Table of Contents
Introduction
Law is a dynamic concept that evolves alongside society, adapting to changing socio-economic and political conditions. In modern times, rapid societal transformations have introduced new challenges, requiring legal responses based on practical interpretation. Contemporary jurisprudence must account for evolving social values and structures, expanding its role as a scientific discipline. This fluid nature of law ensures its continued relevance in addressing the complexities of a rapidly changing world.
To fully understand the concept of law, it’s important to look at where laws come from, known as the “sources of law.” These sources are the foundations from which legal rules and standards develop. Law takes shape from these origins. Different legal scholars have different views on where law comes from. For instance, Austin believes the main source of law is the sovereign authority, while Savigny and Henry Maine emphasize the importance of customs. The natural law theory focuses on nature and human reason as key sources, while religious thinkers rely on sacred texts. Although opinions may vary, most societies create their laws from similar core sources.
Classification of Sources:
Austin
Austin describes the sources of law through three key aspects:
- Direct authority, such as the sovereign.
- Historical records, like legal codes.
- Factors that give legal force to societal laws, including legislation and customs.
Salmond
Salmond, an English jurist, classifies the sources of law into two main categories:
- Formal Sources of Law: These are the foundations from which laws draw their authority and validity, such as laws enacted by the State or Sovereign.
- Material Sources of Law: This category refers to the content or substance from which laws originate. Customs are an example of material sources.
In modern legal systems, legislation is the primary foundation, though customs also play a significant role in some countries. Additionally, in certain legal systems, court decisions are considered binding sources of law. These sources are divided into two types: legal and historical sources.
Legal sources are those that are recognized both in fact and by law, such as:
- Legislation (enacted laws) 2. Judicial precedents (case law) 3. Customs 4. Conventional law (such as treaties and agreements)
Historical sources include sources that exist in fact but are not legally binding, such as:
- Legal writings 2. Juristic opinions 3. Foreign judgments 4. Constitutions
Common sources of law:
In modern societies, three primary sources of law can be identified:
- Custom
- Judicial precedent
- Legislation
Custom as a Source of Law:
Custom refers to long established practices or unwritten rules that have gained legal authority over time. For a custom to be recognized as law, it must have been practiced continuously without interruption and be supported by public opinion and moral standards. While not all customs become laws, some customs that align with societal values and are widely accepted by communities may achieve legal status. For instance, under the Hindu Marriage Act of 1955, although marriages within prohibited degrees of relationships are generally forbidden, exceptions are made if such marriages are customary within a particular community. In ancient societies, custom was considered the primary source of law. However, its significance has gradually diminished with the rise of judicial precedents and formal legislation in modern legal systems.
Whether Custom is true law or not? Answer to this question is given in different manner by different thinker and it differ in their perspectives on the same like There are two main viewpoints regarding whether custom qualifies as law. Austin argued against custom being classified as law because it does not originate from the sovereign’s will. On the other hand, jurists like Savigny viewed custom as the true source of law, asserting that the people’s will, as reflected in societal customs, is the real basis of law. For instance, practice of Nikah in Islamic marriage. Nikah is a contract between a man and a woman that is performed with the consent of both parties, and it involves a customary set of rituals, including the recitation of verses from the Quran and the payment of Mahr (a mandatory gift from the groom to the bride). This custom has been codified into Islamic law and is recognized by various legal systems that follow Islamic jurisprudence, such as the Muslim Personal Law (Shariat) Application Act, 1937 in India.
Types of Customs:
Customs can be categorized into two broad types:
- Customs without sanction: These are non-binding customs, voluntarily followed due to public opinion and social acceptance.
- Customs with sanction: These customs are enforceable by law and are further divided into: A) Legal Customs: These have absolute authority and are recognized and enforced by courts. They can be: I) General Customs: Applied across the state or nation. II) Local Customs: Specific to particular regions or communities. B) Conventional Customs: These customs bind parties through agreements, commonly seen in trade practices.
