Jurisprudence – Discuss sources of law &

Discuss Common law in light of precedents

ABSTRACT:
“Every civilisation consists of law and order and in order to understand the law, one has to
study about where it came from or the origin of the law, in other words, sources of law. There
is no single definition to what are the sources of law. The general meaning of ‘source’ is
‘origin’. The expression “Sources of law” may mean the origin from which rules of human
conduct came into existence and derived its legal force or binding character. Sources of law
have been interpreted in many ways by different jurists due to the difference of opinion
amongst them.
I. CLASSIFICATION OF SOURCES: Salmond, an English Jurist has divided the sources
of law into two major categories 3 :
I.I Formal Sources: These are the sources from which law derives its force and validity. For
example, a law enacted by the state or the sovereign.
I.II Material Sources: These refer to the various processes which result in the evolution of
the materials which are the constituents of laws. In simpler words, it is all about the matter
from which the law has been derived and not the validity.
Material sources are further divided into two parts:
I.II.I Legal: These are recognised by the law itself as authoritative. They operate
immediately, i.e, they are the immediate sources of law. The law which comes from the legal
source is divided into three categories: a. Customary Law (Customs), b. Case Laws
(Precedents), c. Statute Law (Legislations), I
.II.II Historical: These are unauthoritative, i.e., they have no binding force and are not
recognised by the law. These operate indirectly or mediately. They may become legal if they
are recognised by law as such or when they are incorporated in law. For example, Jurists’
writings, literary work and Foreign decisions.
II. CRITICISM OF SALMOND’S CLASSIFICATION: The classification of Sources of
Law done by Salmond has been criticized by many Jurists time and again. Allen, criticised
Salmond for not throwing much light on the historical sources of law. According to Allen,
Historical sources of law carry a lot of weight and should be given more importance. Keeton,
too has criticized the classification done by Salmond. He says that, “in modern times, the
only formal source of law is the state, but the state is an organization enforcing law”.
Therefore, according to Keeton, technically, the state cannot be considered as a source of law.
III. SOURCES OF LAW:
III.I FORMAL SOURCES OF LAW: Varied sources have been recognised as a valid
source of law since the establishment of society and these sources have been classified into
formal and informal sources of law. Formal Sources of Law has laid down three valid
sources, from where the law derived is entrusted upon and which encompasses validity.
III.I.I Will of the State: State is the primary trusted authority when it comes to authenticated
and verified laws. They are seen as a valid authority as they are concerned with the
governance of the nation. The main aim of the laws formulated by the State is to ensure peace
and tranquillity in the nation and it is not driven by any ill motive which makes those laws
more trustable. Though the will of the nation might have a different outcome in the different
political structure like the nation where dictatorship prevails, the statutes formulated might
not be in the favour of the people whereas in the democratic nation, the will of the state is
mostly drawn towards public's welfare. In India, 7th Schedule comprises two lists stating the
responsibilities of Union government and State Government in the Union List and State List
respectively. Accordingly, both the governments can make laws on the subjects allocated
under their respective lists.
III.I.II Will of the People: Laws are meant to fulfil the requisite demand of the people of the
nation. Whenever new impediments or problems fall before people which need urgent
redressal then the state after valid ratification can approve such demand into law. Will of the
people as a source of law is mainly dominant in a democratic nation where the voice of
people is the prime consideration and of optimum concern of the law-making authority. Thus,
will of the people always compel the authorities of the state to formulate laws in their favour
and people often support those governments who are ready to transform people’s will into
statute. For example, Women at the workplace were facing immense sexual exploitation and
they showed their angst through various platforms and eventually government recognised the
people’s concern and formulated Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013.
III.I.III Judicial Decision of the Court or the Precedents: There is no second thought to the
fact that Judiciary is one of the strongest pillars on whom we can depend upon to seek laws.
Judicial Decision or Precedents are those judgements of the courts which have taken the
shape of laws over a period of time. Unless and until any concrete evidence or facts are
presented against such precedent set up by the court, the decision will be treated as an
established law forever. It is also important to understand the concept of Ratio-decidendi
which means the reason for the decision, Judiciary lays down the reason behind its judgement
and it answers all the concerns which arise, making the law more authentic. Judiciary also
play a very important role in assisting the state to formulate laws and such laws turn out to be
more definite and reliable. The above-mentioned sources of law are formal sources who
contribute in formulating a strong and concrete legal system.
