Kinds of Precedent: Classifications and Legal Authority

2026-05-31

Exam Snapshot

Precedents are judicial decisions serving as authority for future cases. Crucial distinctions exist between binding (Authoritative) and non-binding (Persuasive) precedents, alongside the constitutional status of SC decisions in Nepal under Article 128(4).

Core Concept

Precedent is a source of law where judicial decisions become legal rules.

Types by Authority

• Authoritative Precedent: Judges must follow this. Lower courts are bound by the doctrine of stare decisis.
• Persuasive Precedent: Judges are not obliged to follow but will consider it for its weight (e.g., Obiter dicta, foreign judgments).

Types by Function

• Original Precedent: Creates a new rule of law (case of first impression).
• Declaratory Precedent: Applies an existing, well-settled rule of law to new facts.

Nepal Law Anchors

• Article 128(4): Supreme Court precedents on constitutional and legal interpretation are mandatory for all to follow.
• Procedure Codes (2074): Precedents are binding on subordinate courts; deviation without distinction is grounds for appeal.

Confusable Terms

• Ratio Decidendi vs. Obiter Dictum: Ratio (legal reasoning) is Authoritative. Obiter (passing remark) is Persuasive.
• Original vs. Declaratory: Original creates new law; Declaratory merely applies existing law.

MCQ Traps

• Foreign Precedents: Indian Supreme Court decisions are Persuasive in Nepal, not Authoritative.
• Obiter Dicta Trap: Just because an SC judge says something doesn't make it binding precedent; only the Ratio Decidendi is.

Example

• Original: Defining a new standard for the 'Right to Privacy' where no statute existed.
• Declaratory: Applying the settled 'standard of proof' in a criminal case.

Memory Hook

• Authoritative = Always binding.
• Persuasive = Politely consider.
• Original = Out-of-the-box (New).
• Declaratory = Declares what exists.

Quick Revision

• Ratio: Binding reasoning.
• Obiter: Non-binding remark.
• Constitution: Article 128(4) mandates compliance.
• Stare Decisis: Stick to decided cases.