Judicial Precedent: Stare Decisis, Per Incuriam, and Prospective Overruling
Exam Snapshot
Judicial precedent is the backbone of the legal system, ensuring consistency. Focus on the binding nature of Supreme Court decisions and the specific exceptions like per incuriam and prospective overruling.
Core Concept
A judicial precedent is a legal principle created by a court decision that subsequent courts must follow. It is the application of the doctrine of precedent to ensure predictability.
Nepal Law Anchors
- Article 128(4), Constitution of Nepal: The legal principle propounded or the law interpreted by the Supreme Court is binding on all courts and judicial bodies.
Key Doctrines
- Stare Decisis: The doctrine of 'standing by things decided'. Lower courts must adhere to the decisions of higher courts when facts are substantially similar.
- Per Incuriam: A decision reached in ignorance or forgetfulness of a binding statute or precedent. Such a decision is not binding on subsequent courts.
- Prospective Overruling: A judicial technique where a court changes an established legal principle but declares the new rule applies only to future cases, avoiding retrospective disruption.
Comparison Table: Binding vs. Persuasive
| Feature | Binding Precedent | Persuasive Precedent |
|---|---|---|
| Obligation | Must be followed | May be considered |
| Authority | Supreme Court decisions | Obiter dicta / Other jurisdictions |
MCQ Traps
- Trap: Thinking 'per incuriam' just means a wrong decision. Correction: It must involve ignorance of a binding statute or precedent.
- Trap: Assuming all Supreme Court observations are binding. Correction: Only the ratio decidendi (reason for the decision) is binding; obiter dicta is persuasive.
Memory Hooks
- Stare Decisis: Stay decided (stand by the decision).
- Per Incuriam: 'In-cur-ium' = Incurred by ignorance (not binding).
Quick Revision
- Art 128(4): Supreme Court precedents are binding.
- Stare Decisis: Consistency in law.
- Per Incuriam: Decision in ignorance of law is not binding.
- Prospective Overruling: Limits change to future cases only.