LEGAL METHOD AND INTRODUCTION

TO LEGAL SYSTEM

MODULE 2
SOURCES OF LAW

MR. ARINDAM NERAL

ASSISTANT PROFESSOR OF LAW
TOPICS:
• Meaning;
• Primary and Secondary Sources;
• Custom: Definition, Essentials, Types; Custom - Requisites of a valid
custom
• Precedent-- Definition, Essentials, Types- Binding force of custom
Precedent - The Doctrine of Stare Decisis - Ratio Decidendi, Obiter
Dicta - Kinds of Precedent - Circumstances which destroy or weaken
the binding force of precedent –
• Legislation -Definition, Essentials, Types- Supreme and Subordinate
legislation- Advantages of legislation over precedent and vice –versa
 SOURCES OF LAW: MEANING
• There are various sources of law.

• One must know as to what are the sources of law and on which of
the sources one can rely upon for justice. It is very important to
understand that the law of every land is derived from the sources so
one has to know what are the sources of law before getting into any
concept of law.

• The meaning of the term “sources of law” differs from writer to

writer.

• Prof. Fuller, in his “Anatomy of the Law”, states that a judge

interprets and applies certain rules to decide upon a case. Such rules
are obtained from various places which are known as “sources”.
• The positivists use the term to denote the sovereign or the State
who makes and enforces the laws.

• The historical school uses the term to refer to the origins of law.

• Holland has defined the term to mean the sources of the

knowledge regarding law.

• The three main sources of law as recognized in jurisprudence are

Legislation, Precedent and Custom.
 SALMOND’S CLASSIFICATION OF SOURCES OF LAW

According to Salmond, there are two main sources of law:

1. Formal Sources: Formal sources are those from which law derives
its validity and force, that is, the will of the State which is
expressed through statutes and judicial decisions.

2. Material Sources: He sub-divided the material sources into legal

sources and historical sources. Legal sources comprise of
legislations, precedent, custom, agreement and professional
opinion. They are authoritative in nature

Historical sources are those which are originally found in an

unauthoritative form and are subsequently admitted and
converted into legal principles. It is the religious belief, local
customs, opinion of jurists and historical development.
 PRIMARY AND SECONDARY SOURCES

PRIMARY SOURCES:
Primary sources of law are basically legislative and case laws which
comes from the official bodies. The legislative branch creates laws
that are passed and published as acts or statutes. Primary sources
of law includes constitutions, statutes, regulations, treaties and
decisions of courts and tribunals.

SECONDARY SOURCES:
Secondary sources of law are considered as
the background resources. They illustrate, describe and they
evaluate and analyze. They organize and explain the primary law to
make it more accessible and understandable. They are not law and
they are not binding on any court. They comprise of the
encyclopedias, law reviews, restatements and law journals.
 CUSTOM
• Customs is considered to be the oldest source of law.

• In ancient times, there were no codified laws to regulate society.

Instead, there existed customs which comprised of acts which have
been done so repeatedly that they are spontaneously followed by
all.

• Custom is the rule of action voluntarily and uniformly observed by

the people. It embodies a rule of conduct approved and accepted
by the community for generations.

• The customs made by the people were considered to be the law of

the land.
With the passage of time, it was recognized that the customs are
vague and uncertain.
This issue was resolved by formal recognition of customs by the
sovereign. This is how customs got converted into law.

BINDING FORCE OF A CUSTOM:

There are many reasons why custom is given the force of law:

1. Acknowledge and approved by the public opinion of society at

large.
2. Expectation of continuance in future.
3. Followed by large number of people.
4. Interest of the society.
5. Makes codifying easier and safer by providing material and
direction.
 KINDS OF CUSTOM

Customs are of two kinds - Legal and Conventional.

1) Legal Custom -
A legal custom is one the authority of which is absolute, one
which in itself has the force of law. It is binding as a rule of law
independently of any agreement between the parties.

Legal Custom is again of two kinds being either local, prevalent and
having the force of law in a particular locality only, or general having
the force of law throughout the state.
2) Conventional Custom -
A Conventional Custom it is also known as usage, on the
other hand, is conditional on its incorporation in agreements
between the parties to be bound by it.

It is binding, not because of any legal authority but due to an

agreement between the parties. It operates as an established the
rule in some particular sphere of life, and is incorporated expressly
or impliedly as one of the terms in a contract between the parties
concerned.

