This may be discussed taking into consideration:

• Overruling a Precedent
• Refusal to Follow a Precedent
• Impugning a Precedent
• Abrogated Decisions
• Decisions of Equally Divided Courts
• Incorrect Decisions

Overruling a Precedent

If a precedent is overruled, it becomes null and void, and is deprived of all its authority. It is substituted by a new principle. Only a superior jurisdiction can overrule a precedent.

Refusal to Follow a Precedent

The act of refusing to follow a precedent is an act of co-ordinate jurisdiction. Two courts of equal authority are under no obligation to follow precedents established by each other. They do not have the authority to overrule the other’s precedents but hey can refuse to follow them. When this happens, the two conflicting decisions have to wait for a Court superior to both of them to resolve the conflict by choosing to apply one of the precedents.

Impugning a Precedent

If a point of law has not been argued at all or a precedent has been passed sub silentio, no precedent is created in regard to it. However, if a point is badly argued, the inadequacy of the precedent is a ground for having an authoritative and binding precedent impugned.

Abrogated Decisions

Abrogated Decisions include:
1. Decisions which have been overruled or reversed by a higher Court
2. Decisions which lose their authority because a statute which conflicts with them is enacted later.

It is not entirely clear what happens when a decision is overruled or reversed on a point other than that on which it had been previously decided, although the general view appears to be that the point which the later judgment does not speak of is not overruled or reversed but that it loses some of its authority as a precedent.

Decisions of Equally Divided Courts

Courts are rarely, if ever, equally divided – the general practice is for a Court to sit with an uneven number of members. However, an appeal is usually dismissed if the Appellate Court is equally divided following the maxim omnia praesumitur pro negante.

Incorrect Decisions

Decisions which are incorrect may be based on an incorrect understanding of the principles of law. Logically, they should not be binding but they may be allowed to stand on practical considerations if they have stood the test of time.

Court practice varies considerably. It appears that if people have entered into contracts relying on an incorrect decision, or if the decision affects proprietary rights, the courts will not overrule it although they are likely to overrule a decision which does such things as affect citizens’ rights.

Reference: Salmond on Jurisprudence

Judicial precedents may be classified into authoritative and persuasive precedents.

 

The difference between authoritative and persuasive precedents is not always clear-cut though. For example, a decision of the Bombay High Court is authoritative as far as the District Court in Pune is concerned and it is only persuasive as far as the Calcutta High Court is concerned. To deal with this, Salmond spoke of conditionally authoritative precedents of which he said, “In all ordinary cases, it is binding, but there is one special case in which its authority may be lawfully denied. It may be overruled or dissented from, when it is not merely wrong, but so clearly and seriously wrong that its reversal is demanded in the interests of the administration of justice. Otherwise, it must be followed, even though the Court which follows it is persuaded that it is erroneous or unreasonable.”

Non-authoritative Precedents

A precedent is not binding if:
1. It is made in ignorance of a statute.
2. It is inconsistent with the earlier decision of a higher Court.
3. There exist earlier conflicting decisions of the same rank.
(One might wonder how there can be such an inconsistency if a Court is bound by its own precedents – the answers, however, is simple: such inconsistency can occur if and when the conflicting decision is made before the binding force of a later precedent is recognised, or if the relevant precedent is simply overlooked and not cited in the later case.)
4. It is not comprehensively argued and a precedent is passed sub silentio.

Precedents Sub Silentio

A decision is said to have been passed sub silentio if:
1. It involves a point of law, A, which the Court does not consider while making its decision.
2. The Court bases its decision on another point, B.
3. It is shown that the Court would logically have had to decide Point A in order to decide Point B.
In such cases, the decision is not a precedent as far as Point A is concerned.
Precedents passed sub silentio have no authority. This rule is over three hundred years old – a reference to it was found in R v. Warner (Ward), 1661.

Reference: Salmond on Jurisprudence

Different legal systems treat judicial precedents as either evidence of law or as sources of law.

Roman Law, and systems of law based on it, treat legal precedent as having nothing more than high persuasive value. They are treated as belonging to the same category as expert legal opinion: they are not authoritative and Courts are not bound by them.

However, in the Common Law system, precedents have far more value – Common Law has itself been created by the decisions of judges. They are authoritative and Courts are bound to follow them.

There are thus two theories with regard to precedents: the first is that reported decisions can be cited by lawyer and may be followed by Courts and the second is that precedents are authoritative and will be followed by Courts.

There has been much debate about whether or not precedents should be treated as being binding. The arguments in favour of treating precedents as being binding are that they ensure uniformity and predictability in the application of law while the argument against the binding authority of precedents is that they make the law far too rigid and difficult to reform.

There are safeguards to ensure that precedents do not become too rigid though:
1. A higher Court can always reverse the decision of any of its subordinate courts
2. A Court need not follow a precedent established by another Court of co-ordinate jurisdiction e.g. one High Court need not follow a precedent established by another High Court
3. Any Court can cast aside a precedent by ‘restrictively distinguishing’ it i.e. by limiting its application to the case which established it by saying that it is limited to that case because of its peculiar facts.

There is also a theory called the Declaratory Theory which states that Common Law is customary law but case law is not – precedents are merely declaratory in nature. As such, they do not create law and all decisions are nothing more than statements of existing law.

The Declaratory Theory obviously never held sway in the Court of Chancery – the history of the Court was too well known for anyone even to be able to pretend that the principles of equity which it applied originated wither in custom or in statute.

Reference: Salmond on Jurisprudence