The Authority Behind Precedent : A Sociological Footnote
The reasons given in support of the doctrine of precedent by Paton are1 "that it is adequate proof of custom, that it shows res-pact fee the opinion of one's ancestors, that convenience demands that a question once decided should not be subject to re-argument In every case in which it arises". In addition. Paton observes that "some claim as a virtue of precedent that it leads to certainty and others that flexibility is the chief merit". There is the view "that precedent leads to the scientific development of the law."2 This is not convincing according to Paton. It is also claimed that the individual caprice of the judges is controlled by the necessity of following binding precedents3.
The three points according to which the doctrine of precedent is more easy to apply in England than in other countries are the centralised system of justice,4 the absence of a written constitution5 and the doctrine of sovereignty of parliament.6 The sociological base of the precedent is not sufficiently under-stood at all in the enumeration of the justification of precedent by Paton, for the following is what he says which has some relevance to it.7 "It is also urged that the doctrine has practical advantages — it is true that the case method is closely related to the facts in its development, but precedent is an hindrance since the truly practical method would allow of experiment and an opportunity to correct ana's mistakes". The most widely read book on the English doctrine is that of Professor Cross8 who gives9 three principal reasons for the doctrine of binding precedents in England as opposed to Prance to be "The need for certainty in the law was formerly felt more keenly by the English judge10 than most of the judges on the Continent,11 the highly centralised nature of the hierarchy of the English courts, and the difference in the position of the judges in the two12 countries".
One would suspect that the real sociological point is overlooked in the above argument.
In the list of theories of judicial decisions given in a widely used American book13 on the nature of the judicial process and its advantages none is found demonstrating why a judicial decision is having the authority it wields in common law.
The real basis of the doctrine of precedent, it is suggested, is the fact that a judicial decision, as arrived at by the common law system, is, sociologically speaking, the best guide to rely on in a subsequent similar case. Therefore it is authoritative.
A careful survey of the rules of the judicial process would make it clear. The Civil Procedure Code, the Criminal Procodure Code, the Evidence Act, the Limitation Act and similar legislation covering our litigation procedure have the ultimate intention of making the decision in a case as fool proof as is humanly possible. The necessary parties are to be on the party array, unnecessary parties are to be excluded. Thus collusive litigation is discouraged because if spurious parties carry on a collusive litigation the resulting decision would be sociologically worthless. The court has to be satisfied that the parties are genuinely at issue. The rules of pleadings are aimed to bring out the real points at issue between the parties. Evidence is to be taken only on these issues.
The law of evidence is intended to ensure that the best evidence alone is adduced, except where overwhelming public interest precludes the same. The judge is to be independent and competent. There is a public trial and arguments are heard to
The authentic adversary nature of the par ties, the impartiality and competence of the judge, the quality of the evidence, the availability of appellate courts for correction, reliable reports, of the decisions are all invaluable for the authenticity of the decision. If we read the progressive tightening of the doctrine of precedent in English law it would be fo
und that it is pari passu the realisation of each of the items mentioned above. That is why this doctrine became a characteristic of English law only by the middle of the 19th century and later.14 The reasons given by Paton for the difference between the continental system and the English system namely the presence of a Code and the importance of text books were not probably the basic difference which will explain the absence of the development of a rigid doctrine of precedent on the continent. The real difficulty must have been the disrupting influence in social conditions as a result of the Napoleonic wars and the revolutions that took place in the various states of the Continent which made it difficult for a theory of precedent to develop.
