CONCEPT OF ‘SOURCE OF LAW’:
The term ‘Source of Law’ is used in different senses. Therefore, it is necessary to distinguish between its various meanings and determine its precise connotation. The general meaning of the word ‘source’ is ‘origin. There is difference of opinion among the jurists regarding the source of law. Since the origin, growth and basis of law has been different in different stages of social development, different jurists have pointed out different sources as more authoritative. Therefore, the sources of law have been subjected to various definitions and classifications.
Austin gives it the meaning of foundation of law as the king is the foundation of justice and therefore is the immediate practical source of law. It also is used to mean the authoritative texts which are the basis of juristic and doctrinal development of traditional element of a legal system.
According to Salmond, sources of law can be classified as either legal or historical. The former are those sources which are recognized as such by the law itself.
SOURCES OF LAW:[i]
According to Roscoe Pound, sources of law imply the factors to which legal precepts owe their content, the agencies that develop them and formulate them as something behind which the law making and law administrating authorities may put the power of state behind them. According to Pound, there are seven sources of law. Such as —
- USAGE: Usage may be taken up by the legislature or courts and stamp it as authority of law. Usages of business and merchants have long been recognized as a source of law. Lex Mercatoria or Law Merchant has been a great source of negotiable instruments and banking law.
- RELIGION: Religion is a great source of law for early stages of legal development and in some societies, it continues to play a great role even in modern times. Hindu and Muslim religions have been the source of law for both Hindu and Muslim communities throughout the world.
- MORAL AND PHILOSOPHICAL IDEAS: Moral and Philosophical ideas especially in equity and natural law have been responsible for not only for the growth of new ideas but have left indelible impressions on law and legal institutions. Equity and natural law have led to the notion of just and fair law.
- ADJUDICATION: Adjudication either by courts or by tribunals both in civil or common law has been an indisputable source of law. In civil law, decisions arrived at in a certain way become a form of law. Similar is the case with the common law as judicial decisions of the superior courts are a source of law which very often is referred as judicial precedent.
- SCIENTIFIC DISCUSSIONS: Scientific discussions are of great importance as the juristic and text book writings may be accepted and acknowledged by legislators and judges in formulating their opinions on a point of law. English and Indian judges have frequently referred to text writers such as Winfield on Torts, Lindley on Partnership. and Salmond on Jurisprudence, etc.
- LEGISLATION: Legislation is the direct and immediate source of law and is a basis for further development by commentaries and judicial decisions.
- CUSTOM: Custom as a source of law has been used to include – law
formulated through custom of popular action, law formulated through custom of judicial decisions, and law formulated by juristic wrings and scientific discussion. Customary law in several legal systems had a predominant impact on the development of law and legal institution
CUSTOM AS A SOURCE OF LAW:
Custom is a habitual course of conduct observed uniformly and voluntarily by the people concerned. When people find any act to be good and beneficial, which is agreeable to their disposition, they practice it and a course of time by frequent observance and on account of its approval and acceptance by the community for generations, a custom evolves.
According to Holland, custom is a generally observed course of conduct.
KINDS OF CUSTOM:
- Legal custom
- Conventional custom
PRECEDENT AS A SOURCE OF LAW:
Judicial precedent or stare decisis is an independent source of law, is not as ancient as custom and as modern as legislation. In fact, the doctrine of judicial precedent is a unique feature of English law as also as also of the common law countries. Judicial precedent when speaks with authority. the embodied principle becomes binding for future cases and it thus becomes a source of law. It is the guidance or authority of past decisions for future cases. Some precedents may also be creative of law for the principles which they embody may be original and so new to the legal system. A judicial precedent is purely constitutive in nature and never abrogative. It can create law but cannot alter it. Doctrine of precedent was evolved towards a necessary fulfilment of the goal of law viz. stability, certainty and continuity.
KINDS OF PRECEDENTS:
- Declaratory or original precedents
- Persuasive precedent
- Absolute authoritative precedent
- Conditionally authoritative precedent
LEGISLATION AS A SOURCE OF LAW:
In modern times legislation is considered as one of the most important sources of law. Legislation or legislative law making in the modern democratic societies especially of federal types, is highly complex. The formula as conceived by Austin that law is a command of the sovereign backed by sanction and his distinction between superior and inferior may be to some extent applicable but in democratic countries, the legislation and legislative process is an admixture of constitutionally authorized initiatives on the one hand and social forces on the other. In democratic societies including India, legislators are representatives of electors who invest them with authority to make laws for them. Law that has its source in legislation may be most accurately termed as enacted law; all other forms of law are ‘un-enacted’. When we use the term ‘legislation as a source of law, we mean law making by a defined person or body and not customary or conventional law or judicial decisions.
KINDS OF LEGISLATION:
- Supreme legislation
- Subordinate legislation. The five sub categories of it are:
- Local or municipal
[i] BABU SARKAR, LEGAL METHOD & LEGAL RESEARCH METHODOLOGY 44-96 (Moon Law Agency 2014).
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