Doctrine of Precedent

Q. Explain the doctrine of precedent and distinguish between authoritative and persuasive decision. [20 marks - 2018]

Doctrine of Precedent

The doctrine of precedent, also known as stare decisis, is the legal principle that courts should follow previous decisions when deciding similar cases. This means that once a court has decided a point of law, the same law must be applied to future cases with similar facts. Lower courts must follow the decisions of higher courts, but higher courts can overrule lower courts and sometimes their own decisions.

This doctrine aims to bring certainty and conformity to the decisions of the court and to the law. Precedent plays an instrumental role in the development of law and society. It ensures equality and fairness by means of treating similar cases in a similar manner.

Authoritative and persuasive precedents 

According to Salmond, authoritative precedents are those that judges are bound to follow regardless of whether they agree with the principle or not. They are one of the major sources of law. Authoritative precedent establishes a set of definite rules and is backed by legal force that binds other courts to follow it. 

Persuasive precedents, as the name suggests, are judicial precedents that merely have an element of persuasion attached to them. They do not have any legal force or authority that obligates the courts to follow them; rather, it is left to the discretion of the courts to take into consideration the effect of such precedents. They do not directly establish any law but could lay the groundwork for an authoritative precedent that might be established later. 

For example, in the English legal system, only the decisions of the superior courts of justice are authoritative precedents whereas in American, Canadian, or Irish courts the decisions laid out are merely persuasive precedents.