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2 views

Mod 8 lm

Uploaded by

Chavi Marwadi
Copyright
© © All Rights Reserved
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
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Sources of law are the origins of laws, the binding rules that enable any state to

govern its territory. They are the authorities from which laws derive their force
and validity.

Primary Sources of Law


1.Legislation: Laws enacted by a legislative body, such as a parliament or
congress. This is the most powerful source of law and can override both custom
and precedent.
2.Precedent (Case Law): Legal principles established by courts in their decisions.
The doctrine of stare decisis requires courts to follow the decisions of higher
courts within the same jurisdiction.
3.Custom: Long-established practices followed by a community. While less
significant in modern legal systems, they can still influence legal decisions,
especially in areas where written laws are absent or unclear.

Secondary Sources of Law


Secondary sources of law are not direct sources of law but provide interpretation
and analysis of primary sources. Examples include:
1.Legal Textbooks: Books written by legal scholars that explain legal concepts
and principles.
2.Law Reviews and Journals: Academic publications that contain articles written
by legal experts on various legal topics.
3.Treatises: Comprehensive works that delve into specific areas of law.
It's important to note that the relative importance of these sources can vary
depending on the specific legal system. For example, common law systems, like
those in the United States and the United Kingdom, rely heavily on precedent,
while civil law systems, like those in France and Germany, primarily rely on
legislation.

The body of laws that govern a society is derived from various


sources. Here are three primary sources:
1. Custom
 Definition: Customs are long-established practices that
have been followed by a community for a significant
period. They are unwritten rules that have evolved
organically over time.
 Characteristics of a Valid Custom:
Immemorial Antiquity: The custom must have been practiced
for a very long time, beyond living memory.
Continuous Usage: The custom must have been followed
consistently and uninterruptedly.
Certainty: The custom must be definite and clear, without any
ambiguity.
Reasonableness: The custom must be reasonable and not
against public policy or morality.
Universality: The custom must be followed by a significant
portion of the community.
 Role of Custom in Modern Legal Systems: While customs
were once a primary source of law, their significance has
diminished in modern legal systems. However, they still
play a role, especially in areas where written laws are
absent or unclear. For instance, customary laws might
govern property rights, inheritance, and marriage in
certain communities.
2. Precedent (Case Law)

 Definition: Precedent, or case law, refers to the legal


principles established by courts in their decisions. When a
court decides a case, it creates a precedent that can be
followed in future cases with similar facts.
Doctrine of Stare Decisis: This doctrine requires courts to follow
the decisions of higher courts within the same jurisdiction. It
ensures consistency and predictability in the application of law.
 Types of Precedent:
Binding Precedent: Decisions of higher courts are binding on
lower courts within the same jurisdiction.
Persuasive Precedent: Decisions of courts in other jurisdictions
or lower courts can be persuasive but not binding.
Ratio Decidendi: This is the legal principle or rule of law that is
essential to the decision of a case. It forms the binding part of
the precedent.
Obiter Dictum: These are remarks made by a judge that are not
essential to the decision of the case. While not binding, they
can be persuasive.

3. Legislation
 Definition: Legislation refers to laws enacted by a
legislative body, such as a parliament or congress. It is the
most powerful source of law, as it can override both
custom and precedent.
 Types of Legislation:
Primary Legislation: Laws enacted by the supreme legislative
body, such as Acts of Parliament or federal statutes.
Secondary Legislation: Laws made by delegated authorities,
such as regulations or bylaws.
Legislative Process: The process of creating legislation typically
involves:
Introduction of a Bill: A draft law is introduced in the legislature.
Debate and Committee Stage: The bill is debated and
scrutinized by committees.
Passage of the Bill: If approved, the bill is passed by both
houses of the legislature.
Assent: The bill is signed into law by the head of state.
These three sources of law interact and influence each other in
complex ways. While legislation is the most powerful,
precedent and custom continue to play important roles in
shaping the legal landscape.

Interplay Between Sources of Law:


These three sources of law often interact and influence each
other. For example:
1. Legislation may codify existing customary laws.
2. Courts may interpret legislation and create new
precedents.
3. Customary laws may inform judicial decisions, particularly
in areas where statutory law is unclear or absent.
By understanding the nuances of these sources of law, we can
better appreciate the complexities of the legal system and its
impact on society.

In Conclusion:
Understanding these sources of law is crucial for anyone
seeking to navigate the legal system. By recognizing the
interplay between custom, precedent, and legislation,
individuals can better appreciate the complexities of law and its
impact on society.

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