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Juris Module 1 Part 2

The document outlines the sources of law, including statutes, precedents, customs, and expert opinions, and classifies them into formal and material sources. It emphasizes the importance of customs in legal development and defines essential characteristics of valid customs and legislation. Additionally, it discusses the role of precedents in legal decision-making and the doctrines that guide judicial processes.

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dwipchandnani6
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2 views

Juris Module 1 Part 2

The document outlines the sources of law, including statutes, precedents, customs, and expert opinions, and classifies them into formal and material sources. It emphasizes the importance of customs in legal development and defines essential characteristics of valid customs and legislation. Additionally, it discusses the role of precedents in legal decision-making and the doctrines that guide judicial processes.

Uploaded by

dwipchandnani6
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© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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SOURCES OF

LAW
WHAT ARE SOURCES OF LAW?

 Prof. Fuller: Sources relates to the question “Where does


the judge obtain the rules by which to decide cases?”
 The sources of law can be listed as:
1. Statutes
2. Precedents
3. Customs
4. Opinion of experts, morality and equity
CLASSIFICATION OF SOURCES

 Salmond: Classified the sources into –


1. Formal Sources
2. Material Sources
 Keeton: Classified sources into –
1. Binding sources
2. Persuasive sources
CUSTOMS AS A SOURCE OF
LAW
A habitual course of conduct observed uniformly
and voluntarily by the people concerned.
 Not written and is established by long use and
consent of our ancestors.
 Existence of uniformity of conduct of all persons
under like circumstances.
DEFINITION OF CUSTOM

 Halsbury’s Laws of England: A custom is a


particular rule which has existed either
actually or presumptively, from time
immemorial and has obtained the force of
Law in particular locality, generally consistent
with the principles of common law.
KINDS OF CUSTOMS
 Customs without sanctions
 Customs with sanctions:
1. Legal Customs
a. General Customs
b. Local Customs
2. Conventional Customs
IMPORTANCE OF
CUSTOMS
1. It influences the development of legal institutions
2. It provides the law giver and codifier the material
out of which law can be fashioned
3. It is the reflection of the will of the people in an
uncontaminated form
4. It helps the court where no codified or judicial law
exists.
ESSENTIALS OF A VALID CUSTOM

 It must be reasonable
 The custom must be immemorial antiquity
 There must be continuity
 There must be peaceable enjoyment
 The custom must be certain and definite
ESSENTIALS OF A VALID CUSTOM

 The custom must be consistent with statute law


 The custom must be supported by public opinion
 The custom is valid if its observance is
compulsory
LEGISLATION
 Salmond: Legislation is that source of law which
consists in the declaration of legal rules by a
competent authority.
 Austin and Bentham: any form of law making.
 The declaration in codified form of rules of law by
a competent authority i.e. Parliament, Congress.
ADVANTAGES OF LEGISLATION

1. It is abrogative
2. It lays down law in advance
3. It is superior in form
4. It is more efficient
CLASSIFICATION OF LEGISLATION
 Direct/Supreme Legislation: it is which directly
proceeds from the supreme or sovereign power in the
state. It is Supreme because no authority has jurisdiction
to annul, modify or control it. For e.g. laws made by the
Parliament.
 Indirect/ Subordinate Legislation: it is enacted by any
other authority than the supreme authority and is
capable being controlled by the supreme authority.
Kinds of subordinate
legislation
 Autonomous Legislation
 Municipal Legislation
 Colonial Legislation
 Judicial Legislation
 Executive Legislation
OPERATION OF LEGISLATION AND
CONSTITUTIONALITY
 Statutes can be enforced either with prospective or with
retrospective effect.
 Under Article 13 of the Constitution of India if any
legislation, rules or regulation violate Part III of the
Constitution, it needs to be declared void by the apex
court.
 The presumption is always in favour of the
constitutionality of the enactment.
PRECEDENTS AS A SOURCE

 Precedent is judgment or decision of court of law cited


as an authority for deciding a similar state of fact in the
same manner or on the same principle or by analogy.
 Salmond: Precedent is a judicial decision which
contains in itself a principle. May include mere
reported case law to be cited or may include a case law
which has binding authority.
CLASSIFICATION OF
PRECEDENTS
 ORIGINAL: it is created and applied as a rule
of law for the first time. E.g. principles involved
in Donogue v. Stevenson.
 DECLARATORY: One which does not create
anything for the first time but merely declares an
already existing rule of law.
CLASSIFICATION OF PRECEDENTS

 AUTHORITATIVE: one which judges must follow


whether they approve of it or not. E.g. Decisions of
superior courts.
 PERSUASIVE: one which the judges are under no
obligation to follow but which they will take into
consideration and will attach great weight as it seems
to them to deserve. E. g. foreign judgments.
DOCTRINE OF STARE DECISIS

 Promotes uniformity and certainty of legal


administration.
 Shows respect for the opinion of the elders.
A settled question and principle should not be
disturbed.
 Individual caprice of the judge is controlled.
 Tends to place the law in a straight jacket.
LEGAL & JUDICIAL PROCESSES

 Declaratory Theory:

 Propounded by Sir William Blackstone

 Judges do not make law; they merely declare

 Role is to interpret and apply existing legal principles

rather than create new ones


 Law exists independently of judicial decisions
LEGAL & JUDICIAL PROCESSES

 Legislative Theory:
 Propounded by Justice Oliver Wendell Holmes Jr. &

Justice Benjamin Cardozo


 Judges actively create law, especially when dealing with

novel legal issues


 Judicial decisions can establish new legal principles,

modify existing laws, or even override previous


interpretations
HIERARCHY OF COURTS

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