When two parties enter into an agreement, they do not put down
in black and white all the terms of the contract. The expressed
terms of the contract are merely framework which becomes
complete only when we take into consideration the implied terms.
And the intention to the parties can be gathered from the
customary law.
REQUISITES OF A VALID CUSTOM:

For getting recognition as law, custom must satisfy the following

conditions:

(i) Immemorial antiquity

(ii) Reasonable
(iii) Continuity
(iv) Peaceable
(v) Certainty
(vi) Observance as of right,
(vii) Consistency with other customs
(viii) Not opposed to public policy
(ix) Conformity with statute law.
 PRECEDENT
• Judicial precedents are regarded as an important source of law in
almost all legal systems especially the systems based on common
law.

• Judicial precedent is the source of law where past decisions

create law for Judges to refer back to for guidance in future cases.
A binding precedent is where previous decisions must be followed.

• According to Gray, ‘precedent covers everything said or done,

which furnishes a rule for subsequent practice.’

• According to Salmond, ‘in a loose sense, it includes merely

reported case law which may be cited & followed by courts.’
• Keeton defines judicial precedent as a judicial decision with some
amount of authority attached to it. This authority is because of two
reasons.

Firstly, the judges occupy a high status- politically as well as socially.

Secondly, the nature and the importance of the issues that they decide
upon attach some amount of authority to their decisions.
KINDS OF PRECEDENT:
Judicial precedents can be classified into the following kinds:

1. Authoritative and Persuasive - An authoritative precedent is a

judicial precedent which is binding upon the court. They are
considered to be the legal sources of law. A persuasive precedent is
one which is simply taken into consideration while deciding upon a
decision and is not, in any way, binding upon the court to follow.
Persuasive precedents are considered to be historical sources of law.

2. Absolute and Conditional - Absolute and conditional

precedents are both authoritative in nature. Absolute authoritative
precedents are supposed to be followed by the court without
question. Whereas, conditional authoritative precedents may not be
followed in certain special circumstances. The special circumstances
are when the decision is found to be contrary to law and reason.
3. Declaratory and Original - Declaratory precedents are those
precedents which rule upon an existing rule of law. There already
exists a settled principle of law on the issue which the courts need
to apply. An original precedent is one where there exists no such
settled principle and the court itself creates such a principle through
its decision. The authoritative value of both, declaratory and original
precedents is equal.
 DOCTRINE OF STARE DECISIS

• The principle by which judges are bound to precedents is known as

Stare Decisis which is a Latin phrase with the literal meaning “to
stand by the things that have been decided”.

• The Doctrine of Stare Decisis obligates courts to look to precedents

when making their decisions. These decisions/precedents becomes
an example, or authority, for judges deciding similar issues later.

• Under the doctrine courts adhere to precedent on questions of law

in order to insure certainty, consistency, and stability in the
administration of justice with departure from precedent permitted for
compelling reasons (as to prevent the perpetuation of injustice).
 OBITER DICTA
• Obiter dictum is the Latin phrase meaning “other things said”, that is, a
remark in a judgment that is “said in passing”. It is a concept derived
from English common law, whereby a judgment comprises only two
elements: Ratio Decidendi and Obiter Dicta.

• For the purposes of judicial precedent, Ratio decidendi is binding,

whereas obiter dicta are persuasive only. However, obiter dicta of the
Supreme Court are binding on all courts and Tribunals within the territory
of India (Municipal Committee, Amritsar V/s Hazara Singh).

•A judicial statement can be ratio decidendi only if it refers to the crucial

facts and law of the case. Statements that are not crucial, or which refer
to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter
dicta are remarks or observations made by a judge that, although
included in the body of the court’s opinion, do not form a necessary part
of the court’s decision.
 RATIO DECIDENDI
• Ratio Decidendi is a Latin phrase meaning ‘the reason’ or ‘the
rationale for the decision’. Ratio Decidendi literally means ‘reason
for deciding’.

• The Ratio Decidendi is ‘the point in a case that determines the

judgement’.
In the judicial context, it is the reason which is cited for arriving at
a decision in a case. Such reason is not the law that is getting
attracted in the contemporary case but is the necessary notion
which helps the court arrive at a particular decision.

• It is this part of the precedent which has to be followed by the

courts in subsequent decisions but not the general observations of
the court.

• Commissioner of Income Tax vs M/s Sun Engineering Works

CIRCUMSTANCES WHICH WEAKEN THE BINDING FORCED OF PRECEDENT

• Abrogated decisions – A decision ceases to be binding if a statute

or statutory rule inconsistent with it is subsequently enacted, or if it
is reversed or overruled by a higher court.