III.II MATERIAL SOURCES OF LAW: The material sources of law are those which
gives the matter or content of a principle of law. As the word material suggests, these sources
deal with the subject matter and content of the law. In simple words, the material sources of
law tell us what the law contains. It is divided into two categories:
III.II.I Legal Material Sources: (Authoritative Law): These are mainly divided into 3
categories:
III.II.I.I Customs: (Customary Law): It is said that customs are the most important source
of law and in some cases, it is said that it is the sole source of law. Custom is the most ancient
of all sources of law. It held the most important place in the past though with changing times
it is diminishing and legislations and judicial precedents are gaining more importance. A
custom is a habitual course of conduct observed uniformly and voluntarily by the society. It is
said that no custom shall have the force of law if it violates the fundamental rights. There are
different and divergent views on the origin of customs.
III.II.I.I.I Importance of Customs: i. It provides the material out of which the law can be
fashioned because it usually takes a great deal of intellectual effort to create a completely
new law. ii. It is easier to secure respect for law which is based on customs.
III.II.I.I.II Classification of Customs: Customs in their wider sense can be classified into two
classes:
III.II.I.I.II.I Customs without sanction: These are the non-obligatory customs. They are
observed due to pressure of the public. Austin termed these are “positive morality”.
III.II.I.I.II.II Customs having sanction: These are obligatory and are enforced by the state.
They may be legal or conventional. Legal are the ones which operate as a binding rule of law
whereas the conventional customs are those which govern the parties to an agreement.
III.II.I.II Precedents: There is a judicial organ in every developed legal system to adjudicate
the rights and obligations of the citizens. A number of jurists have defined the term
precedents in their own way. Gray defined precedents as, “A precedent covers everything
said or done, which furnishes a rule for subsequent practice’.9 A judicial precedent is
considered to be one of the most important sources of law. It means a previous instance or a
case that is either binding or persuasive for a court when deciding a subsequent case with
similar facts. The principle by which the judges are bound to precedence is called Stare
Decisis which means to stand by the decision. A binding precedent is where previous
decisions must be followed. It is created when the facts of a latter case are sufficiently similar
to the facts of a former case.
III.II.I.II.I Importance of Precedents: Precedents have been an important source of law since
ancient times. Precedents make it easier for the judges to decide the case as per the previously
given judgments on the similar cases.
III.II.I.II.II Doctrine of Precedents: The doctrine of precedents is often considered to be a
very rigid doctrine within the court hierarchy, every court is bound to the previously made
decisions by the courts higher than them. Secondly, to a certain extent, the higher courts are
bound by their own decisions.
III.II.I.II.III The operation of the doctrine: The Supreme Court: In India, at the very top of the
hierarchy is the Supreme Court followed by the High Courts and the District courts at the
lowest level. Supreme Court is the highest court in India, its decision is binding on all the
courts within the territory of India. The High Courts: Decisions given by the High Courts are
binding on all the District Courts within its jurisdiction. As regards High Courts, they are to a
certain extent bound by their own decisions. The Apex Court, i.e., The Supreme Court, in the
famous cases of Kesavananda Bharati vs. State of Kerala , and I.C. Golaknath and Ors.
vs. State of Punjab and Anrs., proved that it is not bound by its own decisions. The facts of
these two cases were similar but the judgment was totally opposite. In Pillani Investment
Corporation vs. T.I Officer, Calcutta, it was shown that the earlier judgment of the
Supreme court is erroneous or that any vital point was not considered, the Supreme court will
decline to review its earlier judgment.
 III.II.I.II.IV Doctrine of ‘Stare Decisis’: i. “To stand by decisions and not to disturb settled
matters.’ ii. Based on public policy and expediency, i.e, fast decision making if based on
previous judgments. iii. It secures the certainty and predictability. iv. The rule of stare decisis
is not an inflexible rule. v. The decision of following it or departing is within the discretion of
the Supreme Court.
In the case of Sangham Tape Co. vs. Hans Raj, it was held that a fact situation obtaining in
one case cannot be said to be a precedent for another case. Application of the Doctrine of
precedents: The authority of a decision as a precedent lies in its ratio decidendi.
