(1) Introduction:-
Origin of precedent can be traced out from judicial decisions of Apex Courts of a country. In judicial setup of Pakistan, the Apex Courts are Supreme Court and High Courts, and decisions of these Apex Courts are considered as precedents. As High Courts are subordinate to Supreme Court, therefore it can s pointed out here in context of this relation between Supreme Court and High Courts that precedents can be decisions of superior as well as subordinate Courts. But it does not mean that judicial decisions of other subordinate courts are also precedents.
(2) Definition Of Precedent:-
Precedents are either adjudged cases or decisions of Apex Courts like Supreme Court or High Courts. In addition to this, Apex Courts, sometimes, hears some matters for which there exists no law. In such situations, Apex Courts use their discretionary jurisdiction to decide these matters and such decisions latterly assume status of law. These decisions are also precedents. And subordinate courts are bound to follow such adjudged cases or decisions.
(3) Theories About Precedents:-
As far as precedents are concerned, there are two prominent theories, which are followings:
(i) Theory of original precedent
(ii) Theory of declaratory precedent
(i) Theory Of Original Precedent:-
According to theory of original precedent, new legal rules are created and applied through precedents. The followers of this theory opine that judges make law in an indirect way through precedents.
(ii) Theory Of Declaratory Precedent:-
According to this theory, judges are not to make new laws; their duty is to interpret and explain already existing laws. In fact, this theory opines that judges possess no jurisdiction to make new laws, but they are to make decisions according to positive law. It means that precedents are just application of already existing legal rule.
(1) Ratio Decidendi:-
(i) Meaning:-
Ratio decidendi means that part of a case, which is about that principle of law on which a decision is based: When a judge passes judgment in a case, he/she describes those facts, which he/she finds have been proved on evidence. Then he/she applies law to such facts and arrives at a decision, for which he/she gives reason. This is called ratio decidendi.
(ii) Explanation:-
Following points are important for explanation of ratio decidendi:
a) Latin maxim
b) Legal phrase
c) Binding part of judicial decision
d) Determination of judgment
e) Reasons for decision
f) Creation of binding precedent
g) Use of ratio decidendi
a) Latin Maxim:-
Ratio decidendi is a Latin maxim.
b) Legal Phrase:-
Ratio decidendi is a legal phrase, which refers to those legal, moral, political, and social principles, which are used by a court to compose rationale of a particular judgment.
c) Binding Part Of Judicial Decision:-
Ratio decidendi is considered binding part of a judicial
d) Determination Of Judgment:-
Ratio decidendi can be explained as that point in a case, which determines judgment.
e) Reasons For Decision:-
Ratio decidendi can also be explained as reasons for decision. Such reasons are, in fact, those principles, which a judge uses when he/she makes his/her judgment.
f) Creation Of Binding Precedent:-
Through ratio decidendi, binding precedent is created. And subordinate courts are bound to follow such precedent when those cases, which have sufficiently similar facts, are presented to them.
(iii) Use Of Ratio Decidendi:-
Ratio decidendi is considered one of the most powerful tools, which are available to lawyers. With a proper understanding of ratio of a precedent, an advocate can compel a lower court to come to that decision, which that court is otherwise unwilling to make.
(2) Obiter Dicta:-
(i) Meaning:-
A judge can go on to speculate about what his/her decision would or might have been if facts of case had been different. This is an obiter dictum.
(ii) Explanation:-
Following points are important for explanation of obiter dicta:
a) Latin maxim
b) Unnecessary part of judicial decision
c) Persuasive precedent
d) Importance of obiter dicta
a) Latin Maxim:-
Obiter dicta is a Latin maxim, and it means other things said.
b) Unnecessary Part Of Judicial Decision:-
An obiter dictum is a remark or observation, which is made by a judge. Although such remark or observation is included in text of courts decision, yet it does not form a necessary part of courts decision.
c) Persuasive Precedent:-
Through obiter dicta, a binding precedent is never created. However, a persuasive precedent can come out of it. And it is not necessary for subordinate courts to follow such precedent, but they can consider it when they make their decisions.
d) Importance Of Obiter Dicta:-
Obiter dicta can be influential. Obiter dicta can suggest an interpretation of law, which has no bearing on the case at hand but can be useful in future cases.