• Mr. Lakshay Diwan

Understanding the Sources of Law.

The articles summarised the different sources of law and their classification.

What is law?

Law is a social science grows and develops with the growth and development of society. New developments in society create new problems and law is required to deal with those problems. According dictionary definition of Law, it means a rule established by authority or by custom. It regulates the behaviors of a community, Country, etc. In other words, it is the legislative pronouncements of the rules which should guide one’s action in society. To say, it is a rule of action to which human beings conduct must conform.


John Austin’s law definition states “Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects.” Thus, this definition defines law as a set of rules to be followed by everyone, regardless of their stature.


Hans Kelsen created the ‘pure theory of law’. Kelsen states that law is a ‘normative science’. In Kelson’s law definition, the law does not seek to describe what must occur, but rather only defines certain rules to abide by.


Meaning:

  • Word ‘Law’ has been derived from the Teutonic word ‘Lag, which means ‘definite’.

  • On this basis Law can be defined as a definite rule of conduct and human relations.

  • It also means a uniform rule of conduct which is applicable equally to all the people of the State.

  • Law prescribes and regulates general conditions of human activity in the state.

  • Meaning differs from writer to writer.

  • Positivists use the term to denote the Sovereign or the State who makes and enforce the laws.

  • Historical School uses the term to refer to the origins of law and so on.


Definitions:

  • According to C. K. Allen " agencies through which the rules of conduct acquire the character of law by becoming definite, uniform and compulsory".

  • According to Keeton Source means "the material, out of which is eventually fashioned, through the activity of judges".

  • Oppenheim defines source of law as " the name for a historical fact out of which the rules of conduct came into existence and acquire legal force".


Kinds of Sources of law:

Sources of law may be classified into -

  • Formal sources: The formal sources law also be called the Actual or ultimate Sources of law. According to Sir John Salmond, that "sources " from which a rule of law derives its force and validity.

  • Material Sources: The material sources of law are those which gives the matter or content of a principal of law. As the word material suggests, material sources deal with the substance, elements or constituent material of law. Material sources of law tells us what is contained in the law. According to Salmond, material sources are of two kinds:

  • Historical Sources: Historical Sources of law are those which expresses the history or evolution for the principal of law and the circumstances through which it attained the form of law. These Sources are un-authoritative, they are Sources in fact but they have no legal recognition. And have only persuasive value. Historical Sources may become legal if they are recognised by law. Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source.

  • Legal Sources: Legal Sources are those Sources which are the instruments or organs of the State by which legal rules are created. Example: Salmond has classified the Legal Sources of English Law into four divisions are as follows:


Sources of Law:

CUSTOMS

The origin of custom is obscure. Several writers have devoted themselves to trace the origin of custom. Some of them held that custom was derived from judicial sentences and not vice versa. Others thought that taboo was the “oldest unwritten code of law of humanity.” These opinions, however, do not explain adequately the origin of custom in general. It may be that some custom might have arisen in the way as Henry Maine, Freud and others describe, yet the question about the origin of custom in general is obscure and complicated. Just as it is difficult to say when society came into origin, in the same way it is difficult to tell when custom arose. Mc-Dougall writes: “The ends and purposes of many customs are lost in the mists- of antiquity. In some cases, perhaps, the ends have been never clearly defined in any one man’s mind. The custom may have arisen as a compromise or fusion between diverse customs, or through some purely instinctive mode of reaction or through perverted imitation of some foreign model. But, however, and for whatever purpose instituted, a custom once established, the practice of it always becomes in some degree an end in itself, and men are prepared to maintain it, often at great cost of effort or discomfort, long after it serves any useful end.”


The modern law that's utilized in courts has originated from various sources. of these sources of law fall into two important heads, namely: Principle Sources of Law and Secondary Sources of Law

Studies on ancient societies show that the lives of the primitives were dictated by the customs which developed during that point period due to the circumstances. When a particular activity is performed during a certain way, many repeatedly, it becomes a custom. Customs have played a serious role in forming ancient Hindu Law.


Customs are often broadly classified into:

  1. Without sanctions: Customs without sanctions are those which aren't obligatory and are followed thanks to the pressure of the society. it's mentioned as ‘positive morality’

  2. With sanctions: Customs which have sanctions are those which are enforced by the ruling body. it's these customs that we'll be handling within the law. These are again divided into two types:

  3. Legal Customs: Legal Customs act as strict rules that are meant to be followed by everyone and action is taken against anyone who breaks them. they're recognised by the courts and are a part of the law. Again, there are two aspects to legal customs, which are:

  4. Local Customs - Local customs are those sorts of customs which exist during a certain geographical locality and are thus a part of that place’s culture. it's specific thereto place alone. However, when certain communities migrate, they take their customs with them. And so, local customs are then further divided into two parts – geographical local customs and private local customs.

  5. General Customs – A general custom may be a custom that's not specific to one locality, but rather it's followed by the entire nation or country. they're also a part of the law.

