Module I Jurisprudence

* It is difficult to give a universal and uniform definition of jurisprudence. Every jurist has his own notion of the
subject-matter and the proper limits of jurisprudence depend upon his ideology and the nature of the society.

*The word ‘Jurisprudence’ has been derived from the Latin word ‘Jurisprudentia=Juris(Law)+Prudentia(Knowledge,
Skill, Wisdom & Philosophy)=Knowledge of Law or Philosophy of Law or Science of Law.
Knowledge
• Knowledge can be acquired from two windows=Reason + Experience.
It means Knowledge=Reason + Experience.
• The traditional definition of Knowledge=knowledge is a justified true
belief.
• Scientific Study of things is based on observation or systematic study
with the help of senses. Whole study of Science or Law or any
discipline are based on Hypothesis, Deduction, Induction, Experiment,
Observation and Conclusion.
 Thinking
• Idea or thinking = Apriori Ideas( Before perception or Innate Ideas)+
Aposteriori Ideas( After perception). Whole knowledge of the
universe generally based these two ideas.
• Whatever ideas we perceive that can always be a fact. Fact may be
visible or invisible, tangible or intangible, concrete or imaginary.
• The whole concept of jurisprudence and its scope or limits must be
either in forms of concrete facts or in imaginary facts.
• Jurisprudence must have some rationale and non-rationale base.
Subject Matter or Scope of
Jurisprudence
• There is no unanimity of opinion regarding the Scope of Jurisprudence.
• The Scope includes all concepts of human order and human conduct in a State and Society.
• The Contents and subject matters of jurisprudence are as follows:
• Sources of Law( Custom, Legislation, Judicial Precedent, and Equity) ,
• Legal Concepts(Rights, Duties, Property, Ownership, Possession, Legal personality,
Obligation, Acts of Negligence, Liability etc.).
• Legal Theory( It is concerned with law as it exists and function in the society. It also related
with the thoughts of Sociological and Realist Schools of the Jurisprudence. Legal Theory
seeks to co-relate law with other discipline(Religion, Philosophy, ethics, politics etc,) and
pursue its study in wider socio-legal perspective. The term Legal Theory was coined by W
Freidman ( American Jurist) Legal theory has philosophical, ideological and sociological
implications. It mainly concerns the evaluative study of law in terms of its ends, purposes,
needs, and goals of society which law ought to promote, protect and serve.
What are the views of Different
Jurists about Jurisprudence
• It is believed that the study of Jurisprudence begins in Greek because of Natural Law School.
• It is also believed that the first great jurist of Roman, Ulpian defined Jurisprudence as
“Knowledge of things divine and human, the science of just and unjust.”
• Paulos, another Roman jurist said ‘Law is not to be deduced from the Rule, but the Rule from The
Law.
• Austin, Jurisprudence is the study of positive law means law as it is.
• Holland, Jurisprudence is the formal science of positive law.
• Salmond, It is the Science of the first principle of the Civil Law.
• C K Allen, the scientific synthesis of the essential principles of law.
• Julius Stone, it is Lawyers extraversion. It is the lawyer's examination of the percepts, ideals and
techniques of the law in the light derived from present knowledge in disciplines other than law.
• A lawyer who has not studied economic, sociology, is very apt to become a public enemy. The
mere lawyer is a mere blockhead(David Paul Brown). For a lawyer it is essential to possess
knowledge of important social disciplines including current ethos of public policy and social
expectations.
• In India Former CJI Gajendragadkar, and some Judges of the SC like Krishna Iyer, P N
Bhagwati,Desai, Mathews have specially interpreted law in the spirit of what Professor
Stone termed as ‘lawyers extraversion’. These Judges relegated the ivory tower or ascetic
approach insulated of social environment and treated law as an instrument of social
change.. As medicine cannot be effective and curative without a proper medical diagnosis,
prognosis medical history, heredity of the patient along with other pathological,
physiological and anatomical tests in the same way law cannot be effective and useful to
society without a proper perception of social problems , issues and social disciplines
which give law social respectability and general recognition as an instrument of social
control, change and progress.
• Conclusion: The definition of Jurisprudence cannot be limited to one aspect of a social
behavior. It requires one to know the action and reaction of economics,history,psychology,
sociology, ethics, morality, metaphysics and philosophy upon law as a systems of discipline
for regulating conduct of human beings in an organized society.
 Significance and Utility of
Jurisprudence
• Jurisprudence occupies a prominent place in the academic discipline of Law. Any subject
worth its name when must entail instilling in the student a capacity for critical thinking.
The thinking may grow into research, which can produce repercussions in the legal,
political and social thought.
• It is sometimes said that jurisprudence has no practical utility as it is an abstract and
theoretical subject.
• Jurisprudence is often said to be the eye of law and grammar of law.
• It throws light on the basic ideas and fundamental principles of law.
• It helps legislators by providing them a precise and unambiguous terminology. It relieves
them of the botheration of defining again and again in each Act certain expression such as
duty, right, possession, ownership, liability, negligence etc.
• It helps the Judges and the lawyers in ascertaining the true meanings of the laws passed
by the Legislature by providing the rules of interpretation.
Continued
• The study of jurisprudence enlightens students and helps them in adjusting themselves in society
without causing injuries to the interest of other citizens.
• Dr M J Sethna said, the values of jurisprudence lies in examining the consequences of law and its
administration for the establishment of better super structure of laws.
• Jurisprudence can teach the people to look sideways and surroundings and realize that answer to
new legal problems must be found by a consideration of the present social needs and not in the
wisdom of past.
