sources of law.docx

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Sources of Law

It is very difficult, if not impossible, to give a precise definition of Law. Many renowned jurists have held

forth their own definitions of the term Law. Law, in the broadest and most comprehensive sense means

a set of rules and norms and a standard of pattern of behaviour to which every individual of the societyhas to conform to. Another often quoted, although not widely believed, definition of Law is of that given

by Austin according to which Law is the command of the sovereign.

Sources of law may be classified into Legal and Historical sources as well as Formal and Non-formal

sources. Legal sources are those which are recognized as such by law itself. Historical sources are those

sources lacking formal recognition by law. The legal sources of law are authoritative and are allowed by

the law courts as of right. The historical sources of law are unauthoritative. They influence more or less

extensively the course of legal development, but they speak with no authority. All rules of law have

historical sources but not all of them have legal sources.cpp111

By formal sources it is meant, sources of law which are available in an articulated textual formulation

embodied in an authoritative legal document. The chief examples of such formal sources are

Constitutions and Statutes, Executive orders, administrative regulations, Ordinances, Charters and by-

laws of autonomous or semi-

autonomous bodies and organizations, treaties and certain other agreements, and Judicial precedents.

On the other hand, Non-formal sources of law are legally significant materials and considerations, which

have not received an authoritative or at least articulated formulations and embodiment in a formalized

legal document. Non-formal sources of law may be Customs or Customary law, Standards of justice,

principles of reason and considerations of the nature of things (natura rerum), individual Equity publicpolicies, moral convictions and social trends.

Although a formalized, authoritative source of law provides a precise and clear-cut answer to a

legal problem, non-formal sources are also not unimportant and

should not be ignored. Where a formalized legal document reveals ambiguities and uncertainties

making alternative courses of interpretation possible, the non-formal sources should be resortedto for the purpose of arriving at a solution most conductive to reason and justice. When the

formal sources entirely fail to provide a rule of decision for a legal case, reliance on the non-

formal sources becomes mandatory.

FORMAL SOURCES OF LAW

LEGISLATION

Legislation has become the commonest source of new laws or of law reforms today. It is thesource of law which consists in the declaration of acts legal rules enforceable by a competent

authority. To legislate is to make new laws in any fashion. Legislation includes every expression


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of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature

does not confine its action to the making of rules, yet all its functions are included in the term

legislation.

Law that has its source in legislation may be most accurately termed a enacted law, all other

forms being distinguished as unenacted. The more familiar term used is, however, statute law.Blackstone and other writers use written and unwritten law to distinguish between legislation

and other sources of law.

Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds

from the supreme or sovereign power in the state, and which is therefore incapable of being

repealed, annulled or controlled by any other legislative authority. Subordinate legislation is thatwhich proceeds from any authority other than the sovereign power. Such legislation is

subordinate in that it can be repealed by, and must give way to, sovereign legislation. It may also

be of a derivative nature, the power to legislate having been delegated by the sovereign to the

subordinate.c

In Delegated legislation, power to bring an Act into operation; power to apply the Act; power to

exempt from or extend the scope of the Act; powers to make rules, regulations and bye-laws;power to impose tax etc. Besides delegation, there is sub-delegation also. In sub-delegation, the

agency to whom the power is delegated in the Act may further delegate it to another agency to

perform the duty.

Subordinate legislation may be delegated to the Executive. The essential function of the

executive is to conduct the administrative departments of the state. But it combines with thiscertain subordinate legislative powers which have been expressly delegated by the Parliament.

The statutes entrust to some executive department the duty of supplementing the statutory

provisions by the issue of more detailed regulations bearing on the matter.

Certain delegated legislative powers are also possessed by the judicature. The superior courts

have the power of making rules for the regulation of their own procedure.

The Municipal authorities are entrusted by the law with limited and subordinate powers of

establishing special law for the areas under their control. The enactments so authorised aretermed by-laws, and this form of legislation may be distinguished as municipal.

PRECEDENTS

It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority,

which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of

law. It is the reason or legal principle of the case, which is known as the ratio decidendi applied by the

Doctrine of stare decisis,which forms the law for the future. A decision is not binding because of its

conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case

Bachan Singh v State of Punjab.


