law and its sources

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Chanakya National law University

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Law is a system of rules, usually enforced through a set ofinstitutions. It shapes politics,

economics and society in numerous ways and serves as a primary social mediator of

relations between people. Contract law regulates everything from buying a bus ticket to

trading on derivatives markets. Property law defines rights and obligations related to

the transfer and title ofpersonal (often referred to as chattel) and real property. Trust

law applies to assets held for investment and financial security, while tort law allows

claims for compensation if a person's rights or property are harmed. If the harm is

criminalized in a statute, criminal law offers means by which the state can prosecute the

perpetrator. Constitutional law provides a framework for the creation of law, the

protection ofhuman rights and the election of political representatives. Administrative

law is used to review the decisions of government agencies, while international law

governs affairs between Sovereign States in activities ranging from trade to

environmental regulation or military action. Writing in 350 BC, the Greek philosopher

Aristotle declared, "The rule of law is better than the rule of any individual."

Legal systems elaborate rights and responsibilities in a variety of ways. A general

distinction can be made between civil law jurisdictions, which codify their laws, and

common law systems, where judge made law is not consolidated. In some countries,

religion informs the law. Law provides a rich source of scholarly inquiry, into legal

history, philosophy, economic analysis or sociology. Law also raises important and

complex issues concerning equality, fairness and justice. "In its majestic equality", said

the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under

bridges, beg in the streets and steal loaves of bread." In a typical democracy, the central

institutions for interpreting and creating law are the three main branches of

government, namely an impartial judiciary, a democratic legislature, and an accountableexecutive. To implement and enforce the law and provide services to the public, a

government's bureaucracy, the military and police are vital. While all these organs of

the state are creatures created and bound by law, an independent legal profession and

a vibrant civil society inform and support their progress. A law
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The word `law` is a general term and over a period of time attained different

connotations to signify varied purposes.

Persons carrying different vocations prefer to identify `law` as to the purpose the

prescribed set of rules are intended to achieve: -

A Citizen may think of law as a set of rules, which he must obey. A Lawyer who `practices law` may think of law as a vocation. A Legislator may look at law something created by him. A Judge thinks of law as a guide and principles to be applied to making

decisions.

A Social Scientist may think of law as a means of social control. A Legal Philosopher may consider law as `dictate of reason` or `right

reasoning. It is often preceded by an adjective to give it a more precise

meaning e.g. Commercial/ Mercantile law, Civil law, Criminal law,

Industrial law, International law. In the legal sense with which we are

concerned in our study of Commercial Laws, the definition of `law`

includes all the rules and principles which regulate our relations with

other individuals and the State and which are enforced by the State .

Clause 3 of Article 13 of the Constitution of India defines `law` as under

`law` includesany

Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law;

An amendment to an existing law is also law.


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`Law` in the context of the provisions of the Constitution of India may also be

defined as It is an Act passed by the legislature and assented to by the

President of India or Governor of a State. [Arts 111 and 200 of the Constitution

of India].

The Constitution of India does not use the term 'Statute' but it uses the term 'law'.

Statute has been defined as `the written will of the legislature'.

Thus, Statute or law generally means the laws and regulations of every sort

without considering the source from which they emanate. It is because of this the

term `law` and `statute` are sometimes used interchangeably. Ignorntia juris non

excusat is a familiar maxim. This means `ignorance of law is no excuse`.

Although it is not possible for a layman to be aware of every branch lf law, yet he

must acquaint himself with the general principals of the law of the country. This

is why the knowledge of law is compulsory. The purpose of law is to maintain

justice, continuity and uniformity and impartiality. Although origins of law in any

society may be traced in antiquity, yet law is not static. As circumstances and

conditions in a society change, laws are changed to fit the requirements of the

society.

The law can be classified into the following:-

PUBLIC LAW It is that law which determines and regulates theorganization and functioning of the State. It also determines the relation of the

State with its subjects. The following laws form part of the public law: -

Constitutional law It is the basic and fundamental law of the land,which determines the nature of the State and the structure of the

Government. It may be written (as in India, USA and most other

countries) or unwritten (as in England).