  6. Conventional Customs: A conventional custom is a long time ‘usage’ which is taken into account legally binding because it's been incorporated in an expressly stated or implied contract. Before a court of law treats a standard custom as legally binding, certain prerequisites need to be fulfilled. Those are:

  • It must be shown that the convention is clearly established and also that the contracting parties are fully conscious of it. there's no fixed period before which a convention must be observed before it's recognised as binding.

  • The convention cannot alter the overall law of the land.

  • It must be reasonable.

  • Similar to legal customs, conventional customs are often divided into genral or local conventional customs


Essentials of Valid Customs:

Certain tests or essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. Some of the essentials of a valid custom are

  • Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial.

  • Continuity: It must have been practised continuously. If a custom is disturbed for a considerable time, a presumption arises against it.

  • Reasonableness: A custom must be reasonable. For declaring a custom inapplicable on the ground of unreasonableness, it will have to be shown that it is obviously opposed to reason.

  • Conformity with statute law: A custom, to be valid, must be in conformity with statute law. It is a positive rule in most of the legal systems that a statute can abrogate a custom.

  • Consistency: Custom must not come into conflict with the other established customs. There must be set in opposition to the other custom.


Theories of Customs

  • Historical Theory: As indicated by this school, custom contains its own legitimacy, since it would not exist at all except if some profound needs of the general population or some local nature of societal needs offer validity to it. The development of law does not depend upon the subjective will of any person. It because of the knowledge of the communities and civilizations that have existed throughout history. Custom is achieved from the common conscience of the general population. It springs from an innate feeling of right. Law has its reality in the general will of the people. Savigny calls it “Volkgeist”.

  • Analytical Theory: Austin was the main proponent of the Analytical theory. For him, Customs did not have any legally binding force in themselves. Their legal character is always subject to the assent of the Sovereign. For him, customs were merely reflection of law, and were not ‘real law’. Customs need the modification and the approval of judges, jurists or rulers for them to have any binding force on people. This is in consonance with his idea that all law is the ‘Will of the Sovereign”.



LEGISLATION

Since the emergence of legislatures in 13th century, legislation has emerged as the chief source of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for regulating the behaviour of the people. Later on, the legislature emerged as an organ of the government. It began transforming the customary rules of behaviour into definite and enacted rules of behaviour of the people.

The King, as the sovereign, started giving these his approval. Soon legislation emerged as the chief source of law and the legislature got recognition as the Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation has come to be the most potent, prolific and direct source of law. It has come to be recognized as the chief means for the formulation of the will of the State into binding rules.


Types of Legislation

  • Supreme Legislation: A Supreme or a Superior Legislation is that which proceeds from the sovereign power of the state. It can't be repealed, annulled or controlled by the other legislative authority.

  • Subordinate Legislation: it's that which proceeds from any authority aside from the sovereign power and is dependant for its continual existence and validity on some superior authority.

  • Delegated Legislation: This is often a kind of subordinate legislation. it's well-known that the most function of the chief is to enforce the law. just in case of Delegated Legislation, executive frames the provisions of law. this is often also referred to as executive legislation. the chief makes laws within the sort of orders, by laws etc. Sub-Delegation of Power to form laws is additionally a case in Indian system. In India, the facility to form subordinate legislation is typically derived from existing enabling acts. it's fundamental that the delegate on whom such power is conferred has got to act within the bounds of the enabling clause.

The main purpose of such a legislation is to supplant and to not supplement the law. Its main justification is that sometimes legislature doesn't foresee the difficulties which may come after enacting a law. Therefore, Delegated Legislation fills in those gaps that aren't seen while formulation of the enabling clause. Delegated Legislation gives flexibility to law and there's ample scope for adjustment within the light of experiences gained during the working of legislation.



JUDICIAL DECISIONS

Judicial precedent is the source of law where past decisions create law for judges to refer back to for guidance in future cases. Precedent is based upon the principle of stare decisis et non quieta movere, more commonly referred to as ‘stare decisis’, meaning to “stand by decided matters”. A binding precedent is where previous decisions must be followed. This can sometimes lead to unjust decisions, which I will address when talking about the advantages and disadvantages of binding precedent.


There are two rules that apply to the doctrine of judicial precedents:

  • The first rule says that a court which is lower in a hierarchy is completely bound by the decisions of courts which are above it.

  • The second rule states that higher courts are bound by their own decision in general in matters of related to precedence.

Types of Judicial Precedent

  • Declaratory and Original Precedents: As John William Salmon explained, a declaratory precedent is one where there is only application of an already existing rule in a legal matter. Whereas, an original precedent is one where a new law is created and applied in a legal matter. Original precedents are responsible for the creation of new laws.

  • Persuasive Precedents: A persuasive precedent is a type of precedent where the judge is not required to follow the precedent in a legal matter but will take the precedent heavily into consideration. So a persuasive precedent is not a direct source of law but is considered a historical source of law. In India, the decisions of one high court can act as persuasive precedents in other high courts.