The basic strength of a previous decision for reliance in a subsequent decision according to the sociological theory stressed in these pages is the closest resemblance between the two in all social facts. It will, therefore be appreciated that unless the social stability and social facts at the time of a previous decision are not fairly analogous to those at the time of a subsequent apparently similar dispute it will be dangerous to follow the earlier decision as a precedent to conclude the later dispute. For example in a sociologically static society (relatively speaking) a society which is having a regular or gradual pace for its growth, words will have more or less the same meaning, over a fairly long span of years. For example in a society that has undergone a 100% inflation in 10 years the word 'wealthy' as applied to a man who is worth Rs. 10,000/. before the inflationary period would be meaningless to be applied to a man 10 years after who has only Rs. 10,000/- Similarly the word 'treason' applied at a time when parliamentary army was fighting against a despotic king can scarcely be applied without change of sense to the action of a national at a time when a foreign army is invading the same country. If applied, the application would be disfunctional. Therefore the continental revolutionary history precluded the development of a doctrine of precedent which the social stability of England was able to eater for in the ninteenth century.
Analytical jurisprudence buttressed by the historical variety also provided a proper base for the support of the doctrine of precedent as it developed in England. When the British Empire was at its zenith any change would be for the worse and for such a community analytical jurisprudence with the imperative theory of law vaunting positivism was preferable to sociological jurisprudence which cared for the exploration of the ultimate cause of events from the point of view of the needs of society. In such a situation to say that judges only declare law and do not create it is a convenient coverage to mask the truth that judges are legislating.
The proposition that sociological similarity is the basic justification for the doctrine of. precedent brings with it a number of corollaries.
Firstly the stress on dictionary should be transferred to sociological data, economic statistics, psychiatric information even geographical considerations. This last is as old as Montesque, in any case. The older a precedent the weaker, other things being equal. should be its authority. This does not mean that tomorrow India is going to throw up all its precedents. The statement of the Supreme Court in Gajanan v. Brindaban14A is our law. What is meant is a general conscious adoption of the principle declared in Fatechand v. State of Maharashtra.15
Indeed in legal systems there could be rerecognisable epochs: for example the pre and post revolution periods in the U.S.A. or Franca and the pre and post independence period in India. Decisions before such a date should be cited with greater discrimination and accepted Sparingly and only when all sociological conditions are analogous. For example the experts might say that if India has to follow the judicial decisions of the U. S. A. the re. event epoch is that in which the Supreme Court declared the Income-tax Act ultra vires, forced employees to work through the 'lapour injunction' and permitted entre-preneurs to create great financial empires and thus made the foundation of the present economic structure possible.
Greater attention has to be focussed by the Indian Supreme Court on legal systems which are sociopolitically similar to ours rather than on those of countries whose cultural and historical backgrounds and economic environments a re utterly different to ours to the extent that the legal decisions of the latter are speaking in substance, a different language. India would do well to seek light also from Sri Lanka, Burma, Malayasia, even China rather than only from legal systems of countries like the U. S. A., U. K. Canada -and Australia. Latin American countries like Bra. zil, which has similar climate, flora, fauna and economic development, would give us possibly as relevant legal material as the legal decisions, of countries like France or Sweden. The legal systems of many of the independent countries of Anglophonic Africa has transplanted into them many of the Indian statutes like the Indian Penal Code. The law which developed there on those statutes and knowledge of the way the courts of those countries have attempted to solve their social problem with the, aid of those statutory tools are highly: relevant to Indian legal experiments. Even the countries of Francophonic Africa with similar economic levels will cortainly have at least as much to teach us as decisions of courts in legal systems having very different economic level, cultural background and traditional mental make-up.
Again to say that we should today open our windows to get air and light from sources from which we did not seek them before does not mean that we should close the doors that we have been keeping open till now. One difficulty of our present generation of lawyers arises from the fact that our legal education has been exclusively on English model and that model has a facade of the sovereignty of Parliament. Statutory interpretation unknowingly tends always therefore to descend to the level of interpretation of municipal legislation. To remedy this, close attention to all Federal constitutional law is beneficial. Again, till the other day, classical English. law went about denying the existence of Administrative Law while inevitably in India it has been flourishing luxuriously. Careful study of French administrative law is therefore highly useful for us in India to discharge our duty of administering this branch of public law. Scandanavian countries nurtured the institution of Ombudsman. Whether the institutions that did well in these small, affluent, law-abiding communities could be grafted to our legal system requires close study of the nature, structure and function of that machinery in those countries.