Administrative law It is the law, which deals with the structure,functions and powers of the organs of the Government.

Criminal lawIt deals with various offences, and has for its object theirprevention by providing for and prescribing certain punishments for them.


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2. PRIVATE LAW - It is the law, which regulates relations of the citizens with

one another, which are of public importance. In this sense, the State through its

judicial organs adjudicates the matters in dispute between them. Private law

comprises the following fields.1

Personal laws - It is a special law applicable to a class of people. Law of propertyIt is law relating to transfer of (immovable) property. Law of obligations It is law relating to Contract; Quasi contract and

Torts

A source of law means the contents of law. The following are the sources of law:-

Custom

Legislation PrecedentThis project will deal with the above three sources of law in detail.

1The Law Lexicon,


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Introduction:-

In the early stages of the society the customs are most important, and in some

cases, the sole source of law. But with the progress of the society they gradually

diminish and legislation and judicial precedents become the main sources. In

every legal system at all stages of legal development there are some customs but

in advance societies they are more rationalized and are certain and definite.

Custom, as a source of law, involves the study of a number of its aspects which

we will study further.

Meaning:-

Custom may refer to:

Mores:Mores, in sociology, are any given society's particular norms, virtues or

values. The word mores (English pronunciation:/mrez/or /mriz/,from the Latin plural mrs; singular ms) is a plurale tantum term

borrowed from Latin, which has been used in the English language since

the 1890s.

Tradition:Tradition includes a number of related ideas:

Beliefs or customs taught by one generation to the next, often orally.For example, we can speak of the tradition of sending birth

announcements, and family traditions at Christmas.
http://en.wikipedia.org/wiki/Sociologyhttp://en.wikipedia.org/wiki/Norm_(sociology)http://en.wikipedia.org/wiki/Virtuehttp://en.wikipedia.org/wiki/Value_(personal_and_cultural)http://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Plurale_tantumhttp://en.wikipedia.org/wiki/Christmashttp://en.wikipedia.org/wiki/Christmashttp://en.wikipedia.org/wiki/Plurale_tantumhttp://en.wikipedia.org/wiki/Latinhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Wikipedia:IPA_for_Englishhttp://en.wikipedia.org/wiki/Value_(personal_and_cultural)http://en.wikipedia.org/wiki/Virtuehttp://en.wikipedia.org/wiki/Norm_(sociology)http://en.wikipedia.org/wiki/Sociology


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Beliefs, customs and practices maintained by social interaction, suchas saying "thank you", sending birth announcements, greeting cards,

etc.

Beliefs, customs and practices maintained by societies andgovernments, such as Federal holidays in the United States.

Beliefs, customs and practices maintained by religious denominationsand church bodies that share history, customs, culture, and, to some

extent, body of teachings. For example, one can speak ofIslam's Sufi

tradition or Christianity's Lutheran tradition.

Beliefs, customs and practices that are Prehistoric or have lost/arcaneorigins, such as trade, the teaching of language and education in

general.

Traditions serve to preserve a wide range of culturally significant ideas, specific

practices and the various methods used by distinct cultures. The word tradition

comes from the Latin traditionem which is the accusative case oftraditio which

means "handing over, passing on".

Convention:A convention is a set ofagreed, stipulated or generally accepted standards,

norms, social norms or criteria, often taking the form of a custom. Certain

types of rules or customs may become law and regulatory legislation may

be introduced to formalize or enforce the convention (e.g., laws that define

on which side of the road vehicles must be driven). In a social context, a

convention may retain the character of an "unwritten" law of custom (e.g.,

the manner in which people greet each other, such as by shaking each

other's hands). In physical sciences, numerical values (such as constants,

quantities, or scales of measurement) are called conventional if they do not

represent a measured property of nature, but originate in a convention, for
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example an average of many measurements, agreed between the scientists

working with these values.

Custom (law):Custom in law is the established pattern of behavior that can be

objectively verified within a particular social setting. A claim can be

carried out in defense of "what has always been done and accepted by

law."

Norms(sociology):Social norms are the behaviors and cues within a society or group. This

sociological term has been defined as "the rules that a group uses for

appropriate and inappropriate values, beliefs, attitudes and behaviors.