Essentials of a Valid Custom:
For a custom to be legally recognized as a source of law, it must meet several criteria:
- Antiquity: The custom must be ancient. In England, 1189 serves as a benchmark, whereas in India, the custom should have existed since time immemorial.
- Continuity: The custom must have been practiced without interruption.
- Exercise as a Right: The custom must be practiced openly, acknowledged by the community, and recognized as a right.
- Reasonableness: The custom must be reasonable and consistent with justice and public interest.
- Morality: The custom must not be immoral or against public policy. For example, the Bombay High Court ruled that the custom of adopting girls for immoral purposes was illegal.
- Compliance with Legislation: In modern legal systems, legislation generally supersedes custom. For example, child marriage and certain adoption practices have been outlawed in India through new legislation.
Judicial precedent as a source of law:
Judicial precedent refers to the decisions made by higher courts, such as the High Courts and the Supreme Court, which lower courts must follow. These earlier rulings are important because they establish consistency in the legal system, ensuring that courts follow the same principles. In India, the Constitution outlines the hierarchy of courts, where lower courts are bound by the decisions of higher courts. While judicial precedent is a key source of law, it is not as recent as legislation nor as ancient as custom. It plays a significant role in countries with common law systems like England. In modern legal systems, the judiciary is a crucial part of the state. Judges help resolve disputes about citizens’ rights, and while they rely on existing laws and customs, they also interpret the law, creating new rules and principles that lower courts must follow.
Definitions of precedence:
- According to Gray, ‘Precedent covers everything said or done, which furnishes a rule for subsequent practice.’
- According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure been attached.’
- According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’
- Blackstone said that it is an established rule to abide by the former precedents where the same points come again in litigation.
- According to Jeremy Bentham, precedent is judge made law
Types of precedent:
There are mainly four types of judicial precedents. They are discussed as follows:
- Original precedents.
- Declaratory precedents
- Authoritative precedent
- Persuasive precedent.
- Original and Declaratory Precedents: Judicial decisions can be categorized into two types: those that establish new laws and those that apply established legal principles to specific cases. Both types of decisions serve as precedents. This is because courts use them as official references for resolving future cases. Decisions that create new laws are known as original precedents, while those that apply existing legal principles to specific facts are referred to as declaratory precedents. Declaratory precedents do not serve as a source of law, unlike original precedents, which form the foundation of legal principles. As John William Salmond pointed out, a declaratory precedent involves merely the application of an already established legal rule to a case. On the other hand, an original precedent introduces and applies a new legal rule, playing a crucial role in shaping new laws.
- Authoritative and Persuasive precedent: The classification of precedents into authoritative and persuasive is widely recognized. An authoritative precedent is one that a judge is obligated to follow, regardless of personal agreement. In other words, the judge has no discretion in the matter. For instance, decisions made by the Supreme Court of India are binding on a judge of the Kerala High Court, while decisions of the Kerala High Court are binding on lower courts within Kerala. In the precedent system, the rulings of higher courts are always considered authoritative.
Authoritative precedents are further divided into two types: absolute and conditional. In an absolutely authoritative precedent, judges are required to follow the previous ruling, even if they believe it to be incorrect. For example, all courts in India must adhere to the decisions of higher courts, due to the hierarchical structure. A conditionally authoritative precedent, however, is generally binding but may be disregarded in exceptional situations, such as when a Supreme Court ruling is found to be flawed or contrary to law and reason.
On the other hand, a persuasive precedent is one that a judge is not obligated to follow but will seriously consider when making a decision. Although persuasive precedents do not serve as direct sources of law, they are seen as valuable historical references. In India, the decisions of one High Court may serve as persuasive precedents for other High Courts.
