SOURCES OF LAW

INTRODUCTION

The nature and meaning of law have been described by various jurists. However, there is no unanimity of opinion regarding the true nature and meaning of the law.
We may classify various definitions into five broad classes

1. NATURAL SCHOOL
   Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.
   Ulpine defined Law as “the art or science of what is equitable and good.”
   Cicero said that Law is “the highest reason implanted in nature.”
   Justinian’s Digest defines Law as “the standard of what is just and unjust.”
   
2. POSITIVISTIC DEFINITION OF LAW
   According to John Austin, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as a political subject.”
   In other words, law is the“command of the sovereign”. It obliges a certain course of conduct or imposes a duty and is backed by a sanction. Thus, the command, duty and sanction are the three elements of the law.
   

HISTORICAL DEFINITION OF LAW

Historical Definition of Law Savigny’s theory of law can be summarised as follows:
– That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
– Law is not universal in its nature. Like language, it varies with people and age.
– Custom not only precedes legislation but is superior to it. Law should always conform to the popular consciousness.
– Law has its source in the common consciousness of the people.
– Legislation is the last stage of lawmaking, and, therefore, the lawyer or the jurist is more important than the legislator.

3. SOCIOLOGICAL DEFINITION OF LAW

Duguit defines law as “essentially and exclusively as a social fact.”
Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s power of constraint”.

There are three essentials of this definition.
First, in this definition law is treated as only one means of social control. Second, the law is to serve a social purpose.
Third, it is coercive in character.

4. REALISTIC DEFINITION OF LAW

According to Holmes, “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.”
According to Cardozo, “A principle or rule of conduct so established
as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

SIGNIFICANCE OF LAW

Law is not static. As circumstances and conditions in a society change, laws are also changed to fit the requirements of society. At any given point in time, the prevailing law of a society must be in conformity with the general statements, customs and aspirations of its people.

Modern science and technology have unfolded vast prospects and have aroused new and big ambitions in men. Materialism and individualism are prevailing in all spheres of life. These developments and changes have tended to transform the law patently and latently. Therefore, the law has undergone a vast transformation – conceptual and structural.

The idea of abstract justice has been replaced by social justice. The object of law is an order which in turn provides hope of security for the future. Law is expected to provide socio-economic justice and remove the
existing imbalances in the socio-economic structure and play a special role in the task of achieving various socio-economic goals enshrined in our Constitution. It has to serve as a vehicle of social change and as a
harbinger of social justice.

SOURCES OF INDIAN LAW

The sources of Law can be broadly divided into two heads.

1. Primary/Principle Sources of Law
2. Secondary Sources of Law

Primary/Principle Sources of Law

• Customs or Customary Law: Custom is the most ancient of all the sources of law and has held the most important place in the past, though its importance is now diminishing with the growth of legislation and precedent.
  The customs may be divided into two classes:
  1. Customs without sanction are those customs that are non-obligatory and are observed due to the pressure of public opinion. These are called as “positive morality”
     
  2. Customs having sanction are those customs which are enforced by the State. It is with these customs that we are concerned here. These may be divided into two classes:
     1. Legal Customs: These customs operate as a binding rule of law. They have been recognised and enforced by the courts and therefore, they have become a part of the law of land. Legal customs are again of two kinds:
        • Local Customs: Local custom is the custom that prevails in some definite locality and constitutes a source of law for that place only. But there are certain sects or communities which take their customs with them wherever they go. They are also local customs.
          
          Thus, local customs may be divided into two classes:– Geographical Local Customs – Personal Local Customs These customs are law only for a particular locality, section or community.
          
        • General Customs: A general custom is that which prevails throughout the country and constitutes one of the sources of law of the land.
          
     2. Conventional Customs: These are also known as “usages”. These customs are binding due to an agreement between the parties, and not due to any legal authority independently possessed by them. Before a Court treats the conventional custom as incorporated in a contract, the following conditions must be satisfied:
        • It must be shown that the convention is clearly established and is fully known to the contracting parties. There is no fixed period for which a convention must have been observed before it is recognised as binding.
        • Convention cannot alter the general law of the land.
        • It must be reasonable.