These rules may be explicit or implicit. Failure to follow the rules can

result in severe punishments, including exclusion from the group."2 They

have also been described as the "customary rules of behavior that

coordinate our interactions with others." The social norms indicate the

established and approved ways of doing things, of dress, of speech and of

appearance. These vary and evolve not only through time but also vary

from one age group to another and between social classes and social

groups. What is deemed to be acceptable dress, speech or behavior in one

social group may not be accepted in another. Deference to the social

norms maintains one's acceptance and popularity within a particular

group; ignoring the social norms risks one becoming unacceptable,

unpopular or even an outcast from a group. Social norms tend to be tacitly

established and maintained through body language and non-verbal

communication between people in their normal social discourse. We soon

come to know when and where it is appropriate to say certain things, to

use certain words, to discuss certain topics or wear certain clothes, and

when not to. Such knowledge about cultural norms is important for

2http://en.wikipedia.org/wiki/Norm_(sociology)
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impression management, which is an individual's regulation of their

nonverbal behavior. We also come to know through experience what types

of people we can and cannot discuss certain topics with or wear certain

types of dress around. Mostly this knowledge is derived experientially.

Origin:-

Regarding the origin of customs there are different and divergent views.

Historical jurists say that they originate from the common consciousness of

people. Some say that they come into existence due to necessity. Any particular

conduct imitated by a group of people for a long time becomes a custom. Maine,

in his theory of legal evolution, says that in the beginning the judgments of thekings under divine inspiration were the basis of customs. Many say that customs

were there in the society from the very primitive age.

Position of custom in various legal systems:-

ROMAN LAW:

We find the existence of customs in the ancient legal systems. In Roman Law,

customs played a very important part before the Code. But after the promulgation

of the Code Roman law was less sympathetic to customs. Later on, the influence

of customs was recognized in the substantive as well as the procedural law. But it

was assigned only a secondary position as compared to the legislation of the

Imperial regime. The tests laid down by the Roman jurists for recognizing a

custom as law were reasonableness and antiquity, but they did not fix any period

which must elapse before a custom is to be recognized as law.3

HINDU LAW:

Customs have been the most potent force in molding the ancient Hindu Law. The

variances in the laws given in various smritis is said to be due to their

incorporating local customs of places where they were written. Most of the laws

3Singh, M.P., V.N Shklas Constitution of India, Eastern Book Company, Lucknow, 10

thed. Pp 35
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given in the smritis and commentaries had its origin in customs. The smritis have

strongly recommended that the customs should be followed and recognized. The

various commentaries which were written on the smritis interpreted them in the

light of the local customs. Naturally they became very popular in the respective

localities and thus the school of Hindu Law emerged. The recent legislation

concerning Hindus has also saved customs at most of the places.

ENGLISH LAW:

Customs have played a very important role in molding the English Law. English

Law is known as common law. Chief Justice Coke spoke about customs as one

of the main triangles of the laws of England. But many do dont agree with this

view as Salmond says, Common Law is essentially judge made law

Classification:-

The customs in their wider sense may be divided into two classes:

Custom without sanctionThese are those customs which are non-obligatory. They are observed due

to pressure of the public opinion.

Custom having sanctionThese 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 recognized by the courts and have become a part of

the law of the land. They are enforced by the courts. These

may be divided into two classes:

a) General customs:These are those customs that prevail throughout the

territory of the state.

b) Local customs:


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By local customs is meant those customs which

apply only to a defined locality only i.e. to a district

or a town.

2. Conventional custom:These are those customs which govern the parties to an

agreement. Parties, sometimes, expressly and sometimes

impliedly agree to them. They are called usages also. Such

customs are binding not due to any legal authority

independently possessed by them, but because it has been

expressly or incorporated in a contract between the parties

to it.

There are some conditions which must be satisfied before a

court treats the conventional customs as incorporated in a

contract

(i) It must be shown that the convention is clearlyestablished and it is fully known. It implies that

both the parties were aware of such a convention.

There is no fixed period for which a convention

must have been observed before it is recognized as

binding.

