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7/28/2019 C_IntroToLaw by SD

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Introduction to Law

Sources of Indian Law


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Meaning of Law

It means any rule of conduct, standard orpattern, to which actions are required to

conform; if not conformed, sanctions areimposed.

Oxford Dictionary: The body of ruleswhether proceeding from formal enactmentor from custom, which a particular State orcommunity recognizes as binding on itssubjects or members.


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Elements or Characteristics of

Law Law is a body of rules: These rules prescribe

the conduct, standard or pattern to which actions

of the persons in the state are required to conform. For guidance/conduct of persons: The rules

embodied in the law are made, so as to ensure thatactions of the persons in the society conform to

some predetermined standard or pattern. Law is imposed: On the members to bring about

an order in the group, enabling it to continue andprosper.


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Enforced by the executive: Unless a law is

enforced it ceases to be a law and those personssubject to it will regard it as dead.

Law presupposes a State:A state is aterritorial division, with people therein subject to

uniform system of law administered by some

authority of the State.

Content of Law:Law responds to public

opinion and changes accordingly. Therefore,amendments are made in different laws from time

to time.


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Two basic ideas involved in law: (i) To maintainsome form of social order in a group and (ii) to

compel members of the group to be within that order.

To serve some purpose which may be social,

economic or political: Law in its widest sense

may include: (i)Moral rules or etiquettes, the non-observance of which may lead to public ridicule, (ii)

Law of the landthe non-observance of which may

lead to arrest, imprisonment, etc. (i i i)Rules of

international lawthe non-observance of it may lead

to social boycott, trade-sanctions, cold war, hot war,

proxy war, etc.


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Law & Morality

One of the characteristics of law is guidance

or conduct of persons. This is so in the case

of morality also as there is a closerelationship between the two.

In fact law not only has its origin in

morality, but also is easier to enforce whenpeople yield to government for moral

reasons.


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Moral Rules

Example

Respect to

elderly peopleMoral &

Legal Rules

Examples

Murder

Stealing

Fraud

Legal Rules

Examples

Parking Offences

Exceeding Speed

limits


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Ignorance of Law is No Excuse

The maxim ignorantia juris non excusatplaces a burden on every member of the

society with the knowledge of law. He is presumed to know the legal rules. He

cannot take the plea that he did not knowthem.

He can obtain expert guidance from thosewho possess legal knowledge or from bookson law.


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Sources of Indian Law

Primary Sources: (a) Customs, (b) JudicialPrecedents, (c) Statutes (supreme & subordinate) and(d) Personal Law.

Secondary Sources: (a) English Law (common law,

equity, law merchant, statute law) and (b) Justice,equity and good conscience.

Customary Law:It is the uniformity of conduct ofall persons under like circumstances. That is, when a

particular course of conduct is followed again andagain, it becomes a custom.

A valid custom is law unless it has been overridden bylegislation. For example, the Hindu Marriage Act.


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Requisites of a Valid Custom AntiquityUsed for a very long time.

Certainty

ReasonablenessAnd not opposed to the principles ofjustice, equity & good conscience.

Continuous Observance ConformityThat is, not opposed to statute law, public

policy, and morality.

Unanimity of OpinionMust be supported by public at

large. Peaceable EnjoymentWithout dispute in law court.

ConsistencyMust not come into conflict with otherestablished customs.


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Judicial Precedents

It is based on the principle that a rule of lawwhich has been settled by a series ofdecisions generally should be binding on

the court and should be followed in similarcases.

It is the duty of the judges to follow thesame; they cannot substitute their opinions

for the established rule of law.

This is known as the doctrine ofstaredecisis. It means stand by the decision.


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Kinds of Judicial Precedents Declatory and Original Precedents

(i) Those that merely apply existing rules of law areknown as declaratory precedents.

(ii) Those that create entirely new rules of law are

known as original precedents. Authoritative and Persuasive Precedents

(i) The former is one which judges must follow whetherthey approve of it or not. Thus, the decisions of superiorcourts bind the subordinate courts.

(ii) The latter is one which the judges are not obliged tofollow but will consider where relevant.


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Statute

The statutory law or legislation is the mainsource of law. This law is created by theParliament.

In India, the Constitution empowers the

Parliament and state legislatures to promulgatelaw for the guidance or conduct of persons towhom it is, expressly or by implication, madeapplicable.

Not merely a source of new law, but is equallyeffective in abolishing that which already exists.Thus, it has what is known as Abrogative Power.


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Personal Law

Many times, a point of issue between the parties to a

dispute is not covered by any statute or custom.

In such cases, the courts are required to apply thepersonal law of the parties.

For example, The Hindu Succession Act; The

Hindu Minority and Guardianship Act; The Wakf

Act. The Muslim Personal Law Board is concerned

with statutory law and custom in all matters of

inheritance, will, marriage, etc.


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English Law

Common Law: Consists of all those unwrittenlegal doctrines embodying customs and traditions

developed over centuries by the English courts. Equity:It means natural justice. It is a body of

legal doctrines and rules emanating from the

administrations of justice, developed to enlarge,

supplement or override a narrow rigid system of

existing law of the land.


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Statute Law:It consists of the law passed by theParliament. It can pass any law it pleases and can

override its own previous Acts and decisions of thecourts.

The Merchant Law:It is based to a great extenton customs and usages prevalent among merchants

and traders of the middle ages.The Common Law was found to be unsatisfactory indealing with disputes between merchants. So themerchants developed certain rules based upon

customs and usages to govern their mercantiletransactions.

These rules were known as Lex Mercator iaor theLaw Merchant.

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