• The study of Jurisprudence can help to combat the lawyers occupational view of formalism which
leads to excessive concentration on legal rules for their own sake and disregard of the social
function of law. Law is to be put in its proper context by considering the needs of the society.
• It has a valuable role to play in law reforms. It provides clarity, intellectual order, structure and
standards of rational and moral criticism and evaluation. It gives insight into the relevant
questions to ask when laws are being discussed or law reforms are being proposed. Passion may
dominate discussion on the merits or demerits of particular laws. Jurisprudence can help to
introduce an element of reason into such discussion.
Continued
• Jurisprudence is a subject which has practical relevance and
importance. Even while considering law as a practical discipline ,we
must not forget that its practicality is based on the adequacy of
theory upon which it rests. Jurisprudence gives process of legal
reasoning by which maximum questions relating to law and society
are answered by the Judges, Lawyers, teachers and students of law.
• What is Procedure established by law?
• What is the ‘rarest of the rare cases’in which capital punishment may
be given? Law students must realise the great potential for interaction
between legal philosophy and legal practice
continued
• Conclusion: it may be unreasonable to claim that without studying
jurisprudence, one cannot understand law. However , it may
reasonably be claimed that a much fuller appreciation of law is
conferred through the study of jurisprudence.
• We can speak and write without knowing the grammar of a particular
language, but we cannot be a good writer or effective communicator.
• Jurisprudence has been rightly described as the grammar and the eye
of law.
Jurisprudence: Indian Aspect
• The Philosophy of Law is rarely taught in philosophy Departments in India.
However, it is mandatory course at all Indian law school, where it is called
jurisprudence.
• The nature of the legal system in India is profoundly hybrid and is characterized by
what may termed multi-form hybridity. By hybrid, we refer to a mix and blend of
foreign and indigenous elements, a fusion of ancient and modern elements, and
other crossovers of local, customary practices interwoven with formal, national or
even international law.
• By multi form hybridity, we refer to the way that the hybridities are not static but
have evolved over time in such a manner that what we refer to as foreign may be
deeply domesticated, and what legal or cultural elements get mixed and fused can
be layered one over the other and continue to evolve and become integrated over
time.
Continued
• To take a concrete example, think of the Indian Constitution. This amazingly
complex document blends indigenous ideals ( duties) and institutions
(Panchayats) with colonial British ideals and institutions(Parliament, Supreme
Court, etc.)which by 1950 were already well on their way to being regarded as
authentically Indian, and then fuses these hybrid with borrowed norms and
principles from American, Japanese, French and German Constitutional law
and practices.
• On top of this multi-form hybridity that is the Indian constitution, we get 71
yrs. of interpretations and re-interpretations of its meaning, both through
amendments by parliament, and judicial review by the SC- common law, case
law and customary practices continue to evolve, adapt, all contributing to the
multi form hybridity of the Indian constitution.
Continued
• For the study point of view, we can divide the whole Indian Concept of Jurisprudence
into three parts: Ancient Time, British Time and new jurisprudence evolved by Indian
Jurists, Judges and Lawyers.
• Ancient Time: Before the advent of the British rule in India the legal system mainly
embodied customary, moral cum religious rule ordained in the Dharma sastras. The king
in ancient India was the symbol of Dharma-rule of Law and was described as protector
of the people, defender of faith and moral values. He was only the executive head called
Danda which was to be exercised judiciously in the interest of Dharma. A true King was
always subject to Dharma and was never regarded as sovereign in the Austinian sense of
the term. It was Dharma alone which was truly sovereign which bound both the king
and the subject and no King howsoever powerful dared to violate the Rule of Law.
• In short in ancient India the king was bound by the Rajya dharma which enshrined
duties and obligations of the King for the promotion of welfare of his subject.
British Period
• It was only in the wake of British rule in India that alien colonial rulers arbitrarily imposed their
laws, political systems and language on India by rejecting and ridiculing the traditional laws,
institutions and values of Indians as barbaric, crude and even cruel.
• During the hey days of British imperialism and absolute power, no theory of law could fit so
eminently as Austin’s Analytical positivism which meant despotism, status quo, police state, anti-
people government and alien laws and judicial system –all rolled into one known as Austinian
Positivism.
• In India before 1947 the legal community-the lawyers,judges and law teachers have been
overwhelmingly anglicized in their approach towards the study of law and society. Austin was
their god- father and his philosophy of law was their Bible which they capriciously worshiped by
sacrificing the good of the people. They failed to understand the implications of Analytical
jurisprudence which supported the strong-arm policy of British rule to imposed their laws and
legal system on India. In British time the laws were in the nature of commands imposed on India
to meet the needs of British rule and British interest.
Continued
• First Law Commission was established by the British Government with
men like Lord Macaulay as its chairman set the trail of incorporating
English law in Indian Codes and Statutes. What English law meant to
Law Commission was the positive law of England-especially Austinian
in perceptions and postures.
• It is more interesting to find that Indian codes were more elaborate,
exhaustive and clear in form and content than English statutes.
• The IPC 1860,the ICA,1872,The IEA,1872 etc. introduced alien
jurisprudence to fill the legal vacuum without bothering for moral
sensibilities and values of the Indians and their legal culture.
Contemporary or new Jurisprudence
in India
• After Independence , we have adopted our own Constitution in which ideals to achieve
were inserted by the fore fathers. The entire Indian legal theory was based on three
cardinal elements that is liberty , equality and justice for its citizens. The Constitution
became the National Charter and paramount law of the country. By way of
interpretation judges of the Supreme Court have developed new jurisprudential ideas
for the satisfying the needs and aspiration of the people of the country.