• Affirmation and Reversal on a Different Ground – A decision is

affirmed or reversed on appeal on a different point.

• Ignorance of Statute – A precedent is not binding if it was

rendered in ignorance of a statute or a rule having the force of
statute i.e. delegated legislation. A court may know of existence of
the statute or rule and yet not appreciate in the matter in hand.
• Inconsistency with Earlier Decision of Same Rank – A court is
not bound by its own previous decisions that are in conflict with one
another.

• Precedent sub silentio or not fully argued – When a point is

not involved in a decision is not taken notice of and is not argued by
a counsel, the court may decide in favour of one party, whereas if all
the points had been put forth, the decision in favour of one party.
Hence, such a rule is not an authority on the point which had not
been argued and this point is said to pass sub silentio.
 LEGISLATION AS A SOURCE OF LAW

• The term ‘legislation’ is derived from two Latin words i.e.

‘legis’ and ‘latum’ where the former means ‘law’ and later means
‘to make’. So, it literally means making or setting of law.

• Legislation is an expression of the general will of the people and is

one of the main functions of the government, carried out for the
purpose of authorising, regulating, sanctioning, granting, declaring,
restricting etc.

• In contemporary era, legislation is considered as the significant

source of law.
 DEFINITIONS

• According to Salmond: “Legislation is that source of law which

comprises in the assertion of lawful standards by a competent
specialist.”

• According to Austin: “Legislation is the command of the

sovereign or the superior authority which must be followed by the
common masses backed by sanctions”.

• According to Gray: “Legislation implies the formal expression of

the administrative organs of the general public.”
 KINDS OF LEGISLATION

• In enacting any legislation and the rule of law, the welfare of the
citizens must be kept in mind and therefore, it is must be adopted
in the best interests of the citizens.

• Some different types of legislation are as follows:

1. Supreme Legislation
2. Subordinate Legislation
a. Municipal Legislation
b. Executive Legislation
c. Autonomous Legislation
d. Judicial Legislation
1. Supreme legislation - Supreme Legislation is that legislation
that is made by the sovereign authority of that state. It cannot
be repealed, or controlled, or amended by any other authority
except the one from which it proceeds. It is enacted by the
highest law-making body. In the case of India, this is the
Parliament. All Acts of Parliament are thus, supreme legislation.

2. Subordinate legislation - Subordinate Legislation is that

which proceeds from any other authority other than the
sovereign power. It is made by an entity under a power
delegated to the entity by the Parliament and is also known as
Delegated Legislation. It is necessary for legislative power to be
delegated because it saves the Parliament from undue pressure;
it saves time and also allows for swift action to be undertaken in
cases of emergency. There are four kinds of subordinate
legislation that can be understood as follows:
• Municipal Legislation - The Municipal Authorities in every district
are given certain powers to enact laws and policies for their district.

• Executive Legislation - The Executive consists of the President,

Prime Minister, Governor, and other officers who are closely
associated with the working of the administration of the State.

• Autonomous Legislation - Autonomous Legislation is that

legislation which is made by organizations for their internal
functioning. So, universities may make rules for themselves to
conduct examinations.

• Judicial Legislation - The judiciary is given certain powers to

regulate their own internal procedure.
 ADVANTAGES OF LEGISLATION OVER
PRECEDENT
• Abrogative Power: Legislation is both constitutive and
abrogative whereas precedent merely possesses constitutive
efficacy. Legislation is not only a source of law, but it is equally
effective in amending or annulling the existing law.

• Efficiency: Legislation allows an advantageous division of labour

by dividing the two functions of making the law and administering
it.

• Declaration: Justice demands that law should be known before

they are applied and enforced by the law courts.
• Provision for future cases: Legislation can make rules in
anticipation for cases that have not as yet arisen, whereas
precedent must wait for the occurrence of some dispute before the
court can create any definite rule of law.

• Form: Legislation is superior in form. It is brief, clear, easily

accessible and understandable, whilst valuable part of case law has
to be extracted from a ton of dross. One has to wade through the
whole judgment before the ratio decidendi can be found out or case
law discovered.
 ADVANTAGES OF PRECEDENT OVER LEGISLATION

• Morality: The morality of the courts is higher than the morality of

politicians.

• Flexibility: Legislative law suffers from the defect of rigidity.

Precedents enjoys greater flexibility compared to statue law.