Judicial decisions can be divided into the following two parts or there are two major principles of precedent:
(I) Ratio decidendi (Reason for the Decision): The term “ratio decidendi” refers to the binding element of a judicial ruling. It literally means the “reason for the decision.” This represents the general principle derived by the court from the facts of a particular case and serves as a binding precedent for lower courts in future cases that involve similar legal questions.
(II) Obiter dicta (Said in Passing): “Obiter dicta” refers to the incidental remarks or observations made by a judge during a ruling, which do not carry binding authority. However, when obiter dicta come from higher courts, they are often given significant weight by lower courts and possess persuasive value.
Considering both aspects of a precedent—ratio decidendi and obiter dicta—it becomes evident that the system of precedent is rooted in the hierarchical structure of courts. Thus, understanding the hierarchy of courts is essential for comprehending how precedent operates. In India, the doctrine of precedent is fundamentally based on the hierarchy of courts.
Importance of precedent in modern legal system:
Among contemporary legal systems, Anglo-American law is often referred to as judge-made law, known as “Common Law.” This system evolved primarily through judicial rulings, with many areas of law, such as torts, being developed entirely by judges. In England, constitutional law, especially concerning citizens’ freedoms, also grew through judicial decisions. As Tennyson aptly put it, “where freedom slowly broadens down, from precedent to precedent.” Article 141 of the Indian Constitution establishes that the law declared by the Supreme Court of India is binding on all subordinate courts. However, the Supreme Court is not bound by its own previous judgments.
Precedents play a significant role not only in municipal law but also in international law. The decisions of the International Court of Justice (ICJ) are a key source of international law, as acknowledged in Article 38(1)(d) of the Statute of the International Court of Justice. Furthermore, Article 59 clarifies that the ICJ’s decisions carry persuasive value in future cases but are not binding on the court itself for subsequent rulings. A decision only binds the parties involved in that specific case. This discussion highlights the critical role and importance of precedents in shaping legal systems, both at the domestic and international levels.
3. Legislation as a source of law
The term “legislation” originates from the Latin words “Legis,” meaning law, and “Latum,” meaning “to make” or “set.” Therefore, “legislation” refers to the process of creating laws. It is a form of lawmaking that involves the formal declaration of legal principles by a legitimate authority. Legislation represents the most authoritative and autonomous means of establishing laws. It is the sole mechanism empowered to introduce new laws, repeal outdated ones, or modify existing ones. However, the term “legislation” specifically applies to lawmaking where legal rules are formally codified by a recognized authority, such as the state legislature. Laws that originate from this process are referred to as statutory or enacted laws.
Gray noted that legislation refers to the ” formal utterances of the legislative organs of the society” Salmond similarly defines legislation as the source of law that involves the proclamation of legal rules by an authorized authority. He further explains that legislation, as a source of law, involves the formal declaration of rules by a competent body. Salmond identifies three different ways in which the term “legislation” can be understood. In its narrowest sense, it refers to the legal rules issued by a legitimate authority. In its broadest sense, legislation covers all methods of creating law. This broader definition can be broken down into two categories: (i) direct and (ii) indirect legislation. Direct legislation involves laws explicitly declared by the legislature, while indirect legislation encompasses other actions that contribute to lawmaking. In this broader view, any expression of legislative will—whether it results in a law or not—falls under legislation. Austin reinforces this by stating, “There can be no law without a legislative act.”
Definitions of Legislation:
Salmond: Legislation is the source of law that involves the establishment of legal standards by an authorized authority.
Austin: Legislation is the command issued by the sovereign or supreme authority, which the public must obey, and is enforced through penalties.
Gray: Legislation represents the formal expression of the governing bodies of society.
Schools of Jurisprudence on legislation as source of law
The Analytical (Positivist) School, led by John Austin and Jeremy Bentham, sees legislation as the primary source of law, emphasizing the command of a sovereign authority. Bentham also viewed legislation as a tool for societal good, codifying laws to promote welfare
The Historical School, led by Friedrich Carl von Savigny, considers legislation a secondary source, arguing that law evolves organically from societal customs and traditions, with legislation mostly formalizing these practices
The Sociological School, championed by Roscoe Pound, views legislation as a tool for social engineering, helping address societal needs and balancing competing interests through law.