• A K Gopalan Case – Austinianism Revived ,
• In Sajjan Singh Case (Parliament can amend part iii under Art 368)
• In Golak Nath Case( Parliament’s cannot amend in Part III of the Constitution under
Art.368)
• In Keshavananda Bharati Case ( Basic structure Principle) wherein SC reversed the
decision of Golak Nath case and gave the Parliament almost a free hand in promoting
social and economic well being of the people.
Continued
• In the post-emergency era the SC has given new dimension to law and justice by leaving a
home-spun jurisprudence harmonising , reconciling and furthering the needs of the people in
the spirit of social service and as Nyaya darshaka to society.
• Maneka Gandhi Case, 1978.
• Moti Ram v. State of MP,1978 , Justice Krishna Iyer, observed that ‘Where doubts arise the
Gandhian talisman becomes a tool of interpretations: whenever you are in doubt –apply the
following test. Recall the face of the poorest and the weakest man whom you may have seen,
and ask yourself, if the step you contemplate is going to be of any use to him.’
• The Indian designers of jurisprudence have interwoven law-morality and justice to make law
for little Indians.
• There is now increasing concern among the jurists to orient Indian Jurisprudence and law on
the core philosophy of our Constitution. Its preamble, principles and postures so that legal
system becomes an instrument of peaceful change and evolution with a capacity to meet new
problems and challenges within the framework of rule of law and democratic institution.
Continued
• In S P Gupta v, Union of India ,AIR 1982, the gamut of contemporary social change
through law can be reflected no better than what Mr. Justice P N Bhagwati said. ‘
today a vast revolution is taking place in the judicial process; the theatre of law is
fast changing, and the problems of the poor are coming to the forefront. The Court
has to innovate new methods and devise new strategies for the purpose of
providing access to justice to a large masses of people who are denied their basic
human rights and to whom freedom and liberty has no meaning.
• Judges of the SC developed following principle by way of interpretation of existing
laws:1. Basic Structure principle(Keshavananda Bharati case),2.Right of maintenance
to Muslim Women Shah Bano Case),3.Equality and reservation(Indra Sawhney),4.
Special status to LGBT community( Naz Foundation Case),5.Prevent Sexual
Harassment at the workplace( Vishaka Case) .6.Rape and security( Nirbhaya Case)
etc.
What is Law?

• No simplistic definition of law is considered satisfactory. We need an analysis to unravel

the confusion surrounding through concept of law in order to highlight the salient
features of legal system, and to provide an insight into the nature , function and
operation of law.
• Law for layman---- Courtroom, a judge, a lawyer, A policeman or an accused. Because
ordinary person always think of law in terms of dispute settlement, and maintenance
of law and order.
• Law for Judge and Lawyer---Customs, Statute ,Code or Judicial Decisions. Because
these are sources from which the law is determined.
• Law for Student of Law--- They consider law as a regulatory mechanism, a Code of
conduct, a set of binding norms governing human behavior in society or law as an
instrument of social change, or as means to achieve justice in society.
Continued
• It means different people have different idea or thinking about law. This is because
they look at law from different perspective. Although each of these versions is correct,
yet they are partial descriptions of law. It is possible to understand law by looking at
its sources. We will get a clear picture of law if we look at nature and functions of law.
• A student of law must necessarily have a clear idea of law because that will help the
student in proper understanding of any Particular Branch of law, and, also in
understanding the manners in which a legal system works.
• The existence of law presupposes the existence of a community. Ubi societas, ibi jus or
where there is a society, there is law.
• From one perspective , law may be simply described as an abstract body of rules.
From another perspective , it is a social process for compromising the conflicting
interests of men. Law can also be conceived as evolving from society, and being
sustained by social acceptance.
Continued
• Austin: Law as the general command of the sovereign to his subjects
obliging them to a course of conduct.
• Salmond: Law as the body of principles recognized and applied by the
state in the administration of justice.
• Holmes: The prophesies of what the court will do in fact and nothing
more pretentions are what I mean by the law.
• Duguit: Law as essentially and exclusively a social fact. In can only
exist when men live together.
• Pound: Law as social institution to satisfy social wants.
Continued
• the main function and purpose of law is to achieve justice, stability and peaceful change
in the society.
• Primarily Justice means equality.
• Aristotle: Injustice arises when equals are treated unequally, and also when unequals are
treated equally.
• Distributive Justice, which aims at ensuring a fair division of social benefits and burdens
among the members of the community. It serves to secure a balance or equilibrium
among the members of the society. When this balance is disturbed, corrective justice
must step into and correct the in equilibrium.
• No rule can provide for every possible solution. Too much stability will lead only to
rigidity and stagnation. Law must be stable, yet it cannot stand still.
• It can be said that law must aim at the creation of order, as well as the realization of
Justice.
Austin’s Classification of Law
Law and Morality
• Immanuel Kant: Law concerned with external conduct and morality
concerned with internal conduct. In this view, law requires external
compliance with existing rules regardless of the underlying motive.
• Morality appeals to the inner conscience of man, his intentions, sense of
ethical duty, and concern for good for its own sake.
• Law is heteronomous, i.e., imposed on man from outside, while morality
is autonomous, coming from within man’s inner self.
• When the question whether a person is guilty has to be determined on
the basis of mens rea or bonafides, law cannot merely look at external
conduct and decide. Similarly, morality is concerned not only with
internal conduct, but also with external conduct.
 • Historically , we find no clear distinction was drawn
between law and morality in ancient times. In Greece, lay
juries who administered justice in popular courts did not
perceive any clear distinction between what was legally
prohibited and what was morally wrong.