  • Absolutely Authoritative Precedents: In an absolutely authoritative precedent, the judges have to compulsorily follow the judicial decision of the precedent in a case of law. In other words, even if the judge finds the precedent to be a wrong judgment, he is legally bound to give the same judicial decision. For e.g. – Every court in India is absolutely bound by decisions of courts superior to itself because of hierarchy.

  • Conditionally Authoritative Precedents: A conditionally authoritative precedent is one where generally the precedent is absolutely authoritative but in certain special circumstances, like a supreme court decision, it can be disregarded. The court can disregard the decision if it is a wrong decision, or goes against the law and reason.

Ratio decidendi

It is the Latin term meaning “the reason for the decision,” and refers to statements of the critical facts and law of the case. These are vital to the court’s decision itself. Obiter dicta are additional observations, remarks, and opinions on other issues made by the judge. These often explain the court’s rationale in coming to its decision and, while they may offer guidance in similar matters in the future, they are not binding. In reading a court’s decision, obiter dicta may be recognized by such words as “introduced by way of analogy,” or “by way of illustration.” Obiter dicta may be as short as a brief aside or a hypothetical example, or as long as a thorough discussion of relevant law. In either case, the additional information is given to provide context for the judicial opinion.


Obiter Dicta

When a written judicial opinion is made, it contains two elements: (1) ratio decidendi, and (2) obiter dicta. Obiter dicta are additional observations, remarks, and opinions on other issues made by the judge. These often explain the court’s rationale in coming to its decision and, while they may offer guidance in similar matters in the future, they are not binding.

In reading a court’s decision, obiter dicta may be recognized by such words as “introduced by way of analogy,” or “by way of illustration.” Obiter dicta may be as short as a brief aside or a hypothetical example, or as long as a thorough discussion of relevant law. In either case, the additional information is given to provide context for the judicial opinion.



RELIGION AND MORALITY

The relation between law, morality, and religion in the West has grown progressively more complex and fragmented over the last five hundred years. Historically, two paths emerged in Western thought regarding the relation of transcendent justice and positive law secured in the secular political order. The natural-law tradition followed Platonic philosophy by locating human cognition of true justice in a rational awareness of the divinely sanctioned order of the universe. The other tradition arose from conceptions of obedience to divine command. Such movements were more skeptical of human apprehension, reserving knowledge about justice to that received by revelation of the Divine Will.


The Hebraic tradition, typified by the Ten Commandments, was structured around the community's faithful response to the laws of the God who created and sustained them. The Christian apostle Paul claimed that only through fideistic awareness of God's activity can true justice be revealed, and that only absolute reliance on faith alone as the means of grace could deliver one from evil. For Augustine, the world of things below is for security only to restrain evil and the true focus of the believer's attention was the heavenly kingdom, known through faith alone. Human knowledge could not achieve any awareness of true justice.



EQUITY

Equity means fairness and sense of justice. It is also a source of Law. For deciding cases, the judges interpret and apply laws to the specific cases. But laws cannot fully fit in each case and these can be silent in some respects. In all such cases, the judges depend on equity and act in accordance with their sense of fair play and justice. Equity is used to provide relief to the aggrieved parties and such decisions perform the function of laying down rules for the future. As such equity acts as a source of law.


In essence, Equity can be described as a full-fledged right developed by the Chancery Court from the 15th century. These new rules of law made it possible to provide more flexible answers, sometimes more adapted to particular situations. These flexible answers were based on the equitable remedies which consisted of: injunctions, specific performance, promissory estoppel, rescission, and, last but not least, rectification. The injunction procedure, in particular, allows the judge to order a party to do a specific act or transaction or, on the contrary, not to do so. This remedy was seen in the case of Warner Bros. V Nelson. This case was about a film star, Bette Davis, who breached her contract with the Warner Brothers Pictures film company to work with another company. Warner Bros was awarded a negative injunction to prevent her from working with another company. The injunction procedure has the advantage of also acting on the future rather than simply sanctioning past behaviour. In 1615, tensions started emerging between common law and equity. These tensions were referred to the King for a decision, and that was when the Earl of Oxford Case came about. The Earl of Oxford Case ruled that where there was conflict between common law and equity, the latter, equity, should prevail.



SCIENTIFIC COMMENTARIES

The works of eminent jurists always include scientific commentaries on the Constitution and the laws of each state. These are used by the courts for determining the meaning of law. It helps the courts to interpret and apply laws.


The jurists not only discuss and explain the existing law but also suggest the future possible rules of behaviour. They also highlight the weaknesses of the existing laws as well as the ways to overcome these. Interpretations given by them help the judges to interpret and apply Laws to specific cases.


The works of jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, B.Pi. Rau, D.D. Basu and others have been always held in high esteem by the judges in India. Scientific commentaries jurists always help the development and evolution of law. Hence these also constitute a source of law. Thus, Law has several sources. However, in contemporary times law-making by the legislature constitutes the chief source of Law.


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