The Natural Law School, with figures like Thomas Aquinas, holds that legislation must align with moral principles, considering divine or moral law superior to enacted law.
The Realist School is skeptical of formal legislation, asserting that law in practice often differs from written statutes, with judges playing a key role in interpreting laws based on real-world outcomes
Types of Legislations
Salmond classifies legislation into two primary categories:
- Supreme Legislation: Supreme legislation refers to laws enacted by a supreme authority or a sovereign law-making body, such as the legislature of an independent and sovereign state. These laws are considered “supreme” because no other authority can revoke, modify, or control them. In other words, such legislation is immune to repeal or alteration by any subordinate legislative body.
- Subordinate Legislation: Subordinate legislation, on the other hand, is enacted by an authority other than the sovereign or supreme law-making body. It relies on the higher authority to remain valid and for its continued existence. While the Parliament of India, for example, holds supreme legislative power, other bodies or organs are granted the power to make subordinate legislation, subject to the limits set by the supreme authority.
There are certain types of subordinate legislations that are discussed as follows
- Colonial legislation: During the era of the British Empire, the British Parliament granted varying degrees of legislative autonomy to its colonies. This allowed colonial governments to enact their own laws, although the British Parliament retained the ultimate authority to repeal, amend, or replace these laws. However, after the Statute of Westminster in 1931, the self-governing Dominions were given the power to legislate independently, though nominally under the British Crown.
- Executive legislation: In some cases, the legislature delegates its law-making powers to the executive branch. This is known as executive legislation. Departments of the executive can create rules or regulations that carry the force of law. However, these rules can be repealed or altered by the legislature at any time. In India, for example, the executive has the power to make bye-laws on matters such as deciding the location of markets, setting price controls, and more.
- Judicial Legislation: Sometimes, the judiciary is granted the authority to make rules to govern its own procedures. This type of rule-making power, known as judicial legislation, is distinct from judicial precedents, where courts create new legal principles through their decisions. In India, the Supreme Court and High Courts are empowered to make such rules under Articles 145 and 227 of the Constitution. For example, the Supreme Court can set rules regarding the conduct of lawyers, procedures for appeals, and guidelines for fees and costs.
- Municiple legislation: Municipal authorities, such as local government bodies, are empowered to create rules and regulations for governing local matters like water supply, land use, urban cess, house taxes, etc. This form of subordinate legislation allows municipalities to manage the affairs within their jurisdiction through the creation of bye-laws.
- Autonomous Legislation: In some cases, the state grants private entities or institutions, such as universities, companies, or corporations, the authority to make bye-laws for regulating their internal affairs. These entities are allowed to exercise rule-making powers within the limits established by the state. For instance, the Indian Railways have their own set of rules for conducting their operations.
Conclusion
the sources of law play a pivotal role in shaping the legal landscape. They provide the framework within which societies operate, ensuring order, justice, and fairness. From the age-old customs to the meticulously drafted statutes and case law, each source has its unique contribution to the legal system. Customary laws remind us of our cultural heritage and societal norms. Statutes and legislations reflect the collective will of the people through their elected representatives, embodying the principles of democracy and governance. Case law, developed through judicial decisions, serves as a dynamic source, adapting to the changing needs and complexities of modern society. Lastly, scholarly writings and jurisprudence offer critical insights and theoretical underpinnings that guide and influence the interpretation and evolution of law. Understanding these sources not only enriches our knowledge but also empowers us to appreciate the intricate balance of tradition, governance, and judicial wisdom that upholds the rule of law. As society continues to evolve, the interaction among these sources will undoubtedly shape the future of jurisprudence and the administration of justice.
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