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In Krishena Kumar v Union of India, the Supreme Court has observed, The Ratio Decidendiis the

underlying principle, namely, the general reasons or general grounds upon which the decision is based

on the test or abstract from the specific peculiarities of the particular case which gives rise to the

decision. The Ratio Decidendihas to be ascertained by an analysis by an analysis of the facts of the case

and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either

statutory or judge made, and a minor premise, consisting of the material facts of the case under

immediate consideration.

Obiter dictaon the other hand are observances of the court in the judgments passed by it. Although it is

of persuasive value, normally even an obiter dictumof the Supreme Court is expected to be obeyed and

followed.

Precedents may be classified into original and declaratory precedents. Original precedents are those

that create and apply anew rule or law, while declaratory precedents are those that merely declare or

apply the same pre-existing legal principle on a similar case. Both original as well as declaratory

precedents are equally important sources of law.

Precedents may also be classified into authoritative and persuasive precedents according to its binding

force on the lower courts. An authoritative precedent is one in which judges must follow it whether they

approve of it or not. A Persuasive precedent is one in which the judges are under no obligation to follow,

but which they will take into consideration, and to which they will attach as much weight as it seems to

them to deserve. In India, Article 141 of the Indian Constitution says that Law declared by the Supreme

Court is binding on all courts while the judgment of one High Court of a state has persuasive authority

over another High Court. Precedents are binding only from a higher court to a lower one while

persuasive authority exists only between collateral courts or courts of the same rank. One Division

Bench decision is binding on another Division Bench of the same court. Judgment of earlier Division

Bench of the High Court is binding in subsequent proceedings of the same case.

Authoritative precedents may further be classified into absolute and conditional. Absolutely

authoritative precedents are binding on lower courts irrespective of however erroneous it may be.

Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special

case its authority may lawfully be denied if the wrong and unsound nature of the law is proved.

When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it.

Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of

all authority, and becomes null and void and a new principle is authoritatively substituted for the old.

The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is

found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will

not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan.Where a

precedent is merely not followed, the result is the two stand side by side conflicting with each other.c

Such a situation can be solved only when a higher authority formally overrules one of the laws and

sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous


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decisions. It may overrule them either by expressly saying so, or impliedly by not following them in a

subsequent case. Judgments are not scriptural absolutes but relative reasoning.

The binding force of the precedent may be destroyed when it is overruled by a higher authority or if it is

in opposition to a pre-existing statute or an earlier decision of a superior court. A number of decisions

on Constitutional law have been abrogated by constitutional amendments such as the decisions inGolak

Nath v State of Punjab. The binding force of the precedent may also be weakened if a particular point of

law involved in the decision is not perceived by the court, which is known asprecedents sub silentiocpp153

and does not have any precedental value.

The value of the doctrine of precedent has been much debated.cpp133

Judges have been criticised on the

grounds that precedents give them the power to transform from law-implementors to law-makers.

However, it has also been argued in favour of Precedents that the practice is necessary to secure the

certainty of the law.cpp

At a time of commercial development and constitutional jurisprudence, it is the

duty of the superior courts to be cautious in laying down precedents keeping in mind future

developments.

TREATIES

A treaty is an agreement entered into by countries, nations, or other legal persons recognized in

international law. If only two nations or other international persons are the contracting parties, the

treaty is called bilateral; if more than two are involved, it is usually called multilateral. The typical

legislature of a modern nation-state may pass laws which a minority of the legislators are unwilling to

approve, and these laws will bind everybody subject to the jurisdiction of the legislating body. Norms

imposed by multilateral treaties, on the other hand, ordinarily bind only those countries which have

manifested their approval by signing the treaty or otherwise adhering to it.

NON-FORMAL SOURCES OF LAW

CUSTOM

Custom has an important place as a source of law. It is the most important non-formal source of law.

Custom exists as law in every country, though it everywhere tends to lose its importance relatively to

other kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of existence

and general acceptance of which is proved by their customary observance, is no doubt the oldest formof law making. It marks the transition between morality and law.

Custom can be described as the established patterns of behavior that can be objectively verified within a

particular social setting.

