Sources of Law

INTRODUCTION

There are several sources from which we obtain what we know to be law. In layman’s words, law is nothing more than a system of rules and regulations that we as a community agree to obey so that we do not infringe on the rights of others and can protect our own. The right to exercise one’s right ends when it infringes on the right of another. The fear that people felt when the notion of property and ownership was introduced was removed with the aid of law, which established three organs: the legislative to draught legislation, the executive to administer it, and the judiciary to arbitrate on disputes. These organs work in unison and must avoid interfering with fields reserved for another organ. While intervention is necessary to maintain checks and balances, it must be done with good intentions.

Sources of law

  • Legislation
  • Customs
  • Judicial Precedents
  • Justice, Equity And Good Conscience
  • Conventional Law
  1. Legislation as one of the sources of law-

The term “legislation” is derived from the Latin words “legis” (regulation) and “latum” (making). In India, legislation is regarded as the major source of law. Legislation has a broad scope and is used to regulate, allow, enable, give funding, prescribe, sanction, award, declare, or prohibit. The legislature is created by the parliament in the form of new acts, new laws, repeal and change of existing laws. The mechanism for this is outlined in India’s constitution.

As a result, legislation as a source of law is further separated into two parts:

Supreme legislation: This is the parent law that stems from the nation’s sovereign power. It cannot be repealed, revoked, or regulated by other legislative bodies.

Subordinate Law: The legitimacy and existence of subordinate legislation is reliant on the supreme legislation.

  • Customs as one of the other source of law

Customs is a well-established social behaviour within a group. It is one of India’s most important and oldest legal sources. Customary rules, according to Roscoe Pound, include:

  • 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:
  • Antiquity
  • Continuous
  • Obligatory in nature
  • Consistency
  • Reasonability
  • Peaceful Enjoyment
  • Certainty
  • Judicial Precedents is another one of the most important source of law in India-

Judicial precedents are based on the doctrine of’stare decisis,’ which simply means adhering to and relying on previous decisions made by the courts; for example, if the high court decides on a particular case and a similar situation comes before the lower court, the lower court will treat the case similarly and pass the same judgement as the high court. This is because the Supreme Court has established a precedent for the subordinate courts to follow.

The lower bench’s decisions can always be overridden by the upper bench by providing good grounds. In Union of India vs. K.S. Subramanium[3] – AIR 1976 SC 2435- When there was a contradiction in the decision of the same court’s benches, the bigger bench’s decision was followed.

Key principles of judicial precedent

  • Consistency 
  • Hierarchy
  • Bound by their own decisions 
  • Justice, Equity And Good Conscience

This principle is applied only in cases where the judges feel that the law seems to be inadequate or out of date or unjust. In such cases the judges make decisions based on equity, good conscience, fairness and justice using their commonsense. 

  • Conventional Law – International Treaties/Agreements /Conventions

With the advent of globalisation, there has been an increased necessity for world countries to engage with one another, which implies that world countries must be governed by a common set of rules. Such laws are created by treaties, accords, and other means, and they are harmonised by the United Nations. Countries that are members of the United Nations must adopt the organization’s rules or norms and comply by such statutes or regulations, as well as establish legislation in accordance with such guidelines. As a result, international conventions play a significant role in drafting new laws or amending current ones.

CONCLUSION

Source of law must not be construed as the authority sanctioning or enforcing a law. It should mean the agency from which the law originates, or can say from where the rule of action has come into existence.

REFERENCE

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