Sources of Law

by MOHAR89 on MARCH 12, 2010

It is very difficult, if not impossible, to give a precise definition of Law. Many renowned jurists

have held forth their own definitions of the term Law. Law, in the broadest and most

comprehensive sense means a set of rules and norms and a standard of pattern of behaviour to

which every individual of the society has to conform to. Another often quoted, although not

widely believed, definition of Law is of that given by Austin according to which Law is the

command of the ‘sovereign’.

Sources of law may be classified into Legal and Historical sources as well as Formal and Non-

formal sources. Legal sources are those which are recognized as such by law itself. Historical

sources are those sources lacking formal recognition by law. The legal sources of law are

authoritative and are allowed by the law courts as of right. The historical sources of law are

unauthoritative. They influence more or less extensively the course of legal development, but

they speak with no authority. All rules of law have historical sources but not all of them have

legal sources.cpp111

By formal sources it is meant, sources of law which are available in an articulated textual

formulation embodied in an authoritative legal document. The chief examples of such formal

sources are Constitutions and Statutes, Executive orders, administrative regulations, Ordinances,

Charters and by-laws of autonomous or semi-

autonomous bodies and organizations, treaties and certain other agreements, and Judicial

precedents. On the other hand, Non-formal sources of law are legally significant materials and

considerations, which have not received an authoritative or at least articulated formulations and

embodiment in a formalized legal document. Non-formal sources of law may be Customs or

Customary law, Standards of justice, principles of reason and considerations of the nature of

things (natura rerum), individual Equity public policies, moral convictions and social trends.

Although a formalized, authoritative source of law provides a precise and clear-cut answer to a legal

problem, non-formal sources are also not unimportant and

should not be ignored. Where a formalized legal document reveals ambiguities and uncertainties making

alternative courses of interpretation possible, the non-formal sources should be resorted to for the purpose

of arriving at a solution most conductive to reason and justice. When the formal sources entirely fail to

provide a rule of decision for a legal case, reliance on the non-formal sources becomes mandatory.

FORMAL SOURCES OF LAW

LEGISLATION

Legislation has become the commonest source of new laws or of law reforms today. It is the source of law

which consists in the declaration of acts legal rules enforceable by a competent authority. To legislate is to

make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act

of Parliament is an instance of legislation. The legislature does not confine its action to the making of rules,

yet all its functions are included in the term legislation.

Law that has its source in legislation may be most accurately termed a ‘enacted law’, all other forms being

distinguished as ‘unenacted’. The more familiar term used is, however, ‘statute law’. Blackstone and other

writers use ‘written’ and ‘unwritten’ law to distinguish between legislation and other sources of law.

Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds from the

supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or

controlled by any other legislative authority. Subordinate legislation is that which proceeds from any

authority other than the sovereign power. Such legislation is subordinate in that it can be repealed by, and

must give way to, sovereign legislation. It may also be of a derivative nature, the power to legislate having

been delegated by the sovereign to the subordinate.c

In Delegated legislation, power to bring an Act into operation; power to apply the Act; power to exempt

from or extend the scope of the Act; powers to make rules, regulations and bye-laws; power to impose

tax etc. Besides delegation, there is sub-delegation also. In sub-delegation, the agency to whom the power

is delegated in the Act may further delegate it to another agency to perform the duty.

Subordinate legislation may be delegated to the Executive. The essential function of the executive is to

conduct the administrative departments of the state. But it combines with this certain subordinate

legislative powers which have been expressly delegated by the Parliament. The statutes entrust to some

executive department the duty of supplementing the statutory provisions by the issue of more detailed

regulations bearing on the matter.

Certain delegated legislative powers are also possessed by the judicature. The superior courts have the

power of making rules for the regulation of their own procedure.

The Municipal authorities are entrusted by the law with limited and subordinate powers of establishing

special law for the areas under their control. The enactments so authorised are termed by-laws, and this

form of legislation may be distinguished as municipal.

PRECEDENTS

It is today the prevailing opinion that a decision of a court of law, particularly a court of high

authority, which explicitly or implicitly lays down a legal proposition constitutes a general and

formal source of law. It is the reason or legal principle of the case, which is known as the ratio

decidendi applied by the Doctrine of stare decisis, which forms the law for the future. A decision

is not binding because of its conclusion, but in regard to its ratio and the principles laid down

therein which is declared in the caseBachan Singh v State of Punjab.