For a custom to be valid and operative as a source of law, it must conform to certain conditions and

requirements. The chief requisites of a valid custom are:-


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i) Reasonableness- The most important requisite that a custom has to fulfill so as to become a valid

source of law is that it has to be reasonable. For example, the practice of Sati in India was banned by law

in spite of being a custom of the land. However, it also does not mean that the courts of law have the

liberty to disregard a custom whenever they are not satisfied of the absolute rectitude and wisdom of it,

for that would mean to deprive the custom of all its authority. To deprive a custom of its legality, it has

to be so seriously repugnant to law, that to enforce it would cause more harm than good to the public.

ii) Immemorial Antiquity- In orderto become legally enforceable, a custom has to be followed from

time immemorial. However, General customs, or customs of the realm which prevail through the

whole territory does not have such a requirement. It is the Local customs, or customs which are limited

to a special part of the realm, which, in order to become law, need to prove the condition of having

continued for a long time or time immemorial.

i) Opinio Necessitatis- Another requirement for a custom to be a valid source of law is that there must

be an ethical conviction on the part of the people following the custom that it is obligatory and not

merely optional. Mere custom itself, as such, does not have any legal authority. It becomes legally

effective only because it is the expression of an underlying principle of right approved by its

practitioners.

ii) Conformity with Statute law-A custom must be pleaded and proved to become law.

All custom which has the force of law is of two kinds, which are essentially distinct in theirmode of operation. These two kinds of custom may be conveniently distinguished as legal and

conventional. A legal custom is one whose legal authority is absolute, while a conventional

custom is one whose authority is conditional on its acceptance and incorporation in agreements

between parties to be bound by it.

The term law includes custom and usages having the force of law.T he Indian Constitution provides

for customs and usages as sources of law in Article 13 (3) (b). In Dasharatha Rama Rao v State of Andhra

Pradesh, Das, J., said Even if there was a custom which has been recognized by law.that custom must

yield to a fundamental right. But personal laws, such as Hindu Law, Mohammedan Law, are not

included within the expression which has been expounded by the courts.

STANDARDS OF JUSTICE

Standard of Justice is used in cases where there is no statutory provision for a particular case in which

the judge has to depend on his own common sense or standard of justice or borrow the relevant

legislations from other countries so that no injustice is done to any party concerned in the case. There

are a number of judicial decisions where the courts, without any special authorization by the positive

law to decide the unprovided case according to considerations of equity have granted relief to novel

situations on grounds of natural justice and reason.


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In the areas of conflict of laws, general considerations of fairness and justice have played a particularly

important part in developing this particular branch of law. Courts have also resorted to considerations of

justice in interpreting vague and ambiguous clauses in constitutional and statutory documents.

The notion of justice has been used rather extensively by the judiciary and as played a prominent role in

the decision of controversies. It is particularly in situations where the scales are heavily weighed on one

side and where a strong need for relief is apparent that the courts are willing to allow new claims or

defences on grounds of essential justice and equity.dpp354

EQUITY

Equity in its technical and scientific legal sense, means neither natural justice, nor even all that portion

of natural justice which is susceptible of being judicially enforced. It has, when employed in the language

of English Law, a precise, definite, and limited significance and is used to denote a system of justice in a

particular court. The lay notion of equity is that its purpose is to administer justice in the particular case

without regard to fixed or general rules, and indeed to set aside rules of law when essential to do so to

the ends of natural justice.

CONCLUSION

It is difficult to define law, but it is easy to define about law. Sources of law are an important

facet to law as it helps in giving a definition to law.

If a study is made of the legal systems in the world in modern times, it would be found that most

of the law is made by legislation. In some countries, especially in Common Law countries, the

decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a

very important parting the framing of laws, and the rights and liabilities of individuals aredetermined on the basis of customs, especially upon matters on which there are no pre-existent

legislation, and no precedent to cover the matter. Sometimes customs are abrogated by the

legislation, and at other times are confirmed by their decisions.

The judges, in passing their judgment, take help from numerous other sources of law to, juristic

or authoritative writings, foreign decisions (Standard of Justice), moral considerations and publicopinion. The law generally comes from these sources. Sources of law are the tools, methods an

techniques that are availed by the legal system in order to carry out its social goals and

objectives, which is to provide justice to the people, most effectively and adequately. Sources of

law concerns itself with the methodology, modes of reasoning and the interpretation of law, andnot with the problems, principles and rules of specified law.

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