The Doctrine of Precedence and the principle of Stare Decisis

We have since we started the lectures on law, been told of the crucial importance of reading case
law to better understand our legal system in Mauritius. Today, I shall talk on the Doctrine of
Precedence which is an inheritance of the Common Law system which was instilled in
Mauritius before the French took over.
The doctrine of precedence is a policy which courts in the Common Law systems have adopted.
From that policy was born the principle of stare decisis, a Latin term which means Let the
decision stand or Stand by the decided. According to that principle, the decisions made by a
higher court in a similar case is binding on the same court and on lower courts in future cases in
the jurisdiction, until a new precedence becomes law or comes into application.
In other words, the policy was that courts have to abide by rulings established by higher courts in
earlier cases.
In Common Law system like England, cases or precedents are sources of law according to the
principle of stare decisis.
It is important to note that it is the principle and most important distinction between the Common
Law and the Civil Law system. In the latter, more weight is given to codes of law and to views of
scholars explaining those codes.
For you information, there are two types of precedents:
1. Binding precedent
- Courts have to follow a precedent if facts are similar. It involves a whole process
during which judges distinguishes facts from points of law so as to avoid
consequences of inconvenience.
2. Original precedent
- If a point of law has never been decided before, a judge will give a decision that will
become the new precedent for future reference. But before reading a decision, the
judge will look for cases that share some similarities.
Now, it is also important to talk about what is the decision that relevant to a judge during his
interpretation of a precedent. No two cases are similar, so no facts will be similar. Therefore, we
can assume following this logic that it is only part of the decision that will be considered.

A decision of a judge falls into two parts:

1. Obiter Dicta (Obiter Dictum/Dictum/Dicta/Obiter)
- Obiter Dicta is of persuasive authority. It is speculations on different hypothesis
before giving a decision.
- Dictum can take several forms, including the following:
1. Facts not essential to the courts decision.
2. Recitation of rules, or portions of rules, not essential to the courts decision.
3. Discussion of hypothetical situations not actually before the court.
4. Statements about facts and law made in dissenting opinions.
2. Ratio Decidendi
- The Ratio Decidendi of a decision is the binding part. It is reason for decision; it is
the principle of law on which the decision is based. It occurs when a judge applies the
law to the facts to which evidence has been given. And when the judge gives the
reason to why this law has been applied to such facts, it is this part that we call the
ratio decidendi.
- To ascertain the ratio decidendi of a case, first, it is necessary to determine all the
facts of the case as seen by the judge; secondly, it is necessary to discover which of
those facts [the judge] treated as material.
In theory, dictum does not have value as precedent under the doctrine of stare decisis. In practice,
however, it often has persuasive authority. (Many well-settled rules of constitutional law have
their origins in dissenting opinions of earlier Supreme Court cases.)
Whenever you read a case, decide the following:
With regard to the rules stated which were necessary to the decision of this particular case? This
includes parts of rules stated but unnecessary for the case.
With regard to the facts identified, which were material in deciding this particular case?
What statements about the law and facts are unnecessary to the decision of the case?
When you identify dictum, dont get too excited. It is weaker than the ratio decidendi, but not
powerless. You may fail to defeat an opponent who relies entirely on dictum, and your dictumloaded argument may wow a judge into dismissing your opponents dictum-less counterarguments. Given the choice, always choose to base your arguments on the ratio decidendi but
recognize that your success may depend on your ability to identify, use, and defuse dictum.

Advantages of stare decisis:

-

There is certainty in the law. Forecasting of what a decisions may be planned and loss
of time can be avoided.
There is uniformity in the law. Similar cases can be treated the same way thus making
justice seems more acceptable by citizens.
It is also flexible and can help the system change to adapt itself to new situations.
It is practical in nature as it is based on real facts unlike the legislation. And it is
detailed since there are many cases to refer to.

Disadvantages of stare decisis:

-

There is difficulty in deciding what the ratio decidendi of a precedent case is and it is
time consuming to research into.
Time-consuming as it takes time for a case to come in court
There are many case laws and they are too complex and it takes time to refer to them.

To what extents thus, can one use a principle like stare decisis which purpose is to look in the
past?
The law is a continuous creation of you society which evolves every day. The law proposed by
the legislator is only a mere will express the need of our social environment. But needs of people
changes and a new meaning us given to statutes by judges all of the time. As some famous jurist
once said: The law is after all what the judges say it is, since they are the interpreters of the
law. Of course, it should be an interpretation beyond reasonable doubts.
Therefore, may I ask if it would not be such a good thing to pay more attention to statutes?
[...]
In practical, Mauritius combines the use of both statutes and stare decisis. We may say thus
that this hybrid system works since many African nations look at our legal system as a
benchmark. Still, there are even though many things to make better in our system.

Let us question more the application of stare decisis in the Mauritian context.
Is there a strict application of the principle of stare decisis in our country?
What would be the consequences of a strict application?
-

Too much rigidity

No evolution in laws as times changes and society changes too.
Legal hair-splitting due to an enormous amount of case laws.

But if the doctrine of precedence was not applied, what would happen?
-

Too much flexibility and differences in decisions may give rise to uncertainty.
Citizens would not trust the law.

We may ask thus, why do courts apply stare decisis to a certain extent?
As mentioned, the doctrine of precedence is here to ensure that there is certainty, consistency and
stability in rulings or decisions of the courts; in other words, it stabilises the law. Decisions and
justice administration are fairer then. As no two cases share totally the same facts, courts
decisions have no universal application. Thus in practice, the judges apply the principle of stare
decisis by referring to a particular case or cases that share closely similar facts.
Precedence is considered the fine balancing act that the Judiciary has to accomplish. In carrying
out the judicial function, a number of factors will influence decisions-making and judges must
determine what weight to give to those factors. These factors include (1) the need for stability
and certainty in law; (2) the wish to do justice to both parties; (3) the need not to usurp the role
of the Parliament; (4) the need to justify decisions by reasoned arguments; (5) and finally, the
need to base a decision on at least one of the issues raised by the parties.
Although judges are required to perform many tasks over the course of legal proceedings when
considering the judicial function, attention is usually focused primarily upon the way in which
judges determine disputed questions of law. In arriving at their determination, courts are
expected to be consistent with decisions in previous cases and to provide certainty for the future.
Acts of Parliament bind judges because of the concept of separation of powers and parliamentary
sovereignty and case laws are binding because of judicial precedence.
This doctrine of judicial precedence has been transposed into our jurisdiction in 1850 when the
Supreme Court was established.
In Mauritius, there is no strict application since we make use of statutes and of the doctrine of
precedence.