In Krishena Kumar v Union of India, the Supreme Court has observed, “The Ratio Decidendi is

the underlying principle, namely, the general reasons or general grounds upon which the decision

is based on the test or abstract from the specific peculiarities of the particular case which gives

rise to the decision. TheRatio Decidendi has to be ascertained by an analysis by an analysis of

the facts of the case and the process of reasoning involving the major premise consisting of a

pre-existing rule of law, either statutory or judge made, and a minor premise, consisting of the

material facts of the case under immediate consideration.”

Obiter dicta on the other hand are observances of the court in the judgments passed by it.

Although it is of persuasive value, normally even an obiter dictum of the Supreme Court is

expected to be obeyed and followed.

Precedents may be classified into original and declaratory precedents. Original precedents are

those that create and apply anew rule or law, while declaratory precedents are those that merely

declare or apply the same pre-existing legal principle on a similar case. Both original as well as

declaratory precedents are equally important sources of law.

Precedents may also be classified into authoritative and persuasive precedents according to its

binding force on the lower courts. An authoritative precedent is one in which judges must follow

it whether they approve of it or not. A Persuasive precedent is one in which the judges are under

no obligation to follow, but which they will take into consideration, and to which they will attach

as much weight as it seems to them to deserve. In India, Article 141 of the Indian Constitution

says that Law declared by the Supreme Court is binding on all courts while the judgment of one

High Court of a state has persuasive authority over another High Court. Precedents are binding

only from a higher court to a lower one while persuasive authority exists only between collateral

courts or courts of the same rank. One Division Bench decision is binding on another Division

Bench of the same court. Judgment of earlier Division Bench of the High Court is binding in

subsequent proceedings of the same case.

Authoritative precedents may further be classified into absolute and conditional. Absolutely

authoritative precedents are binding on lower courts irrespective of however erroneous it may be.

Conditionally authoritative precedents are usually binding on all ordinary cases, however in one

special case its authority may lawfully be denied if the wrong and unsound nature of the law is

proved.

When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it.

Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally

deprived of all authority, and becomes null and void and a new principle is authoritatively

substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision.

However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare

of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the

case Sajjan Singh v State of Rajasthan. Where a precedent is merely not followed, the result is

the two stand side by side conflicting with each other.cSuch a situation can be solved only when

a higher authority formally overrules one of the laws and sanctions the other. The Supreme

Court is not bound by its own decisions and may overrule its previous decisions. It may overrule

them either by expressly saying so, or impliedly by not following them in a subsequent

case. Judgments are not scriptural absolutes but relative reasoning.

The binding force of the precedent may be destroyed when it is overruled by a higher authority

or if it is in opposition to a pre-existing statute or an earlier decision of a superior court. A

number of decisions on Constitutional law have been abrogated by constitutional amendments

such as the decisions in Golak Nath v State of Punjab. The binding force of the precedent may

also be weakened if a particular point of law involved in the decision is not perceived by the

court, which is known as precedents sub silentiocpp153and does not have any precedental value.

The value of the doctrine of precedent has been much debated.cpp133 Judges have been criticised

on the grounds that precedents give them the power to transform from law-implementors to law-

makers. However, it has also been argued in favour of Precedents that the practice is necessary to

secure the certainty of the law.cpp At a time of commercial development and constitutional

jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents

keeping in mind future developments.

TREATIESA treaty is an agreement entered into by countries, nations, or other legal persons recognized in

international law. If only two nations or other international persons are the contracting parties,

the treaty is called bilateral; if more than two are involved, it is usually called multilateral. The

typical legislature of a modern nation-state may pass laws which a minority of the legislators are

unwilling to approve, and these laws will bind everybody subject to the jurisdiction of the

legislating body. Norms imposed by multilateral treaties, on the other hand, ordinarily bind only

those countries which have manifested their approval by signing the treaty or otherwise adhering

to it.NON-FORMAL SOURCES OF LAW

CUSTOMCustom has an important place as a source of law. It is the most important non-formal source of

law. Custom exists as law in every country, though it everywhere tends to lose its importance

relatively to other kinds of law. Usage, or rather the spontaneous evolution by the popular mind

of rules of existence and general acceptance of which is proved by their customary observance, is

no doubt the oldest form of law making. It marks the transition between morality and law.

Custom can be described as the established patterns of behavior that can be objectively verified

within a particular social setting.

