Sources Of Law- Part 1

Sources of Law

1.         Legislative.

2.         Precedents.

3.         Customs.

4.         Opinion juris (statutory interpretation and preparatory works).

5.         Justice equity and good conscience.

Sources of law means the origin from which rules of human conduct come into existence and derive legal force or binding characters. It also refers to the sovereign or the state from which the law derives its force or validity. Several factors of law have contributed to the development of law. These factors are regarded as the sources of law.

Legislation

Legislation is that source of law which consist in the declaration of legal rules by a competent authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and cancels existing laws in all countries. In modern times this is the most important source of law making. The term legislature means any form of law making. Its scope has now been restricted so a particular form of law making. It not only creates new rules of law it also sweeps away existing inconvenient rules.

Types Of Legislation

1. Supreme legislation. 2. Subordinate Legislation.

1.         Supreme legislation: Supreme legislation is the expression of the legislative will of a supreme authority in a state. It is supreme because no authority can annual, modify or control it. It proceeds from the sovereign or supreme legislative power in the state, and which is therefore, incapable of being abrogated by any other legislative authority.

2.         Subordinate legislation: Subordinate legislation is that which proceeds from any authority other than the sovereign legislation power, and is, therefore, dependent for its existence or validity on some superior or supreme legislative authority. It comes from a subordinate legislature or any authority and is subject to the repealing or sanctioning control of a superior legislation.

In England all form of legislative activity recognized by law, other than the power of parliament are subordinated and subject to parliamentary control.

Types of subordinate legislation

The chief forms or types of subordinate legislation are five in number. These are:

1.         Colonial legislation: It means legislation by the legislature of the colonies or other dependencies. The parliament can repeal, alter or supersede any colonial enactment.

2.         Executive legislation: Though the main function of the executive is to enforce laws, but in certain cases, the power of making rules is delegated to the various departments of the government, which is called subordinate delegated legislation.

3.         Judicial legislation: It means rules of procedure made by superior courts for their own guidance under authority delegated to them for the purpose. In other words the superior courts have the power of making rules for the regulation of their own procedures.

4.         Municipal legislation: Sometimes municipal authorities are provided with the power of establishing special laws for the districts under their control. They are allowed to make bye-laws for limited purposes within their areas. These are legislation of local bodies such as municipal or corporations.

5.         Autonomous legislation: It is the process of law making by persons not by the state for their own guidance. Legislation thus made by private persons and the law created may be distinguished as autonomic view. These are autonomous bodies like municipal councils, universities etc.

Precedent

Precedent is one of the sources of law. The judgements passed by some of the learned jurists became another significant source of law. When there is no legislature on particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a similar nature and they are called precedents.

The dictionary of English law defines a judicial precedent as a judgement or decision of a 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. Precedent is more flexible than legislation and custom. It is always ready to be, used. Precedent is otherwise called case law judicial decision judge made law it is the sources of law. It enjoyed a high authority precedent plays a vital role when law is unwritten English common law is based on precedent.

Kinds of precedent

1.         Authoritative precedents or absolute precedent: whether judge approve it or not this kind of precedent must be followed.

2.         Conditional precedent: The judge may disregard either by dissenting or by over ruling it known as conditional precedent.

3.         Persuasive precedents: Judges have no obligation to follow can take into consideration. Precedent of other court i.e. Foreign court.

Theories of precedent

1.         Declaratory theory: Declaration of existing law by the judges is known as declaratory theory. Judge only declare the existing law.

2.         Original precedent theory: Law making by the judge known as original precedent theory judge are the law makers the role of judge is creative particularly when the law is absent.

Principles of precedent

1.         Ratio decidendi Reason for the decision – An authoritative principle of a judicial decision. It contains the principle of law formulated by a judge, it is essential for the decision of a case. It has force of law and binding on the courts.

Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a particular case. Bridges v. Hawkeshworth, Customer found money on the floor of a shopping complex both customer and shopkeeper claim that money. Court treated shop as a public place and applied rule finder keeper and it favoured the customer. Here the ratio decidendi is the finder of goods is the keeper principle.

2.         Obiter dictum Something said by the judge, does not have any binding authority. Judge may declare some general principles relating to law but that may be unnecessary and irrelevant to the issues before him. Those unnecessary statements of law which lay down a rule is called Obiter dictum.

3.         Stare decisis: Means let the decision stand in its rightful place. During 17th century a progress made in the law reporting system. Reporting of the decisions of the court Act to stare decisis a principle of the law which has become settled by a series of decisions is generally binding on the courts and should be followed in similar cases. It is based on expediency and public policy.

4.         Prospective overruling: Reversing the lower court’s decision by Supreme Court can overrule their own earlier decisions by another bench of judges consisting of more number of judges than previous one. It is a modern trend which enables the court to correct its errors without affecting its past transactions.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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