Efficacy of Doctrine of Precedent: Analysing of the Common and Civil Law Countries with Reference to India

Abstract

Famous jurist Salmond, explained precedent as ounce of gold in tons of unnecessary material in a Judgement. He opined; the legislations are coins ready to be used in a realm. Precedents are creative interstitial (filling up gap in legislation and declaring guidelines in absence of legislations) law making by the Judges, which are flesh and blood in a statutory skeleton. Precedents are primary source of law, in the common law countries like India.3 However in Civil law countries, as for example in continental Europe, precedents are not as strong as in common law countries. In Civil law countries, as for example in France, there are exhaustive codes, like French Criminal Procedure Code. Judges in Civil law Countries most of the time need not to be creative as in common law countries. The main sources of law in Civil law countries, as for example in France, are legislations, edicts of Courts and Juristic opinion. The edicts of Court, rarely has values of precedent. Though Higher Courts’ jurisprudence needs to be followed by the lower Courts. In common law countries, it is a pain to identify the precedent/ obiter dicta in a voluminous Judgment. In Civil law Countries, there is no such pain, as judges are hardly expected to interpret. They are expected only, to apply the law to a fact. A comparative analysis of doctrine of precedent, in Common law Countries and Civil law countries, are worthy of analysis, as it will help us to iron out creases in our legal systems, and we can incorporate the beneficial qualities from the Civil legal system.