• The Romans defines laws in the language of morality.
(What is just and unjust?)
Continued • In England, Chancellors administered equity according to
the dictates of their conscience, which had been shaped
by the prevailing moral ideals and the religious doctrines
of the Roman Catholic Church.
• In India, the all-pervasive concept of Dharma was the
basis of both law and morality. However, later the
mimansa established the distinction between obligatory
and recommendatory rules.
Continued
• Roscoe Pound identifies four stages in the law –morality relationship:
• 1. First Stage( pre-legal stage): There was no difference in ethics, customs,
religion and law.
• Second Stage: Strict laws, codified or crystalized which is outstripped by morality(
Laws developed in 19th Century or what did Bentham and Austin say about law)
• Third stage: It is stage when morality infused in law and reshaping law by morals.
Idea of equity and natural law play an important role in the growth of law.
• Fourth Stage: It is conscious constructive law making in which morals and
morality are for the law makers to consider. In this stage law attain maturity and
judges have to decide only according to the law which are written in the statutes.
Continued
• H L A Hart enumerates four feature, which distinguish morality from legal as well as social rules.
• 1. Importance; Hart places morals rules at a higher place in relation to other social rules and even some
rules of law.
• 2. Immunity from deliberate change: In the case of legal rules, it is always possible to repeal old rules,
change existing rules, and introduced new rules. Morals rules cannot be brought into existence, altered
or repealed, in a similar manner. Moral rules of a society may also change, but the change is not
deliberately brought about by any single factor. It is the result of a several factors which exert an
influence of social morality. Law may also be one of the factors which influence change in moral rules.
• Voluntary Character of Moral Offence: A person will be absolved from moral responsibility if he can
establish that his act contrary to a moral rule was done unintentionally and in spite of every precaution, it
was bound to happen in given circumstances. Such an excuse will not be accepted in legal system in all
circumstances.
• Form moral pressure: The typical form of legal pressure consists of physical punishment or unpleasant
consequences. Since moral rules are concerned with the conscience of man and obedience to them is
considered to be internal, a rule which is enforced by threat of punishment cannot be regarded as a
moral rule.
Continued
• Shaw v. DPP (1961 ,H L), In this case, a person published a book titled ‘Ladies
Directory’, listing the names and addresses of prostitutes in London. Strictly
speaking , such publication did not constitute any offence as defined by law.
Nevertheless, he was convicted for the offence of ‘conspiring to corrupt public
morals’, an offence not known to law till then. Justifying the conviction, Lord
Viscount Simmonds said: There remains in the courts of law a residual power to
enforce the supreme and fundamental purpose of law, to conserve not only safety
and order, but also the moral welfare of the state.
• Further, supporting this view, lord Devlin argues strongly that a society posses public
morality simply because it is a society, and the criminal law cannot ignore the
collective moral judgment of the community. If there is a strong and pervasive
feeling that certain conduct is extremely threatening and reprehensible to the basic
rules of community life, then the sanction of the criminal law should be applied.
Continued
• Hart - Fuller Debate about morality and Law: Hart argues that power can rightfully be exercised over any
member of a civilized community against his will is to prevent harm to others. He wants to separate law from
moral questions. Naturally, he is opposed to the very idea of vesting a power in the courts of law to enforce
the supreme and fundamental purpose of law in order to conserve the moral welfare of the state.
• According to Fuller law must possess certain characteristic if it is to be classified correctly as law. The most
important characteristic is ‘inner morality’ which must command respect. Further he asserted that even
though the law may be formulated and promulgated in traditional, formal fashion, its lack of internal
morality deprives it of the nature of ‘true law.’
• According to Hart a rule of law may be morally iniquitous ,but it is still law. The validity of law cannot be
impugned solely on the ground of its lack of morality.
• To conclude, Hart believes that the immorality of law cannot constitute the basis of denial that it is, and will
continue to be, law until properly repealed. Fuller on the other hand , is of the view that the immorality of
law vitiates or destroys, its right to be called law, if it is founded upon a denial of the principles of inner
morality, and such law is not entitled to any respect form the citizens of the country. ( The main problems of
Morality and law are founded on the conflicting positions of natural law and legal positivism)
State ,Sovereignty and Law
• The term ‘State’ is derived from the Latin word ‘Status’ which means standing that is to say position of a
person or body of persons. State must posses the attribute of sovereignty.
• State: it is one of the most important legal institution which is said to be the source of all laws, authority
and power. According to Oppenheim ‘Existence of state is depending when a people settled in a country
under its own sovereign government. Now a day's state is treated as an artificial person in the eye of law.
There are four or five elements are required for the existence of state: 1. Population.2. territorial boundary,
3. Government,4. sovereignty and 5. Capacity to make relationship with the other country.
• Sometimes the term State is defined with respect to Independence and Sovereignty.
• The term Sovereignty was coined by Jean Bodin ( French Philosopher and political thinker) in his book ‘Los
seis libros de la Republica’(1577 AD) which kown as ‘The Republic’. He defied sovereignty as the absolute
and perpetual power within a State. He was a theologian. Sovereignty is subjected to God or law of nature.
In 17th century Hobbes went beyond Jean Bodin by saying that sovereign is not bound by anything even by
God or Religion.
• In the 18th Century the controversy centered whether sovereignty is divisible or not. In 1787 the USA turned
from a confederation of a state into a federal state at the same The Social Contract theory of Rousseau was
appeared in 1782 and he defended the indivisibility of sovereignty.
Continued
• In 19th century the old controversy regarding divisibility of sovereignty had by no means died
out.