For a custom to be valid and operative as a source of law, it must conform to certain conditions

and requirements. The chief requisites of a valid custom are:-

i) Reasonableness- The most important requisite that a custom has to fulfill so as to become a

valid source of law is that it has to be reasonable. For example, the practice of Sati in India was

banned by law in spite of being a custom of the land. However, it also does not mean that the

courts of law have the liberty to disregard a custom whenever they are not satisfied of the

absolute rectitude and wisdom of it, for that would mean to deprive the custom of all its

authority. To deprive a custom of its legality, it has to be so seriously repugnant to law, that to

enforce it would cause more harm than good to the public.

ii) Immemorial Antiquity- In order to become legally enforceable, a custom has to be followed

from ‘time immemorial’. However, General customs, or customs of the realm which prevail

through the whole territory does not have such a requirement. It is the Local customs, or customs

which are limited to a special part of the realm, which, in order to become law, need to prove the

condition of having continued for a long time or time immemorial.

i) Opinio Necessitatis- Another requirement for a custom to be a valid source of law is that there

must be an ethical conviction on the part of the people following the custom that it is obligatory

and not merely optional. Mere custom itself, as such, does not have any legal authority. It

becomes legally effective only because it is the expression of an underlying principle of right

approved by its practitioners.

ii) Conformity with Statute law- A custom must be pleaded and proved to become law.

All custom which has the force of law is of two kinds, which are essentially distinct in their mode of

operation. These two kinds of custom may be conveniently distinguished as legal and conventional. A legal

custom is one whose legal authority is absolute, while a conventional custom is one whose authority is

conditional on its acceptance and incorporation in agreements between parties to be bound by it.

The term law includes ‘custom’ and ‘usages’ having the force of law.T he Indian Constitution

provides for customs and usages as sources of law in Article 13 (3) (b). In Dasharatha Rama

Rao v State of Andhra Pradesh, Das, J., said “Even if there was a custom which has been

recognized by law….that custom must yield to a fundamental right”. But personal laws, such as

Hindu Law, Mohammedan Law, are not included within the expression which has been

expounded by the courts.

STANDARDS OF JUSTICE

Standard of Justice is used in cases where there is no statutory provision for a particular case in

which the judge has to depend on his own common sense or ‘standard of justice’ or borrow the

relevant legislations from other countries so that no injustice is done to any party concerned in

the case. There are a number of judicial decisions where the courts, without any special

authorization by the positive law to decide the “unprovided case” according to considerations of

equity have granted relief to novel situations on grounds of “natural justice and reason”.

In the areas of conflict of laws, general considerations of fairness and justice have played a

particularly important part in developing this particular branch of law. Courts have also resorted

to considerations of justice in interpreting vague and ambiguous clauses in constitutional and

statutory documents.

The notion of justice has been used rather extensively by the judiciary and as played a prominent

role in the decision of controversies. It is particularly in situations where the scales are heavily

weighed on one side and where a strong need for relief is apparent that the courts are willing to

allow new claims or defences on grounds of essential justice and equity.dpp354

EQUITYEquity in its technical and scientific legal sense, means neither natural justice, nor even all that

portion of natural justice which is susceptible of being judicially enforced. It has, when

employed in the language of English Law, a precise, definite, and limited significance and is

used to denote a system of justice in a particular court. The lay notion of equity is that its purpose

is to administer justice in the particular case without regard to fixed or general rules, and indeed

to set aside rules of law when essential to do so to the ends of natural justice.

CONCLUSION

It is difficult to define law, but it is easy to define about law. Sources of law are an important facet to law as

it helps in giving a definition to law.

If a study is made of the legal systems in the world in modern times, it would be found that most of the law

is made by legislation. In some countries, especially in Common Law countries, the decisions of the

superior courts, or precedents, also form a source of law. Customs, too, play a very important parting the

framing of laws, and the rights and liabilities of individuals are determined on the basis of customs,

especially upon matters on which there are no pre-existent legislation, and no precedent to cover the

matter. Sometimes customs are abrogated by the legislation, and at other times are confirmed by their

decisions.

The judges, in passing their judgment, take help from numerous other sources of law to, juristic or

authoritative writings, foreign decisions (Standard of Justice), moral considerations and public opinion. The

law generally comes from these sources. Sources of law are the tools, methods an techniques that are

availed by the legal system in order to carry out its social goals and objectives, which is to provide justice to

the people, most effectively and adequately. Sources of law concerns itself with the methodology, modes of

reasoning and the interpretation of law, and not with the problems, principles and rules of specified law.