Sources of law
Several Jurists have different views on the origin and sources of law for e.g. Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. However, three major sources of law can be identified in any modern society:
ii. Judicial precedent
Customs: Custom are those long established practices or unwritten rules which have acquired binding or obligatory character. A custom, to be valid, must be observed continuously for a very long time without any interruption. Further, it must be supported by the opinion of the general public and morality. Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into two types: General Customs which prevail throughout the territory of the State and Local customs which are applicable to only a particular region.
(b) Conventional Customs: Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established conventions of that trade.
All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
- Antiquity: In order to be legally valid customs should have been in practice since time immemorial.
- Continuous: A custom to be valid should have been in practice without any kind of interruption, long intervals or disrupted practice.
- Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly.
- Reasonableness: A custom must conform to the norms of justice, public utility, rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
- Morality: A custom which is immoral or opposed to public policy cannot be a valid custom for eg. In Mathura Naikon v. Esu Naekin, ((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for immoral purposes is illegal.
Judicial Precedents : judicial precedent refers to previously decided judgments of the superiorcourts, such as the High Courts and the Supreme Court, which judges of the lower courts are bound to follow. It is an important feature of the English legal system as well as of other Common Law countries. It is only ‘Ratio decidendi’ (Reason of Decision) and not ‘Obiter Dicta’ (Said by the way) which is binding part of a precedent. In India, the doctrine of precedent is based on the concept of hierarchy of courts. The modern system of precedent developed in India during the British rule. It was the British who introduced the system of courts in India.
Under the Constitution of India, a single monolithic unified command of the judiciary has been established. The Supreme Court of India is the Apex Court in the hierarchy of courts, followed by the High Courts at the State level. Below them are the District Courts and Sessions Court.
The decisions given by the Supreme Court are binding on all the courts throughout the territory of India. While the decision given by the High Courts are binding on the subordinate courts within the jurisdiction of that particular High Court, the decisions of the High Courts are not binding beyond their respective jurisdictions. It is important to note that the Supreme Court is not bound by its previous decisions; with an exception that a smaller bench is bound by the decision of the larger bench and that of the co-equal bench.
Legislation: In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make”. The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The analytical school of jurisprudence believes the law to be a set of commands issued by a sovereign authority. This command is what is known as a statute and the process of making of a statute is known as legislation. On the other hand, the historical school believes legislation to be the “least creative” source of law. They believe that legislation only gives a proper form and structure to the customs that have been developed by the people. Salmond classifies legislation into two types:
(i) Supreme Legislation: When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control it. The laws enacted by the Parliament fall in this category, as the Parliament is considered as sovereign. In India, powers of the Parliament are regulated and controlled by the Constitution, though the laws enacted by it are not under the control of any other legislative body.
(ii) Subordinate Legislation: Subordinate legislation is a legislation which is made by any authority which is subordinate to the sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority.
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