Requisites of a Valid Custom

A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions, namely:

1. Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, “A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is no good custom”.
2. Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
3. Reasonableness: A custom must be reasonable. It must be useful and convenient to society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.
4. Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.
5. Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.
6. Unanimity of Opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.
7. Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.
8. Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Judicial Decisions or Precedents

In general use, the term “precedent” means some set pattern guiding future conduct. In the judicial field, it means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents. Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries. This is particularly so in the case of England and other countries which have been influenced by English jurisprudence. The principles of law expressed for the first time in court decisions become precedents to be followed as law in deciding problems and cases identical with them in future. The rule that a court decision becomes a precedent to be followed in similar cases is known as the doctrine of stare decisis.

High Courts

1. The decisions of the High Court are binding on all the subordinate courts and tribunals within its jurisdiction. The decisions of one High Court have only a persuasive value in a court that is within the jurisdiction of another High Court. But if such decision is in conflict with any decision of the High Court within whose jurisdiction that court is situated, it has no value and the decision of that High Court is binding on the court. In case of any conflict between the two decisions of co-equal Benches, generally, the later decision is to be followed.

2. In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on a Smaller Bench.

3. One Bench of the same High Court cannot take a view contrary to the decision already given by another coordinate Bench of that High Court. Though the decision of a Division Bench is wrong, it is binding on a single judge of the same High Court. Thus, a decision by a Bench of the High Court should be followed by other Benches unless they have reason to differ from it, in which case the proper course is to refer the question for decision by a Full Bench.

4. The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts and has persuasive value only.

Supreme Court

The Supreme Court is the highest Court and its decisions are binding on all courts and other judicial tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India. The words “law declared” includes an obiter dictum provided it is upon a point raised and argued.

However, it does not mean that every statement in a judgement of the Supreme Court has a binding effect. Only the statement of the ratio of the judgement is having the binding force.

The expression ‘all courts’ used in Article 141 refers only to courts other than the Supreme Court. Thus, the Supreme Court is not bound by its own decisions. However, in practice, the Supreme Court has observed
that the earlier decisions of the Court cannot be departed from unless there are extraordinary or special reasons to do so (AIR 1976 SC 410). If the 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.

Kinds of Precedents

• Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one that is merely the application of an already existing rule of law. An original precedent is one that creates and applies a new rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of an original precedent, it is a law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great.

• Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. The rulings of the English and American Courts are persuasive precedents only. Obiter dicta also have only persuasive value.

• Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal source of law.

• Absolutely authoritative precedents in India: Every court in India is absolutely bound by the decisions of courts superior to itself. The subordinate courts are bound to follow the decisions of the High Court to which they are subordinate. A single judge of a High Court is bound by the decision of a bench of two or more judges. All courts are absolutely bound by decisions of the Supreme Court.

• Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances.
  The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason. In India, for instance, the decision of a Single Judge of the High Court is absolutely authoritative so far as the subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a Division Bench of the same High Court.

The doctrine of Stare Decisis

The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are 10 EP-JI&GL established”. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the stare decisis doctrine, a principle of law that has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike. This rule is based on public policy and expediency. Although generally the doctrine should be strictly adhered to by the courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine that must be applied at the cost of justice.

Ratio Decidendi

The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi. Prof. Goodhart says that ratio decidendi is nothing more than a decision based on the material facts of the case. Where an issue requires to be answered on principles, the principles which are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements is known as ratio decidendi and such principle is not only applicable to that case but to other cases also which are of similar nature. It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the obiter dictum. However, the determination or separation of ratio decidendi from the obiter dictum is not so easy. It is for the judge to determine the ratio decidendi and to apply it to the case to be decided.

Obiter Dicta

The literal meaning of this Latin expression is “said by the way”. The expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by themselves, were not strictly necessary for the decision of the particular issue raised. These statements thus go beyond the requirement of a particular case and have the force of persuasive precedents only. The judges are not bound to follow them although they can take advantage of them. They sometimes help the cause of the reform of the law.
Obiter Dicta are of different kinds and of varying degree of weight. Some obiter dicta are deliberate expressions of opinion given after consideration on a point clearly brought and argued before the court. It is quite often too difficult for lawyers and courts to see whether an expression is the ratio of judgement or just a causal opinion by the judge.

