii) According to Repert cross:
“A ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion.”
II. Effect Of Ratio Decidendi:
According to Salmond, the concrete decision is binding between the parties to it but it is the abstractratio decidendi which alone has the force of law as regards the world at large. The Court while deciding questions on principal have either to follow an already existing rule of law or if there is not authority to formulate some general rule and act upon it.
4. 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 dictum.
I. Definition Of Obiter Dicta:
(i) Prof. Patterson Stated:
Obiter dictum is a statement of law in the opinion which could not logically be a major premise of the selected factors of the decision.”
(ii) Dr. Goodhart; s stated:
“A conclusion based on a fact the existence of which has not been determined by the Court.”
II. Advantages Of Obiter
Dictum:’
Following are the advantages of obiter dictum:
(i) Obiter dictum help in the growth of law.
(ii) These sometimes help the cause of the reform of law.
(iii) The judges are expected to know the law and their observations are bound to carry weight with the government.
(iv) The defects in the legal system can be pointed out in the obiter dictum.
(v) They serve to suggest solutions to problems not yet decided by the Courts.
5. Conclusion:
To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law.
Following are the advantages of obiter dictum:
(i) Obiter dictum help in the growth of law.
(ii) These sometimes help the cause of the reform of law.
(iii) The judges are expected to know the law and their observations are bound to carry weight with the government.
(iv) The defects in the legal system can be pointed out in the obiter dictum.
(v) They serve to suggest solutions to problems not yet decided by the Courts.
5. Conclusion:
To conclusion, I can say, that the decision given by the judges contains ratio decidendi i. e., the reasoning and sometimes the obiter dictum which are nothing but the observations of the judges on a particular point which is not strictly relevant to the point in-issue but which is helpful for the growth of law.
No comments:
Post a Comment