(ii)Conventions cannot alter the general law of theland. Therefore they are valid only within the area

of either observance.

(iii) They must be reasonable. The main function of

these conventions is to throw light only on such

rights and liabilities of parties on which the contract

is silent. If certain conditions, or term, those

established by convention, are expressly excluded


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by the parties in the contract, they will not be

enforced.

Essentials of a custom:

Certain essentials have been laid down by the jurists which a custom must satisfy

for its judicial recognition. The essentials are as follows:

Antiquity:A custom to be recognized as law must be proved to be in existence from

time immemorial. This is the rule of English law.

Indian rule:In ancient Hindu law also, the antiquity was one of the essentials for the

recognition of custom. Manu said

Immemorial custom is transcendental law. The law in India at present is

that antiquity is essential for the recognition of a custom, but there is no

such fixed period for which it must have been existence as it is in the

English law.

Continuance:The second essential of a custom is that it must have been practiced

continuously without any interruption. In England, the custom during the

period from 1189 must have been enjoyed continuously without any

interruption. If a custom has been disturbed for a considerable time, apresumption rises against it.

Peaceable enjoyment:The custom must have been enjoyed peaceably. If a custom is in dispute

for a long time in a law court, or otherwise, it negatives the presumption


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that it originated by consent as most of the customs naturally might have

originated.

Obligatory force:The custom must have an obligatory force. It must have been supported

by the general public opinion and enjoyed as a matter of right. If a

practice was maintained by stealth or by something of that sort, it cannot

become a custom.

Certainty:A custom which is vague or indefinite cannot be recognized. It is more a

rule of evidence than anything else. The court must be satisfied by the rule

that custom exists as a matter of fact, or as a legal presumption of fact.

Consistency:Custom must not come into conflict with the other established customs.

There must be consistency among the customs. It is therefore, that one

custom cannot be set in opposition to the other custom.

Reasonableness:A custom must be reasonable. The reasonableness will not be judged with

every change in social conditions. Conformity with the statue law:

A custom to be valid must be in conformity with the statue law. It is a

positive rule in most of the legal systems that a statue can abrogate a

custom.4

4Dhyani, jurisprudence, pg. 78


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Introduction:There are legal systems where much of the development of law has been taken

place through this creative role of the judges. The English legal system is an

example of it. There, a great reliance is placed upon the decisions of the judges.

Before deciding a case the judges look into the previously decided cases of the

similar nature by their own court or by superior court. From particular cases they

deduce general rules, and apply them on the cases before them and decide them

accordingly. This is known as inductive method of making a precedent.Meaning:

In Oxford Dictionary, precedent is defined as, a previous instance or case which

is, or may be taken as an example of rule for subsequent cases, or by which some

similar act or circumstances may be supported or justified. In judicial field, it

means the guidance or authority of past decisions for future cases. Only such

decisions as lay down some new rule or principle are called judicial precedents.

Res-judicata; Justinian declaration-

In Roman law there was never any theory of binding precedents, though the

orators have included Res-judicata among the sources of law, it was not precedent

in the modern sense of the term. under the Roman system, much of the

development of law to place by the bar and not by the bench however an attempt

was always made for judicial infirmity, atleast in the procedural law due to the

following of the previous instance. But this cant be regarded as the doctrine of

precident.

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


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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 case Bachan 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. The

Ratio 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 a new 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


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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.5

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. Such 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

5B N M Trpathi, An introduction to jurisprudence, edn 5

th2006, pg 190


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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 silentio and does not have any precedental

value.

The value of the doctrine of precedent has been much debated. 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.

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.


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Doctrine of `stare decisis`

This doctrine means adherence to the earlier decision and not unsettlingthings, which are already decided.

This doctrine is based on expediency and public policy.Why precedents are recognized

The practice of following precedents is necessary to secure the certainty ofand predictability of decisions. This creates confidence in the minds of the

litigants and the administration of justice becomes fair.

Hierarchy of Courts

The general rule of doctrine of precedent as regards hierarchy of Courts isthat each Court is absolutely bound by the decisions of the Courts superior to it.

As regards higher Courts, they are, to a certain extent bound by their own

decisions.