Statutes or Legislation

Legislation is that source of law that consists in the declaration or promulgation of legal rules by an authority duly empowered by the Constitution on that behalf. It is sometimes called written law as contrasted with the customary law or unwritten law.

Salmond prefers to call it “enacted law”. Statute law or statutory law is what is created by legislation, for example, Acts of Parliament or of State Legislature. Legislation is either supreme or subordinate (delegated).
Supreme Legislation is that which proceeds from the sovereign power in the State or which derives its power directly from the Constitution. It cannot be repealed, annulled or controlled by any other legislative authority.

Subordinate Legislation is that which proceeds from any authority other than the sovereign power. It is dependent on its continued existence and validity on some superior authority. The Parliament of India possesses the power of supreme legislation. Legislative powers have been given to the judiciary, as the superior courts are allowed to make rules for the regulation of their own procedure. The executive, whose main function is to enforce the law, is given in some cases the power to make rules. Such subordinate legislation is known as an executive or delegated legislation. Municipal bodies enjoy by a delegation from the legislature, a limited power of making regulations or bye-laws for the area under their jurisdiction.

Personal Law

In many cases, the courts are required to apply the personal law of the parties where the point at issue is not covered by any statutory law or custom.

In the case of Hindus, for instance, their personal law is to be found in:
(a) The Shruti which includes four Vedas.
(b) The ‘Smritis’ which are recollections handed down by the Rishi’s or ancient teachings and precepts of God, the commentaries written by various ancient authors on these Smritis.

Hindus are governed by their personal law as modified by statute law and custom in all matters relating to inheritance, succession, marriage, adoption, co-parcenary, partition of joint family property, pious obligations of sons to pay their father’s debts, guardianship, maintenance and religious and charitable endowments.

The personal law of Mohammedans is to be found in:–

(a) The holy Koran.
(b) The actions, percepts and sayings of the Prophet Mohammed which though not written during his lifetime were preserved by tradition and handed down by authorised persons. These are known as Hadis.
(c) Ijmas, i.e., a concurrence of the opinion of the companions of the Prophet and his disciples.
(d) Kiya’s or reasoning by analogy. These are analogical deductions derived from a comparison of the Koran, Hadis and Ijmas when none of these applies to a particular case.

Mohammedans are governed by their personal law as modified by statute law and custom in all matters relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship and pre-emption.

SECONDARY SOURCES OF INDIAN LAW

• Justice, Equity And Good Conscience

The concept of “justice, equity and good conscience” was introduced by Impey’s Regulations of 1781. In personal law disputes, the courts are required to apply the personal law of the defendant if the point at issue is not covered by any statute or custom.

In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as “justice, equity and good conscience”, which may mean the rules of English Law in so far as they are applicable to Indian society and circumstances.

The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good conscience. In its modern version, justice, equity and good conscience as a source of law, owes its origin to the beginning of the British administration of justice in India.

• SOURCES OF ENGLISH LAW
  • Common-Law: The Common Law, in this context, is the name given to those principles of law evolved by the judges in making decisions on cases that are brought before them. These principles have been built up over many years so as to form a complete statement of the law in particular areas.
  • Law Merchant: The Law Merchant is the most important source of the Merchantile Law. Law Merchant means those customs and usages which are binding on traders in their dealings with each other. But before a custom can have a binding force of law, it must be shown that such a custom is ancient.
  • Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor written law, but the imperative dictates of conscience and which had been set forth and developed in the Courts of Chancery. The procedure of Common Law Courts was very technical and dilatory. Action at Common Law could be commenced by first obtaining a writ or a process. The writs were limited in number and unless a person was able to bring his case within one of those writs, no action could lie at Common Law.

In some cases, there was no remedy or inadequate remedy at Common Law. The King is considered as the fountainhead of justice; when people were dissatisfied or aggrieved with the decision of the Common Law Court, they could always file a mercy petition with the King-in-Council. The King would refer these petitions to his Chancellor. The Chancellor, who was usually a Bishop, would dispose of these petitions not according to the rigid letter of the law but according to his own dictates of commonsense, natural justice and good conscience. The law so administered by the Chancellor came to be known as ‘Equity’ and such courts as ‘Equity Courts’. These ‘Equity Courts’ acted on number of maxims e.g.,

1. “He who seeks equity must do equity”,
2. “He who comes to equity must come with clean hands

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