Before describing sources of law let us understand the general meaning of law. Law is a set of rules and regulation which is essential for the administration of justice. It plays a significant role in maintaining peace and order in society. It is prerequisite for the maintenance of discipline in society. A society is bounded by social norms which is in the form of law. The society without social system and the state without legal application would collapse. Hence, law has been practiced through different legal sources.
DIFFERENT SOURCES OF LAW
Sources of law usually deals with the origin of law. There are mainly 3 sources of law :
LEGISLATION AS SOURCE OF LAW
Legislation is one of the most important sources of law in modern society. It means that laws are made by the competent authority that can be parliament. Laws enacted by the parliament can be visible in the form of bare acts and statues.
The legislation is considered as a primary source of law in India, legislation has a wide ambit and it is used to regulate, authorize, to enable, to provide funds, to prescribe, to sanction, grant, declare or to restrict. The legislature is framed by the parliament in the form of new acts, new laws, repeal and amendment of old laws. The procedure for this is prescribed in the constitution of India.
So legislation as one of the source of law is further divided into two parts :
Supreme legislation: It is the parent law that originates from the sovereign strength of the nation. It cannot be repealed, annulled or managed by other legislative authorities .
Subordinate Legislation: The subordinate legislation is dependent on the supreme legislation for their validity and existence.
CUSTOM AS SOURCE OF LAW
Custom occupies an important place in regulation of human conduct in almost all the societies. A custom may be defined as a continuing course of conduct by which we express the approval of the community .According to Manu, the roots of custom as a source of law in ancient India is governed by specific rules.
Customs is an established mode of social behavior within a community. It is one of the main and oldest sources of law in India. According to Roscoe Pound, customary regulations comprises: Law formulated by customs of famous motion
Law formulated through judicial choice
Law formulated with the aid of doctrinal writings and clinical discussions for legal standards
Ingredients of customs as one of the sources of law in India:
Obligatory in nature
PRECEDENT AS SOURCE OF LAW
Judicial Precedents lays on the doctrine ‘stare decisis’, it simply means adhering and relying on earlier decisions made by the courts; i.e., for instance if high court decides on a particular case and a similar situation comes to the lower court, the lower court will treat the case alike and pass the judgement same as done by the high court. This is because the high court has set a precedent for the lower court and the lower courts are bound to follow it.
The decisions of the lower bench can always be overruled by the higher bench by giving valid reasons. In Union of India Vs K.S. Subramanyam[- AIR 1976 SC 2435- In this case when there was an inconsistency in the decision between the benches of the same court, the decision of the larger bench was followed.
Sources of law helps us to understand the importance of jurisprudence. Legislation is necessary to maintain law and order in the society. It is one of the most reliable as well as authentic sources of law. Custom and usages are not law when they arise, but they are largely adopted into the law by the state. Every developed legal system has a judicial organ. The main function of this body is to adjudicate the rights and duties of the citizens. Earlier, in this adjudication, the courts are guided by customs and their own sense of justice. There are many sources from where we can derive what we know to be law. Law in layman’s terms is nothing but a set of rules created and enforced by the courts. Judicial precedent or decision is the primary source of law. Thus, it is a process which is followed by the judge’s to take decision.
- Paranjape . N. V. , Studies In Jurisprudence And Legal Theory
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