Supreme Court This is the highest Court in India. Its decisions arebinding on all Courts within the territory of India (Article 141 of the

Constitution). The decisions of the Full Bench are binding on the smaller

Benches of the Court.

CASE EXAMPLE

In Golaknath Vs. State AIR (1967) SC 1643, the Supreme Court by a 6-Judge

Bench gave a decision that Fundamental Rights are not amendable. Six years

later, the Supreme Court in Kesavananda Bharti Vs. State of Kerala (1973) SCC

225 by a 13-Judge Bench overruled the Golaknath Case.

High Courtsthe decisions of a High Court are binding on all the Courtsbelow it, within its jurisdiction (District Courts/Court of Sessions).

Subordinate or District Courts These Courts are in districts. They arebound to follow the decisions of the higher Courts.

SOME IMPORTANT JUDICIAL DOCTRINES

ratio decidendi (reasoning behind the decision)

A decision of a Court can be seen from two aspects viz


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1. What does the case decide between the parties? and2. What principle or rule of law does it lay down? In delivering judgment the judge gives reasons for his decisions, and it is thesereasons which may be important as precedents in future cases. No two cases,

which come before the courts, are exactly alike, and to discover whether there is a

binding precedent it is necessary to establish the ratio decidendi, that is, the exact

reason or reasons for the decision.

obiter dictum (an incidental or collateral opinion by a judge)

It means an incidental or collateral opinion which is uttered by a judge whiledelivering a judgment and which is not binding. These are peripheral statements

that may be found in the main decision but which do not deal with the central

issue.

Obiter dicta are not binding, but they may be treated as of "persuasiveauthority"

CASE EXAMPLEobiter dicta

InD Cowasji & Co. Vs. State of Mysore (AIR 1975 813), the petitioner claimed

refund of a huge amount of Excise duty paid by it several years after the duty was

paid. The Court rejected the claim for refund pointing out that it would be unjustto require its refund after such lapse of time because the Government would have,

spent the amount for governmental purposes. By this decision the dispute was

settled.

But the Court went a step further and added a sentence in judgement as obiter

dicta that nor is there any provision under which the court could deny refund of

tax even if the person who paid it has collected it from his customers and has no

subsisting liability or intention to refund it to them or for any reason it is

impracticable to do so.

This observation of the Court contained an implication. Excise duty is collected

by the manufacturer from a large number of customers and paid it to the

Government. The manufacturer does not pay a pie from his pocket. If the duty


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paid by him is ordered to be refunded the beneficiary of refund would be the

manufacturer because he may not be in a position to pay back the Excise duty

collected by it to the customers. It would be impossible for the manufacturer to

trace out the customers who were in thousands or perhaps lakhs. Though the

manufacturer had claimed refund of that amount to himself no opportunity had

been given by the Court to the Government to argue on the tenability of the claim.

What obviously weighed with the judge in ordering the refund was the the

dharma of the situation. He assumed that since the excess duty was paid by the

manufacturer belonged to him. While in fact it did not belong to him. It only

unjustly enriches him.

This observation of the Supreme Court i.e. obiter dicta was noticed by many High

Courts. Taking the view that since this expression of opinion was of the highest

court of the land and should receive respect, they treated this as ratio and started

giving refund orders to a number of manufacturers. In course of time the refund

amounted to hundreds of crores of rupees. Later on, the legislature had to rectify

the situation by bringing amendments to the stature.


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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 aenacted 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.

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.


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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.

It is a law that is created by legislation Parliament or State Assembly.

Legislation is that source of law, which consists in the declaration, or

promulgation (transmission) of legal rules by an authority duly empowered by the

Constitution in that behalf.

It is some times calledjus scriptum (written law). Some prefer to call it as

`enacted law`.

In modern times, `legislation` is the most important source of law in all the

countries.

Types of Legislation

1) Supreme Legislation

A legislation is said to be supreme when it proceed from the supreme or

sovereign power in the State Parliament or the State Legislature- and isincapable of being repealed, annulled or controlled by any other legislative

authority.

