Judicial precedents may be classified into authoritative and persuasive precedents.
| Authoritative Precedents | Persuasive Precedents |
|---|---|
| Those which judges must follow | Those which judges may follow |
| They are legal sources of law. | They are historical sources of law. |
| e.g. Decisions of superior Courts | e.g. Foreign judgments, judicial dicta, juristic works |
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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.â€
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