III.II.I.II.V Ratio Decidendi: • It is the reason behind the decision.
• The decision of the court is based on: A. What does the case decide between the parties? B.
What principle of rule of law does it lay down?
• In delivering judgments, the judge gives reasons behind his judgment, and it is these reasons
which may be important as precedents.
III.II.I.II.VI Obiter Dictum/Dicta:
• These are the remarks of a judge which are not necessary to reaching a decision, but are
made as comments or illustrations.
• They are usually incidental and are not binding persuasive authority.
• It is the general observation of the judge and do not have a binding authority.
In modern times, legislation is the most potent source of law.
• It lays down the rules by the legislature which the state recognises as law.
• It has the force and authority of the state.
III.II.I.III Legislation: The word Legislation has been derived from the two Latin words
“legis” which means law and “Latum” which means making and together they mean law
making. Therefore, the word Legislation means the process of law making. Legislation is that
source of law which consists in the declaration of legal rules by a competent authority.
• Legislation mostly becomes the exclusive source of law with the advancing citation. The
power of the Supreme Legislation of Indian parliament is strictly defined in the constitution.
According to Austin, legislation includes activities which result into law making or inserting
new provisions in the existing law. Thus, a law without a legislative act is impossible.
The power of legislation vests in the sovereign authority of a political community.
III.II.I.III.I Types of Legislation: Legislations are of two major types; direct or indirect. A
legislation is direct when the sovereign authority itself makes the law, as the law as the law
made by the Indian Parliament and it is indirect when the powers to make laws are delegated
by the sovereign authority to any other authority. The direct legislation is known as the
Supreme legislation whereas indirect legislation is known as the Subordinate legislation.
III.II.I.III.I.I Supreme legislation: Legislation is supreme when it proceeds from the
sovereign and is incapable of being annulled or controlled by any other legislative but the
sovereign is bound by the law too. It is the law which decides the identity and the
composition of the sovereign. It also tells the procedure according to which the sovereign is
to legislate. Also, the areas in which the sovereign is to legislate.
III.II.I.III.I.II Subordinate legislation: Subordinate legislation proceeds from any other
authority other than the sovereign power. It is dependant for its continued existence and
validity on some supreme authority. In India, the parliament is sovereign but not supreme
although it possesses the power of supreme legislation. In India, the constitution is considered
to be the supreme. Hence, the parliament is subject to constitutional limitations. Subordinate
legislation is enacted under the delegated authority of the sovereign.
III.II.I.III.I.III Delegated Legislation: It means legislation made by bodies other than the
legislature. The term ‘delegated legislation’ is commonly used in two senses:
1) It means the exercise of rulemaking power by the executive under the authority delegated
to it by the legislature.
2) It means the output of the exercise of that power in the form of rules, regulations, byelaws
and orders etc.
III.II.II Historical Material Sources: Historical or Informal sources of law are considered
questionable as till date it hasn’t got any formalized recognition by the law. These are mostly
implied in an indirect and tortuous manner. They impact pretty much broadly the course of
lawful development, yet they talk with no power.
III.II.II.I Equity: Equity is a principle which shall govern each and every law and eventually
becomes one of the primary sources of law. It is one of the principles on which the natural
laws have been based upon and it also lay down the requisites before law making authorities
before passing any law. Equity governs the principle where no one would be treated in a
discriminating manner and the law passed on the lines of equity must pass the criteria of
equality, Justice and good conscience.
In the event that there is a contention among value and law, it is the law which must win.
Equity can enhance the law when there is a hole in it, otherwise not.
III.II.II.II Conventions: We often come across various international submits being organized
in different countries on varied topics. In these submits countries often sign-up certain
Conventions, contractual relations, and treaties which are bilateral or multilateral in nature.
The documents which are signed upon creates obligation over the contracting parties to
follow the rules laid down in such document. These conventions often lead to formulation of
conventional law. For example- If a convention is ratified by India its contents and terms
become binding on the Indian Legal System.
CONCLUSION:
The law generally comes from all the sources which are explained above. Legislation,
Precedents and Customs may be regarded as the binding sources, and the rest as persuasive.
We have discussed the sources of law and the classification of sources interpreted by
different jurists and in different case laws.