But along with the elements already mentioned we have to look into the weapon of amparo of the Mexican Law,16 the concept of tribal property in some of the African Coustitutions, the institution of Procurator in the socialist legal systems and Japan etc. etc. to ensure that the precedents laid out by the Indian Supreme Court had the benefit of light from all available sources. Of coarse there are certain indigenous sociological parameters that will control the courts in India.
One could with some justification say that the rules of law are like rules of architecture. Take the Occident and the Orient; India and England in the matter of architecture. In cold countries the object of building is to keep as much wind out and light in. Ho they build in glass and have the roof in concrete and as terrace. In the East, say in a place like Kerala, where we have about 100 inches of rain fall and sultry climate and incessant glare of the sun, the object of building ought to be to permit as much air in and to shut out as much sun and at the same time to have pointed roof covered and tiled, Instead at one time following the West as 'Fashion' they built in glass and concrete and with flat roofs and suffered horribly.
Fourthly the highest tribunal has to take care to stop quoting from other sources. The source of authority of such 1 tribunal is the authority of its source. The strength of a decision of a supreme Court is the fact that it is the Supreme Court under the Constitution. But its sociological strength is the inherent persuasiveness of its decision which is weakened and not strengthened by quotations from other courts Indian or foreign. A decision of the Supreme Court of India which today covers one-sixth of mankind cannot be strongthened by quoting from its previous decisions or worse from other legal systems or equally bad, from inferior courts or judges. If a point completely covered by a previous decision of the Supreme Court is wrongly understood by a High Court, then on appeal to the Supreme Court a per curium and short judgment simply intimating that fact could suffice. If a point covered by a Supreme Court decision is again taken up against a judgment of the High Court by the disappointed party in appeal to the Supreme Court, then the appeal should be refused in limine as the American Supreme Court does through denying certiorari.17
In the group of unwanted judgments come plural judgment. The Court has to decide the dispute before it. It cannot plead non liquet. But the decision must cover the case completely except possibly in constitutional cases where at a time the smallest piece needed to decide the dispute need be taken cognisance of. Unless necessary, dissent is not welcome. A concurring judgment is expected to give a distinct reason for the decision not given by the other opinion which decides the case. But without any distinct reasoning a separate judgment has no rationality and every judge forming the Bench writing a concurring judgment and giving the same reasons and the same conclusion weakens the force of the judicial process.18 One is reminded of the follow comment on a Northern Ireland case in an old issue of the law Quarterly Review.19
Why should a judgment of the Supreme Court have any quotation at all when it is the text for future quotation by lower Courts, professors, book-writers and the world at large ? Then it should be quotable. If each judgment does not create a precedent the Supreme Court would be repeating itself. What is suggested is that the moment the Supreme Court takes up the attitude delineated above it will be seen that it takes its rightful place in the leadership of a group of legal systems. And that is the challenge of this epoch.
To discharge all the above mentioned duties the present pattern of appointment to the Supreme Court probably requires a second look. The average span of judges on the U. S. A. Supreme Court is 19½ years. Longer tenure on the Mian Supreme Court Bench also may be necessary. Much younger men are to be recruited. Lawyers directly from the Bar and Professors of law will have to be included among the judges. Expert civil servants are to be taken as judges to create along with ordinary judges Administrative Divisions of the Supreme Court and the High Courts. This arrangement will be an answer to the present criticism about judicial control of tribunals and executive action that it is a case of the non-expert supervising the expert. To interpret a Constitution containing extensive judicial review of legislation and judicial control of administrative action itself needs some years of practice and learning from the Bench itself. If a precedent is to be path-making the path-makers have to be experienced.
Author Name: AT Markose