• In 20th century the problem of sovereignty has been discussed with reference to international
law and international organizations. Now in 20 th century the concept of absolute sovereignty
has been diluted to some extent. Duguit and Kelsen have all together rejected the theory of
State and sovereignty as abstract, unreal and unjust. The membership of the states with the
various international organizations like UNO or ILO indicates that State sovereignty has been
reconciled with the obligation of states towards the international community.
• According to Austin, sovereignty implies all round supremacy –internal and external with no
constraints whatsoever. No law, whether moral law, natural law or international law was
superior and binding over the sovereign.
• Hence the concept of sovereignty as conceived by Bodin, Hobbes and Austin has three
important basic elements: 1. sovereignty within the state is essential.2. sovereignty is
indivisible and 3. sovereignty is unlimited and illimitable.
Continued
• According to Austin a state without its sovereignty may be compared to a
man without soul or spirit.
• All total sovereign powers must vest and rest in one single determinate
person or body of persons like Parliament.
• There is nothing beyond state ,besides state or above state. Any limitation
on the powers of the sovereign is a contradiction in terms.
• In England today the actual sovereignty is exercised by the executive by
means of subordinate or delegated legislation which is subject to judicial
review.
• The traditional concepts of law or state or sovereignty are inapplicable to
contemporary Indian Legal theory and constitutional Jurisprudence.
 Relationship between Law and
State
• There are three theories which say about the relationship between law and state: 1. Law is above state, it
means law is superior to state. (The jurists of Natural Law school and Historical Law were of the view that
law is prior to state and nothing is beyond divine law or the law of reason. In ancient and medieval period it
was said that law derived from a divine source and should be considered binding upon the worldly power of
the state. Hugo Grotius and Christian Wolf were of this view. In 20th century State is also regarded subject to
the authority of law,. The Dutch Jurist H. Karbbe and French Jurist Leon Duguit reject the notion of State and
Sovereignty and assume the existence of a supreme law over and above the state. According to modern
Jurists like Kelsen, Kohler the validity of law has to be sought elsewhere than in the formal postulate i.e. will
of the sovereign)
• 2. State is above Law; it means law is derived from the sovereign will of the state. Hobbes, Bentham and
Austin were the jurists to follow this view. According to Austin law is nothing but a command of the
sovereign, the sovereign itself is not bound by law but it has the power of compelling the other members of
the community to do exactly as it pleases.
• 3. State and law are one; Law and the state are like different aspects of the same coin. Jurists like
Vinogradoff, Bentley and Kelsen were follow this view. According to Kelsen State and law are one thing.
Functionally and sociologically speaking the dichotomy between State and law is conceptual and
meaningless. In its essence both aim at securing legally recognized and protected interests and expected
social ends of the community.
Sources of Law
• Sources of law means a material on which laws are based or by which laws are developed
and also they have pivotal role in functions of law.
• Sources of law are the origins of laws, the binding rules that enable any state to govern its
territory. It may sometimes refer to the sovereign or the seat of power from which the law
derives its validity.
• John Chipman Gray considers law as the rules authoritatively laid down by the courts in
their decision. Only rules laid down by the courts as law, and everything else as the source
of law( common Law ,equity and canon law)
• Salmond categorised sources of law into two points; formal source and material source.
Formal sources of law as that from which a rule of law derives its force and validity. It is the
will of the state as manifested in statutes or in decisions of courts. A Material source of law
is that from which law derives the matter not the validity. Custom of the community ,
principle of ancient Roman law , Islamic law , Hindu law, juristic writing, decision of foreign
courts are the example of material sources of law.
Continued
• The rule applied by a judge in deciding a case may be drawn from a custom, what gives it a legal
force is not the custom but solemn determination of a court.
• It is common knowledge that in the modern state, the law is normally created by the formal act of
legislation, or by the decisions of a court. Law may also be created by the act of a subordinate person
or a group of person acting within the limits of delegated authority. These are the formal sources of
law.
• Every legal system lays down the criteria of validity, which a proposition has to satisfy before it is
considered as a valid proposition of law.
• Sources of law may also be classified into legal and historical sources. Legal sources are those sources
which are recognised as such by the law itself. Historical sources are the sources lacking formal
recognition by the law. Legal sources are said to be the only gates through which new principles can
find entrance into law. When we say this , we are stressing the authoritative nature of the legal
sources. However, this does not deny the importance of historical sources. In fact , all rules of law
have historical sources. Whatever laws are existed in India the ultimate source is always historical,
and not legal. The validity of the Constitution is assumed or accepted as self evident.
Continued
• In jurisprudence, we are mainly concerned with the legal sources of law from which law may
be found to proceed. These sources are custom, legislation and judicial precedent. We can say
that legal sources of law may be categorised as follows:
• i) Enacted law having its sources in legislation;
• ii) case law having its source judicial decisions of Higher Court as precedent;
• Iii) Customary law having its source in customs; and
• Iv) Conventional law having its source in agreements.
• Precedent denotes the making of law by a declaration and application thereof by the court in
a decision in the course of administration of justice.
• Customary law is constituted by those customs which fulfil the requirement laid down by law
as the condition of their recognition as obligatory rules of conduct.
• Conventional law is constituted by agreements having the force of special law inter parties in
addition to the general law of the land.
Custom as a source of Law
• Custom is a material source of law. It is the product of community practices and traditions. In all
societies whether of the west or east, developed or under developing , primitive or modern custom
has enjoyed a respectable place in varying degree in the regulation of human conduct. It has been
considered as the outward expression of latent principles of justice, social values and moral norms of
each society which it cherished as fundamental in the governance and administration of justice.
