Legislation versus Precedent

Picture two households with one television. In the first, the parents write out house rules at the start of the year: homework before screens, one hour a day. Everyone knows the rules in advance, and they cover evenings that have not yet happened. That is legislation. In the second, nothing is written. One evening two children fight over the remote, the mother decides that whoever finished homework first may choose, and the next time the quarrel breaks out everyone follows her ruling. That is precedent. Her ruling fits the real quarrel, but the first loser was judged by a rule nobody had announced. Legislation in full is in Note 23 and precedent in Note 24; this note sets the two side by side.

1. The Two Defined

Legislation in the strict sense is the deliberate making of law by a competent authority, expressed in an authoritative written text. Precedent is law made by courts: a decided case furnishes a rule for later cases on similar facts, and the discipline of following it is stare decisis. Blackstone called the statute law lex scripta and the common law lex non scripta, though the latter is found in written reports. The labels capture the difference: a statute's authority lies in its words, a precedent's in the principle a later court extracts from the reasoning.

2. Salmond's Case for Legislation

Salmond's six advantages of legislation over precedent are the standard answer, and the list in Note 23 is used here unchanged. Each advantage of legislation is a matching weakness of precedent.

3. The Case for Precedent

Precedent's merits are the mirror image of legislation's defects. It grows out of practice, answering a dispute that has actually arisen rather than one a drafter imagined. It is concrete: the rule comes attached to facts, which illustrate its meaning, while a statute's abstract words may fit badly the cases no one foresaw. It is flexible: a later court can distinguish a precedent on its material facts, confining or extending it by small steps, while a statute stays fixed until amended. And it is made by experts, judges trained in the law, after argument from both sides on the precise point, while a legislature works under political pressure and may draft in haste.

The historical school valued exactly these qualities: for Savigny, law grows like language from the consciousness of the people, and jurists and judges working case by case are its natural voice (Note 13). Even Austin, who wanted codes, accepted that society could not have gone on without judicial law-making; his complaint was against the hidden and piecemeal way judges legislated (paraphrase).

4. The Differences Explained

Made on purpose, or declared in deciding

Legislation is made by the legislature (or a delegate) as a deliberate act, on its own initiative. Precedent is declared by judges in deciding a dispute, and only when a litigant sets the court in motion; the making of law is incidental to doing justice in the case.

General and abstract, or particular and concrete

A statute states a general rule for a class of situations in abstract terms. A precedent answers a particular question on concrete facts, and later courts must draw out its general rule. Hence the level of generality of a ratio is often disputed (Note 92), while the scope of a statute is a question of interpreting its words (Note 42).

The whole text binds, or only the ratio

Every word of a statute is law, provisos and definitions included. In a judgment only the ratio decidendi binds; obiter dicta, findings of fact and dissents do not (subject to the Indian rule that considered obiter of the Supreme Court binds the High Courts: Note 24). A statute is law in its letter; a precedent only in its principle.

Prospective, or retrospective

A statute normally speaks to the future. A precedent reaches back, because the declaratory theory of Hale and Blackstone holds that judges only declare what the law always was, so the new rule governs events that happened before it was announced. Bentham called this 'dog law': a man waits until his dog does something he dislikes and then beats it. Prospective overruling, adopted in Golak Nath (1967, 11 judges, 6:5), is the courts' own admission of the problem (Note 24).

Legislation abrogates; courts interpret

In a conflict a valid statute prevails over case law. In Burmah Oil Co v Lord Advocate (House of Lords, 1964) compensation was held payable for oil installations destroyed by the British army in Burma in 1942; Parliament answered with the War Damage Act, 1965, abolishing the right retrospectively. But the courts interpret every statute, and Gray concluded that statutes are only sources of law until the courts apply them (Note 22). A statute soon gathers a body of case law around it.

5. The Codification Debate

The comparison became a political argument about codification. Bentham, who coined the word, wanted English law reduced to codes so that citizens could know it and judges could no longer make it after the event. Austin also favoured codification. When Thibaut proposed a German civil code in 1814, Savigny replied that his age was not ready: law grows from the Volksgeist, and a premature code would freeze an immature law (Notes 13 and 23). Germany codified in 1896, and India became a great codified system, from the IPC of 1860 to the BNS of 2023; yet every code soon acquired a mass of case law explaining it, which is Savigny's point in another form.

6. The Indian Interplay

In India the relation is fixed by the Constitution. Article 141 makes the law declared by the Supreme Court binding on all courts; Articles 245 and 246, with the Seventh Schedule, distribute legislative power. Each source checks the other: the legislature can change judge-declared law, but the courts can strike down a statute that exceeds competence or violates fundamental rights (Art. 13(2)), and even an amendment cannot alter the basic structure (Kesavananda Bharati, 1973, 13 judges, 7:6). Four patterns recur.

Precedent fills a gap until legislation arrives

Legislation answers a precedent

A legislature may remove the basis, not overrule the judgment

Courts interpret, and must respect their limits

In Vineeta Sharma v Rakesh Sharma (2020) the Supreme Court read Section 6 of the Hindu Succession Act, as amended in 2005, to make a daughter a coparcener by birth whether or not her father was alive on the date of the amendment, overruling its own earlier reading. The courts have also warned themselves against taking over the legislature's work.

7. Evaluation

The two sources are complementary. Legislation is the instrument of policy and reform: only it can remake a whole field, operate prospectively and give fair notice. Precedent is the instrument of refinement, fitting general rules to untidy facts and filling unforeseen gaps. The risks are opposite: a legislature that overrides courts by merely declaring judgments ineffective, which Prithvi Cotton Mills forbids, and a court that legislates in place of the legislature, which Aravali Golf Club warns against.

8. Frequently Asked Questions

Q. Which prevails in a conflict, legislation or precedent?
A. A valid statute prevails over case law. But in India the courts can strike down a statute that exceeds legislative competence or violates fundamental rights, and they decide what every statute means.

Q. Why is precedent said to operate retrospectively?
A. On the declaratory theory a court only declares what the law always was, so its ruling governs past conduct. Prospective overruling, used in Golak Nath (1967), is an exception.

Q. Can Parliament nullify a Supreme Court judgment?
A. Not directly: merely declaring that a judgment shall not bind would be an exercise of judicial power. It may, within its competence, change the law on which the judgment rested, even retrospectively (Prithvi Cotton Mills, 1969).

See also: Note 23 (legislation), Note 24 (precedent), Note 22 (sources of law), Note 92 (ratio versus obiter), Note 42 (interpretation), Note 13 (historical school), Note 103 (legislation versus custom).