This theory was propounded by Sir Mathew Hale as early as I 1713 when he said: “…the decision of courts of justice…do not make a law properly so called, for that only the king and parliament can do; yet they have a great weight and authority in expounding, declaring, and publishing what the law of this kingdom is.”
However, it was Blackstone who formally enunciated this theory. According to him: “A judge is sworn to determine , not according to his own judgement, but according to the known laws and customs of the land, not delegated to pronounce a new law but to maintain and explain the old one jus decree et non jus dare.”
This means that the judges can only declare the law, and never make or give new law. The staunchest supporters of this Blackstonian doctrine were the judges themselves For example, Lord Esher MR said; “…there is in fact no such things as judge-made law, for the judges do not make the law, though they frequently have to apply existing law to circumstances as to which it has previously been authoritative laid down such law is applicable.”
This Blackstonian doctrine uncompromisingly asserts that the function of judge is jus decree et non jus dare, i.e., to discover in the existing rules of the law the particular principle that govern the facts of individual cases. Judges are, therefore, only ‘law finders’ rather than law makers.
Criticism of the Theory
This classical theory of Blackstone has been subjected to severe criticism by eminent jurists. The great law reformer Jeremy Benthan said that the statement that judges only declare the law is ‘ a wilful falsehood having for its subject the stealing of legislative power by and for hands which could not or durst not openly claim it’.
His discipline john Austin also has assailed it as a ‘childish fiction employed by our judges that judiciary or common law is not made by them, but it is a miraculous something made by nobody, existing, I suppose from eternity and merely declared from time to time by the judges.’
Several other eminent jurists like Munro Smith and Holmes also consider that this orthodox theory cannot be taken seriously.
Judges as Lawmakers Theory
The second theory of precedent is that judges make law. Law made by a judge is as real and effective as any statute. A number of jurists have supported this view.
Prominent among them is Prof. Dicey who says; “As all lawyers are aware, a large part and, as many would add, the best part of the law of England is judge made law – that is to say, consists of rule to be collected from the judgements of the courts.
This portion of the law has not been created by acts of parliament and is not recorded in the statute boo. It is the work of the courts it is recorded in the reports, and it is, in short, the fruit of judicial legislation.”
An American jurist Prof. gray has however taken an extreme view contending that judges alone are makers of law. He says, ‘Whoever hath an absolute authority to interpret any written, it is he who is truly the law giver to all intents and purposes and not the person who first wrote or spoken them,’ and he concludes, A fortiori whoever hath an absolute authority not only to interpret the law but to say what the law is truly the lawgiver.’
Although this theory proclaims that the judges make law, it is to be admitted that they do not enjoy an unrestricted power of laying down abstract principle of law. There are certain well-defined limitations on the power of judicial legislation. For instance;
(i) The judges has no power to ignore or override the provision of a statute. he is duty bound to enforce the statutory provisions ,leaving to the legislature to deal with any unpleasant consequences not foreseen at the time of passing the act.
(ii) An authoritative precedent limits the law making power of the judge.
(iii) The judicial legislation is restricted to the facts of the case placed before the judges, which is the outcome of an accidental course of litigation.
(iv) Only the ratio decidendi, and not the obiter dicta, has a binding force and authority of law.
It is thus clear that within certain limit judges have the power of profoundly influencing the development of law. Even if they do not ‘make’ the law in the usual sense of promulgating at will the rules of human conduct, it must be acknowledged that they develop the law by contributing several original precedents.
HIERARCHY OF COURTS
For the operation of the doctrine of precedent, a settled hierarchy of courts is imperative, because the basic rule of precedent is that a court is bound by the decisions of all superior courts. In India, as we know, the Supreme Court is the highest court of law in civil, and constitutional matters.
There are high courts at the state level and civil and criminal courts below the high court. Article 141 of the Constitution states that the law declared by the Supreme Court of India shall be binding on all courts in India.
The question whether the Supreme Court is bound by its own decision under art 141 was raised in Bengal Immunity Co Ltd v State of Bihar. In that case it was held that although the words, ‘all courts in India’ appear to be wide enough to include the Supreme Court.