• Salmond: customary law is that which is constituted by those customs which fulfil the requirements
laid down by law as the condition of their recognition as obligatory rules of conduct. Custom is to
society what law is to state.
• Holland: Custom was law before it received the stamp of judicial authentication. Allen also recognises
custom as self contained, sufficient and self justified law.
• Family Laws or personal laws of every country are solely based on customs. Article 25,26 and 28 of
the Constitution indirectly guarantees the protection of such customary practices of a community
which of course are not contrary to the concept of secularism and democratic socialism.
• Custom comes under inclusive definition of laws which are mentioned in Article 13(3) of the
Constitution.
Continued
• Justice Gray regarded custom as a valid source of law which arises from judicial
decisions.
• Savigny, the founder of Historical School says that the real basis and source of
positive law is custom. The living law is to be found in the instinctive awareness of
ends of common goal of a people. He referred the general consciousness as
volksgeist i.e. the will of the people. Volksgeist is ,therefore, the embodiment of
customs, traditions, usages, heritage and culture etc., of people. Volksgeist is
invisible inarticulate silently operating phenomenon and it can be discovered by
the external acts which manifest itself in usage, manner and customs. Accordingly
custom is the evidence of law and the chief source of law. It is a badge and not the
ground origin of positive law.
• There is inevitably a tendency in society to adopt what has been followed in the
past as safe guide for the future.
Continued
The main reason for reception of customary law into the law of the modern
state are: i) Custom is frequently the embodiment of those principle, which
have commended themselves to the national conscience as principle of
justice and public utility, and are embodied in the maxim via trita via tuta i.e.,
frequented path is reliable path. So, it is said that custom is to society, what
law is to state. ii) The existence of an established usage is the basis of a
rational expectation of its continuance in the future. As for as possible the
state tries to fulfill people’s rational expectations rather than frustrate them.
Even in fully development legal systems, customs are not totally replaced by
positive law. Customs which are not contrary to the prevalent mores of the
community are either recognized and incorporated into the law or are merely
tolerated.
Continued
• In order to operate as a source of law a custom must have the following
attributes: 1. Immemorial Antiquity, 2. Reasonableness,3. Conformity with
the statute law, 4. Exercised as of Right, 5. Not Immoral,6. Not by Analogy,
7. Continuity and Certainty, 8. Consistency with other customs.
• Now, we are observing that the importance of custom diminishes with the
growth of legal system and custom is superseded by legislation and
precedent.
• Since custom is not necessarily linked to any sense of justice by this reason
there were so many absurd customs existed in our society for example; Sati
pratha, slavery system, child marriage, triple talaq etc.
• In conclusion the customs are still a material sources of law.
Legislation as a source of Law
• Legislation means law making or laws made by the legislature. It also denotes the laying down of
legal rules by a sovereign or subordinate legislature. In jurisprudential sense ,legislation includes
only an expression of the will of legislature directed to the making of the rules of law. Thus,
legislation may be defined as the enunciation or promulgation of laws by the legislature of the
state. It is the formal declaration of the legal rules by the legislative organ of the body politic.
• In other words legislation means enacted law by the law making body of a particular country. In
Roman Law there was a division between jus non scriptum( Customary laws or unwritten laws)
and jus scriptum( written laws or enacted laws or statutory laws).
• In modern democracy, the law making power is vested in a body of elected representatives of
the people. If the state is federal there will be a law – making body at the centre, and each unit
will also have its own law making body.
• ( When the legislature makes a law, it does not have any actual disputes before it, and it lays
down general rules for the future, without any reference to any actual dispute. Judicial law
making is incidental to solving of legal disputes.)
Continued
• Limits on Law making Power of the Legislature; Historically, England has been following the
principle of Parliamentary sovereignty, which practically makes the legislature omnipotent
in the field of legislation.( king can do no wrong, British Parliament can make a man into
woman vice versa)
• Crown Proceeding Act 1947, diluted the Crown’s power and make them answerable for the
act committed by theirs servant.
• The first step in restricting Parliamentary sovereignty was taken when Britain became a
member of the European Community in the year 1973. Section 2 of the European
Community Act 1972, stated that Parliamentary statutes, both past and future , shall take
effect subject to community law.
• In 1998, when British parliament passed Human Right Act. This Act incorporated the
European Convention on Human Rights 1950 into domestic law. The Act provides that if any
British Legislation is found to be incompatible with the provisions of the European
Convention, a court can issue a declaration of incompatibility.
Continued
• In India, part iii of the Constitution, and the distribution of legislative
powers between union Parliament and state legislature in Sch. VII of the
Constitution limit the law making power of the parliament and state
legislature. Any law enacted by the legislature does not automatically
attain the quality of law; it has to satisfy a further criterion of validity,
namely the test of constitutionality. This test is done by the Judiciary.
This gives the Judiciary the power to decide whether a law enacted by
the legislature is valid. Legislation thus loses its dominating position as a
source of law to some extent. The power of judiciary to sit in judgment
over laws enacted by the legislature raises important jurisprudential
questions concerning the inter-relationship between the legislature and
judiciary.
Continued
Kinds of Legislation: Supreme legislation and Subordinate Legislation.
• Supreme Legislation proceeds from the supreme or sovereign power in the State and
is , therefore, incapable of being repealed, annulled or controlled by any other
legislative authority.
• Subordinate Legislation proceeds from any other authority , and is dependent for its
validity on some superior or supreme authority. It is important to remember that the
authority of a subordinate body to legislate is derived from the sovereign legislature.
Subordinate legislation is subject to Parliamentary and judicial control.
