Do Judges make law?

The answer to the heading of this article is, of course, YES and that indeed in legal language is called precedent or 'The Doctrine of Stare Decisis', implying that it binds courts to follow legal precedents set by previous decisions.

Bentham has stated judicial precedent as, "Judge made law".

Generally, Judicial Precedents has played an important role in all legal arrangements. 

Judicial Precedent is not an evidence of law but is a source to follow, which is binding on courts

Defining Precedent: Judicial precedent means such decision given by the court which contains a principle of law and such principles are to be applied in the future cases which involve same facts or same question of law until these principles are over ruled. In short, it can be said that is a rule for subsequent cases.

Types of Precedents

1. Authoritative Precedents

These types of precedents are the ones which contains mandatory binding force behind them and the judge must follow them once it is brought to his notice. These are considered as a source of law. These are the decisions of the higher court on issues involving same set of facts, which are binding on subordinate courts. In such precedents, there is no scope of discretion of the Judge in relation to it.

2. Persuasive Precedents

These on the other hand are the ones which judges are under no obligation to follow. For example, a decision of Gujarat High Court may be accepted or not by Rajasthan High Court, it depends totally on the discretion of the Court.

Requisites for Doctrine of Precedent

For doctrine of precedent to exist, two essential requirements are to be met:

1. Publication of Reporting: To follow a decision, publication of reporting is essential. Its use is only possible on its publications. This is done mostly through legal magazines or legal reporters like SCC, AIR, Cr.LR etc.
2. Hierarchy of Courts: For applicability of precedent it is important that a hierarchy of courts must be in arrangement (i.e., subordinate courts, high courts and above all the apex court) in absence of such a hierarchy no other courts would follow another court’s decision thinking itself to be of a superior nature. Article 141 clearly states that the law declared by Supreme Court must be binding on all courts, however Supreme Court is not bound by its previous decisions.

Ratio Decideni

It is the concrete decision which is binding between the parties which has the force of law. Judicial principles making a precedent authoritative are called ratio decidendi. It is obligatory on subordinate courts. No subordinate court can deny following them. Ratio Decidendi is basically the principle propounded by the Judge as the basis of his decision.

Obiter Dicta

Obiter dicta’s are generally that part of a judgment which do not form part of the Ratio Decidendi, subordinate courts are not bound to follow them, these only carry with them a persuasive effect. These usually are such principles about the law expressed by the Judge in his decision which is not necessary to solve the question arising from the decision, it is unnecessary for drawing conclusion. These however are not totally worthless, they sometimes help in cause of reform of law. Defects in the legal system can be pointed out in the obiter dicta.

Merits of Precedent

1. Precedents enable the judge to re shape law according to social needs. It provides useful guidance for the deciding judge in disposing of the cases,
2. The precedent helps people to know the intricate principles of law to a considerable extent,
3. Precedents provide useful guidelines for the judges in deciding cases before them,
4. Citing of Precedent and case law helps the members of the bar to substantiate their argument without wasting unnecessary time and energy. Much of the time of the legal fraternity is saved in searching the relevant law from the books,
5. Precedents provide flexibility for law to adapt itself into new situations and changing social conditions.

Demerits of Precedent

1. Judicial precedents are published in law reports which are in huge numbers, it becomes practically difficult to find one portion of the law enunciated by a particular court.
2. It often overlooks the fundamental rule of natural justice which states that in order for a law to be enforceable it first must be actually known,
3. At times erroneous decision of superior courts create practical problems for the subordinate judges as they are bound to follow these decisions howsoever wrong or defective it may be,
4. Precedent depends totally on case laws, therefore if there has been no litigation on a particular point then it may create hindrance in serving justice,
5. Judicial Precedents have been considered to be arbitrary in nature, i.e., judges are not responsible for their decisions to anyone and hence their decisions are likely to be arbitrary in nature.