As a result, the Supreme Court is not bound and is free to reconsider its previous decisions in appropriate cases. This position was reiterated in Sajjan Singh v State of Rajasthan wherein it was held that the Constitution does not place any restrictions on the powers of Supreme Court to review its earlier decisions or even to depart from them.
The court made it clear that the doctrine of stare decisis should not permitted to perpetuate erroneous decisions to the detriment of the general welfare. The court recognised the need for exercising restraint in overruling previous decisions stating that the power must be exercised only when consideration of a substantial and compelling make it necessary to do it.
When there is conflict between the two decisions of the Supreme Court, the decision of the larger Bench prevails over that of the smaller Bench. This principle is true that in the case of high courts also.
ADVANTAGES AND DISADVANTAGES OF PRECEDENTS
* There is certainty in the law. By looking at existing precedents it is possible to forecast what a decision will be and a person can plan accordingly.
* There is uniformity in the law. Similar cases will be treated in the same way. This is important to give the system a sense of justice and to make the system acceptable to the public.
* Judicial precedent is flexible. There are a number of ways to avoid precedents and this enables the system to change and to adapt to new situations.
* Judicial precedent is practical in nature. It is based on real facts, unlike legislation.
* Judicial precedent is detailed. There is a wealth of cases to which to refer.
* Difficulties can arise in deciding what the ratio decidendi is, particularly if there are a number of reasons.
* There may be a considerable waiting period for a case to come to court for a point to be decided.
* Cases can easily be distinguished on their facts to avoid following an inconvenient precedent.
* There is far too much case law and it is too complex.
EXCEPTIONS TO BINDING PRECEDENT
If two judges Bench find a judgement of a three judges Bench to be so incorrect that it cannot be followed in any circumstances, keeping view of judicial discipline and propriety, the proper course is to refer the matter before it to another Bench of three judges.
Pradip Chandra Parija v/s Pramod Chandra Patnaik AIR 2002 SC 296 ;(2002) 1 SCC 1. It is impermissible for a High Court to overrule the decision of the Apex Court on the ground that the Supreme Court laid down legal position without considering any other point.
High Court cannot question the correctness of the decision of the Supreme Court even though the point sought before the High Court. Suganthi Suresh Kumar v/s Jagdeeshan (2002) 2 SCC 420.
When a court differs from the decision of a co-ordinate bench of a Single Judge of High Court, the decision should be referred to Larger Bench. Ayyaswami Gounder and others v. Munnuswamy Gounder and others, AIR 1984 SC 1789: 1984(4) SCC 376.
If a division bench of a High Court differs from the view expressed by another division bench of the same court, it is appropriate that the matter is referred to a larger bench.
Rajesh Kumar Verma v. State of Madhya Pradesh and others, AIR 1995 SC 1421: 1995(2) SCC 129; Sundarjas Kanyalal Bhathija and others v. The Collector, Thane, Maharashtra and others, AIR 1991 SC 1893; 1989(3) SCC 396. Union of India and others v. Godfrey Philips India Ltd., AIR 1986 SC 806; 1985(4) SCC 369.
Division Bench of Supreme Court consisting of two Judges cannot over rule the decision of a Bench of two Judges as it would be an inappropriate.
Javed Ahmed Abdul Hamid Pawala v. State of Maharashtra, AIR 1985 SC 231; 1985(1) SCC 275. When there is a conflict of opinion that is when there is disagreement by one single judge with the decision of another single Judge it is appropriate that the appropriate course is to refer the matter to a larger bench for an authoritative decision.
Shridhar son of Ram Dular v. Nagar Palika, Jaunpur and others, AIR 1990 SC 307; 1990 Supp. SCC 157. One Full Bench decision cannot over rule another Full Bench Decision delivered by Judges of equal strength. Shyamaraju Hegde v. U. Venkatesha Bhat and others, AIR 1987 SC 2323: 1987 Supp. SCC 321.