• Subordinate Legislation may be classified into five forms. These are: 1.Colonial
Legislation, 2. Executive legislation,3. Judicial Legislation( Art.145 & 227), 4. Municipal
Legislation( Municipal authorities, Local-self government), 5. Autonomous
legislation( corporations, Trade Unions, Professional association of Lawyers and
Doctors.)
Continued
• Delegatus non potest delegare.
• Today, practically every law enacted by the legislature contains delegation clauses
conferring law making powers on the executive to supplement the statutory
provisions.
• Advantage of Legislation: 1. The process of legal evolution necessarily involves three
steps, viz (a) making new laws, (b) repealing old laws; and (c) modifying current laws.
• Legislation possesses greater abrogative powers and becomes more effective
instrument of legal growth and law reform.
• Legislation satisfies natural justice because laws are known before they are enforced.
• Salmond: Case law is gold in mine –a few grains of the precious metal to the ton of
useless matter- while statute law is coin of the realm ready for immediate use.
Continued
• Disadvantage: First is its rigid nature. Legislation applies irrespective
of circumstances.
• Legislation is hypothetical in nature, because it proceed from
assumed facts. The application of legislation to complex fact
situations often becomes difficult.
• If the drafting of the law is defective , its meaning becomes
ambiguous resulting in difficulty in application. This naturally gives the
judges more freedom of interpretation.
Continued
• Codification: It means reduction of corpus juris( the whole body of law) to the form
of enacted law. The main motive behind Codification was the desire to render the
accessible, certain, definite, harmonious, logically arranged and simple.
• Once the process of codification is completed, the presumption is that every case
could be decided by deduction from the provisions of the Code. However
experience shows that no Code has ever been perfect. There is flaws in drafting by
which ambiguity appears in the provisions of the Code. Flaws in the code make it
impossible to decide every case by deduction.
• The movement towards codification became strong in Europe in the 19th century.
The French Civil Code, known as the Code of Napoleon, was enacted in the year
1804. Soon Codes were enacted in Austria-1811, Germany-1896, and Switzerland-
1907.
Continued
• Codification in India: Code have been in existence in India since ancient times. The
Codes of Manu, yajnavalkya, brihaspathi, Narada, and Parashar are the most well
known among the ancient Indian Codes.
• In modern period, attempts to codify the law in India were initiated by the British
rulers with the appointment of the First Indian Law Commission under the
provisions of the Charter Act of 1833. By this Law commission, IPC, CPC and
Limitation Act were drafted.
• The second Law Commission was constituted in 1853. No law is being codified by
the Commission. The Third Law Commission appointed in 1861. by this The Indian
Succession Act 1865 has been enacted. By the recommendation of this Commission
Negotiable Instrument Act 1871, SRA 1871, ICA 1972 and IEA 1872 have been
enacted. The Fourth Law Commission appointed in 1879. By this TPA 1882 has been
enacted.
Continued
• After Independence: The GOI took a major initiative towards codification of
Hindu Law. Despite opposition from orthodox section of the Hindu society
several Acts, which are collectively called the Hindu Code, were enacted. It
includes Hindu Marriage Act,1955, Hindu Succession Act 1956, Hindu Minority
and guardianship Act,1956 and Hindu Adoption and Maintenance Act 1956.
• The enactment of the Special Marriage Act 1956 is also considered to be a
significant step.
• Muslim women (Protection of Rights on Divorce) Act 1986 for Maintenance.
• Muslim Women( protection of Rights on Marriage) Act 2019 for Tripple talaq.
• Uniform Civil Code Art 44 of the Constitution .
Judicial Precedent as a Source of
Law
• Precedent means judgment or decision of a court of law cited as an
authority for the legal principle embodied in it. The doctrine of precedent is
also known as the doctrine of stare decisis, i.e., stand by the decision, is
based on the principle that like cases should be decided alike. Once a case is
decided by a judge by applying a principle, a case on similar facts which may
arise in future must also be decided by applying the same principle. It
develops certainty, predictability, and uniformity in the application of law.
• The English legal system has always attached great importance to judicial
precedent. The vast body of Common Law is almost entirely the product of
decided cases. Continental system ( France, Italy ,Germany and many more
European Country except UK) considers precedent only as evidence of
law ,and not a source of law.
Continued
• The doctrine of stare decisis postulates two conditions to be satisfied: 1. there must be a
settled judicial hierarchy,( for whose court decisions are binding on whom) 2. there must also
be reliable reports of the cases( for record of the cases).
• Blackstone: ‘It is an stablished rule to abide by former precedents, where the same point
comes again in litigation as well as to keep the scale of justice even and steady and not liable
to waiver with every new judge’s opinion.’
• Julius Stone: The essence of stare decisis is that where there is no sufficient reason for
departing from principle laid down in a prior decision, judges should not depart from them.
( There should be sufficient reasons for departing from their prior decision)

• Sir William Holdsworth: The English doctrine of precedent’ hits the golden mean between too
much flexibility and too much rigidity; for it gives to the legal system the rigidity which it must
have if it is to posses definite body of principles, and the flexibility which it must have if it is to
adapt itself to the needs of a changing society.
Continued
• Judicial Precedents are of two types; 1. Original Precedent( which create a new law or new
doctrine), 2. Declaratory Precedents( Those which apply known and settled principles of law to
the particular facts of a case). It is believed that only original precedents are treated as source
of law, but declaratory precedent is not a source of new law.