However - any law which takes away or abridges the Fundamental

Rights conferred by Part IIIand any law made in contravention of this clause


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shall, to the extent of the contravention, be void [Article 13(2) of Constitution of

India].

2) Subordinate Legislation

Legislation is said to be subordinate when it proceed from any authority

other than the supreme or sovereign authority in the Sate. It is made under the

powers delegated to it by the supreme authority.

There are 5 forms of subordinate legislation:

(i)ExecutiveThe rule making power under of the Statues is conferred on the executive

(i.e. the branch of the government that executes the laws or runs the

administration).

(ii)Judicial The judiciary has powers to frame rules for the regulation of their

procedures and administration.

(iii)Municipal

Municipal bodies are delegated powers by the Act, which brings them

into existence to frame rules, and by-laws for the area under their jurisdiction for

carrying on various activities entrusted to them.

(iv)AutonomousThe autonomous bodies, like Universities, are given power by the State to

make rules and by-laws for their administration.

(v)ColonialThe laws of the countries which are not independent or which are the

control of some other State, are subject to the supreme legislation of the State

under who control they are.

IV. PERSONAL LAW

Sources of Hindu law

(a) the `Shruti` (what is heard). This includes the four Vedas (Rig Veda, Yajur

Veda, Sama Veda and Atharva Veda);


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(b) the `Smriti` (what is remembered ). The main three smritis are: the codes of

Manu, Yajnanavalkya and Narada.

The Statutes codifying the Hindu law enacted post independence era include (a)

The Hindu Marriage Act 1955 (b) The Hindu Succession Act 1956 (c) The Hindu

Minority and Guardianship Act 1956 and (d) The Hindu Adoptions and

Maintenance Act 1956.

Sources of Mohammedan Law

(a) The Koran (voice of God; paramount authority) (b) The Hadis (actions and

sayings of the Prophet) (c ) ijma (opinions of companions of Prophets) (d) Qaiiyas

(reasoning by analogy) (e) Digests and commentaries on Mohammedan Law

(compiled by command of Aurangzeb, the Mughal Emperor).

The Statutes enacted post independence include (a) the Wakf Act 1954 (b) The

Muslim Women (Protection of Rights on Divorce) Act 1986.

(B) SECONDARY SOURCES OF INDIAN LAW

(1) JUSTICE, EQUITY AND GOOD CONSCIENCE

In the absence of any rule of specific law, usage or custom or personal law

on a particular point arising before the Courts, the Courts apply the doctrine of

justice, equity and good conscience which means in substance and in

circumstances the rule of English law as applicable to Indian society and

circumstances.


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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 lawconcerns itself with the methodology, modes of reasoning and the interpretation

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

Therefore, it is proved that there are primarily three sources of law which

are custom, precedent and legistlaton. Custom is something that has been

followed a particular community for a long period. Precedents are the judge made

laws. In the present society judges not only interpret laws and give judgments but

they also make laws and apply laws that are necessary and they follow those laws

in the future cases. Legislation are the rules and regulations made or enacted by

the parliament of the country or the state or the sovereign. All these laws are

binding on the citizens of a country.


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Books:-

Paranjape, N.V, Jurisprudence on Legal Theory, Edn. 5th

, Central Law Agency,

Allahabad, 2010.

Dhayani,S.N, Jurisprudence and Indian Legal Theory, Edn. 4th

, Central Law

Agency, Allahabad, 2006.

Tripathi,B.N.M, An Introduction to Jurisprudence, Edn. 18th

, Central Law

Agency, Allahabad, 2008.

Sites:-

http://www.slideshare.net/robinkapoor/chapter-01-sources-of-law-presentation

http://www.aseanlawassociation.org/papers/Brunei_chp2.pdf

http://lawandotherthings.blogspot.com/2010/11/sources-of-law.html
http://www.slideshare.net/robinkapoor/chapter-01-sources-of-law-presentationhttp://www.aseanlawassociation.org/papers/Brunei_chp2.pdfhttp://www.aseanlawassociation.org/papers/Brunei_chp2.pdfhttp://www.slideshare.net/robinkapoor/chapter-01-sources-of-law-presentation

law and its sources

Documents