Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040

(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)

CLASS & SEMESTER: B.A.LL.B I SEMESTER

NAME OF THE SUBJECT: LEGAL METHOD
SUBJECT CODE: LLB- 101
UNIT II
TOPIC: SOURCES OF LAW

FACULTY NAME : Ms. Kriti Sharma

Assistant Professor, SoL
 SOURCES OF LAW

1. Custom

2. Precedent

3. Legislations

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 CUSTOM

• Custom has been one of the oldest sources of law. In ancient times, social
relations gave rise to several usages, traditions and customs. These were
used to settle and decide disputes among the people. Customs were practiced
habitually and violations of customs were disapproved and punished by the
society. Initially social institutions began working on the basis of several
accepted customs.

• Gradually, the State emerged as the organized political institution of the

people having the responsibility to maintain peace, law and order; naturally,
it also began acting by making and enforcing rules based upon customs and
traditions. In fact, most of the laws had their birth when the State began
converting the customs into authoritative and binding rules. Custom has
been indeed a rich source of Law.

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
• Custom and usage is the earliest sources of law. When there was no state, the
people faced problem. They reacted to them in different ways. Slowly and
gradually there emerged a kind of uniformity in these reactions. These were
called customs and traditions. For example, there are still certain customs,
which are observed by the people so for as their marriage, family relations,
and inheritance are concerned. After the emergence of the state such customs
and traditions were formally adopted and these were given the name of laws.
These laws which are derived from customs are called customary laws. The
best example of such law is the English Common Law.

• Custom in law is the established pattern of behavior that can be objectively

verified within a particular social setting. A claim can be carried out in defense
of "what has always been done and accepted by law." Related is the idea of
prescription; a right enjoyed through long custom rather than positive law.
Customary law (also, consuetudinary or unofficial law) exists where: a
certain legal practice is observed and the relevant actors consider it to be law
(opinio juris).

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 ESSENTIALS OF CUSTOM

1. Antiquity
2. Continunance
3. Peaceful enjoyment
4. Obligatory Force
5. Certainty
6. Consistency
7. Reasonableness
8. Conformity with statute Law

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 CLASSIFICATION OF CUSTOMS

The customs in their wider sense may be divided into two classes.

1. Customs without sanction.

2. Custom having sanction.

Custom having sanction are further divided into two parts namely, legal and
Conventional Customs

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 Legislation It is the prime source of law. and consists in the declaration of
legal rules by a competent authority. Legislation can have many purposes: to
regulate, to authorize, to enable, to proscribe, to provide funds, to sanction, to
grant, to declare or to restrict.

 A parliamentary legislature frames new laws, such as Acts of Parliament and

amends or repeals old laws. The legislature may delegate law-making powers
to lower bodies.

 In the UK such delegated legislation includes Statutory Instruments, Orders in

Council, & Bye-laws. Delegated legislation may be open to challenge for
irregularity of process; and the legislature usually has the right to withdraw
delegated powers if it sees fit.

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 Most legislatures have their powers restricted by the nation's Constitution, and
Montesquieu’s theory of the separation of powers typically restricts a
legislature's powers to legislation. Although the legislature has the power to
legislate.

 It is the courts who have the power to interpret statutes. treaties and
regulations. Similarly, although parliaments have the power to legislate.

 It is usually the executive[ who decides on the legislative programme. The

procedure is usually that a bill is introduced to Parliament, and after the
required number of readings, committee stages and amendments, the bill
gains approval and becomes an Act.

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 Legislation is one of the most important instruments of government in
organising society and protecting citizens. It determines amongst others the
rights and responsibilities of individuals and authorities to whom the
legislation applies.

 The common meaning of Legislation is the making of the law.

 It may be defined as the promulgation of legal rules by any law made by any
source, such as precedents

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 DIFFERENCE BETWEEN
LEGISLATION AND CUSTOM

1. The existence and authority of legislation is dejure whereas the existence of

custom is de facto.
2. Legislation is considered to be superior and more authoritative source of law
than customs.
3. Generally customs deals with the relationship between man and man.
Legislation always bring into picture, the state.
4. The authority of legislation lies in express will of the state. Customs are
generally based on the will of the people. They have only an implied authority
of the state.
5. Legislation is an advanced method of legal development and is characteristic
mark of mature legal systems. Customs have their way mainly in a primitive
society.

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 PRECEDENT

 In common law legal systems a precedent, or authority, is a principle or

rule established in a previous legal case that is either binding on or
persuasive for a court or other tribunal when deciding subsequent cases with
similar issues or facts Common law legal systems place great value on
deciding cases according to consistent principled rules so that similar facts
will yield similar and predictable outcomes, and observance of precedent is
the mechanism by which that goal is attained.

 The principle by which judges are bound to precedents is known as stare

decisis.

 Black'’s Law Dictionary defines "precedent" as a "rule of law established for

the first time by a court for a particular type of case and thereafter referred to
in deciding similar cases."

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 Common law precedent is a third kind of law, on equal footing with statutory
law (statutes and codes enacted by legislative bodies), and delegated
legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations
promulgated by exective wing of the state.

 Stare decisis is a legal principle by which judges are obligated to respect the
precedent established by prior decisions. The words originate from the
phrasing of the principle in the Latin maxim Stare decisis et non quieta
movere: "to stand by decisions and not disturb the undisturbed".

 In a legal context, this means that courts should abide by precedent and not
disturb settled matters. The principle can be divided into two components.

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 A decision made by a superior court, or by the same court in an earlier
decision, is binding precedent that the court itself and all its inferior courts
must follow.

 A court may overturn its own precedent, but should do so only if there is a
strong reason to do so, and even in that case, should be guided by principles
from superior, lateral and inferior courts.

 The second principle, regarding persuasive precedent reflects the broad

precedent guidance a court may draw upon in reaching all of its decisions..

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)
 THANK YOU

Chanderprabhu Jain College of Higher Studies & School of Law

Plot No. OCF, Sector A-8, Narela, New Delhi – 110040
(Affiliated to Guru Gobind Singh Indraprastha University and Approved by Govt of NCT of Delhi & Bar Council of India)