• Jurists like, Bentham,Austin Friedmann ,Dicey, Gray and Holmes( Constitutive Theory), they
concede the law making role of the judges. Jurists like ,Mathew Hale, Lord Esher, and
Blackstone ( Declaratory theory) they say that the judge’s function is only to discover the
existing law and apply it to the case at hand. English Judges like Mansfield, wright, Atkin, and
Denning were against the declaratory theory. They believed that judges have to develop law in
tune with the changing needs of the society, and the progressive demands of justice ,whenever
occasion demands so.
• In India, where judges have to interpret the Constitution and determine the validity of
legislative enactments and even Constitutional amendments, it is only natural that Judges get
more opportunities to perform creative role. I think the declaratory theory is inadequate to
provide a jurisprudential basis to such a judicial role.
Continued
*Judicial Precedent: 1. Authoritative( Decision of Superior Courts are always considered as
authoritative precedents), 2. Persuasive Precedents( In which judge is under no obligation to
follow) requires reason to support it.
*In India, the SC is the highest court of law in civil, criminal, and constitutional matters. There are
High Courts at the State level, and civil and criminal courts below the high court. Article 141 of the
Constitution states that the law declared by the SC of India shall be binding on all courts in India.
* In Bengal Immunity Co Ltd v. State of Bihar, it was held that although the words, ‘all courts in
India’ appears to be wide enough to include the SC also, they do not include SC. As a result the SC is
not bound and is free to reconsiders its previous decision in appropriate cases. In Sajjan Singh Case,
wherein it was held that the Constitution does not place any restrictions on the powers of the SC to
review earlier decisions or even to depart from them. In Case of State of Gujarat v. Mirzapur Moti
Kureshi Kasab Jamat, the SC observed that stare decisis is not a dogmatic rule, allergic to logic and
reasons; it is flexible principle of law operating in the province of precedents providing room to
collaborate with the demands of changing times dictated by social needs, state policy and judicial
conscience,
Continued
• Exceptions to the doctrine of Stare decisis: Following are the exceptions: 1. If a decision conflicts
with the previous decision of the same court, 2. If a decision has been impliedly overruled by a
subsequent decision of a higher court, 3. If a decision was reached per incuriam , ie, is a decision
which is given in ignorance of the terms of statute or a rule having the force of the statute, 4. if a
decision has become obsolete, ie, it is in no longer functional or has become out of date, and 5. A
decision is sub silentio, a decision arrived at without application of mind or precedent and without
any reason.
• Reversal of a decision takes place on appeal in the higher court of land.
• Overruling a precedent is involves disapproval of the principle laid down in a decision of the same
court. Effect of overruling is retroactive, but practically it is difficult to operate. For avoiding such
practical difficulties, the doctrine of prospective overruling has been developed by the SC.
• Prospective overruling: In prospective overruling , the court upholds the old law, up till the date of
overruling and lays down a different to be followed from that date. The court in effect laying down
a new law for the future. ( American SC in Linkletter v Walker). The SC of India applied this
doctrine in Golak Nath v, State of Punjab.
Continued

• Every judgment or decision of courts have two parts; Ratio decidendi and Obiter dicta.
• When we say that a judicial decision is binding as a precedent , what we really mean is that a
rule or principle formulated and applied in that decision must be applied when similar facts
arises in future. This rule or principle is the ratio decidendi, which is at the centre of the doctrine
of precedent.
• Ratio decidendi means the reason for deciding or rule of law proffered by the judge as the basis
of his decision.
• Ratio decidendi may best be described as the underlying principle of a decision, which forms its
authoritative element.
• Goodhart: Identification of material facts of a case. One has to look at the decision on material
facts in order to reach the ratio of the decision. The difficulty with this method is that there is no
ascertainable yardstick to find out the material facts. What appears to be material fact to one
person may appear to be immaterial to another.
Continued
*Keeton: The ratio of a case is the principle of law upon which judge bases his judgment.
*Salmond: A precedent is a judicial decision which contains in itself a principle. The underlying
principle which thus forms its authoritative element is often termed the ratio decidendi
Stone: it is for the judge to draw ratio decidendi of the earlier case by holding the facts which
he considers necessary for the case before him. This choice of determining as to what are
material and non-material is basically an ethical choice conducive to social requirements,
economy and certainty of law.
*Court must ascertain carefully the true or core principle stipulated in the earlier case and
restrain itself from needlessly expanding the ratio beyond contextual facts or need of a given
situation.
*The position that finally emerges is that there is no foolproof method of finding out the ratio
decidendi of a case. It is always a matter of judicial creativity and decision. It is the Judicial
choice involved in the application of precedent that makes the doctrine of precedent flexible,
and responsive to change
Continued
• Pronouncement of law in the judgment, which are not part of the ratio decidendi, are known
as obiter dicta. Although obiter dicta is not considered authoritative and lacks status of law,
it cannot be dismissed as insignificant. Very often it influences judicial thinking and may, in
course of time , become the ratio.
• The impact of obiter dicta depends on reputation of the judge, the position of the court in
hierarchy and the circumstances in which it came to be pronounced. Example of obiter dicta
are rules of law stated merely by way of analogy or illustration, a suggested rule upon which
the decision is not finally based , a ruling based on hypothetical facts, a judicial declaration of
a rule unaccompanied by its application etc. The observation of the highest court , though
obiter dicta, have high persuasive effect on lower courts. Obiter dicta may help to rationalize
the law, and also serve to suggest solutions to problems not yet decided by the courts.
• Obiter dicta of SCI: In Sarwan Singh Lamba v. UOI, SC declared that even the obiter dicta of
The SC is expected to be obeyed and followed. In Vishakha v. State of Rajasthan, SC held that
obiter dicta is binding on all courts in India when they are stated in clear terms.