Classification of Precedent
So as a precedent may also be classified as like;
- An original precedent whether it is one that creates and applies a new legal rule; or other
- A declaratory precedent whether it is one that such does not create a new legal rule but merely applies such an existing legal principle.
However latter organization is a technical one that does not fall within Hale's definition of a "declaratory precedent". By Hale is said "the decisions of the courts of justice as in England do not make a law properly so-called, just such that only the King and Parliament can do; so yet they have a great weight and authority in, declaring and expounding and publishing what the law is".
Here Salmond conversely contends that as "both at law and in equity, conversely the declaratory theory as formulated by Hale must be totally rejected whether we are to attain to any sound analysis and explanation of such true operation of judicial decisions. Moreover we must admit openly such precedents make law as well as declare it and hence we must have admit further such this effect is not merely accidental and indirect then the result of judicial error in interpretation and the authoritative declaration of the law. Further doubtless judges have many times altered the law whereas endeavouring in good faith to declare it.
Although we must recognise a distinct law-creating the power vested in them and openly and lawfully exercised. Therefore original precedents are such outcome of the intentional exercise through the courts of their privilege of developing and maintain the law on the same time such they administer it".