Tshewang Dema: Sources of law
Source always gives us an understanding of the objective behind the formation of something. Everything in this universe has a source which carries its authenticity. Without a source, everything loses its importance. We all are very well acquainted with the word “LAW” and is used in our day to day life.
The phrase ‘law’ has been derived from the Teutonic phrase ‘Lag, this means that ‘specific’. In this foundation, the law may be described as a specific rule of demeanour and human relations. It additionally approaches a uniform rule of conduct that’s applicable equally to all the human beings of the state. The law prescribes and regulates well-known situations of human pastime inside the kingdom.
- “law is the command of the sovereign.” “it is the command of the advanced to an inferior and pressure is the sanction at the back of law.” —Austin
- “A regulation is a popular rule of outside behaviour enforced with the aid of a sovereign political authority.” –Holland
- “Law is the body of principles recognized and applied by the State in the administration of justice.”—Salmond
Definition by Indian philosophers
Ancient India represented a distinct tradition of the law and had a historically independent school of legal theory and practice. The Arthashastra, dating from 400 BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that were considered authoritative legal guidance. Manu’s central philosophy was tolerance and pluralism and was cited across Southeast Asia
In simple phrases, the law is a specific rule of behaviour which is sponsored with the aid of the sovereign energy of the country.
WHAT IS LAW
In any society, everybody is subject to the law. Everybody must do as the law says or face the punishments which can be handed out to lawbreakers. Journalists are no different. They, too, must obey the laws of their society. However, there are certain laws which will affect journalists especially, and that is what we shall deal with in the next few chapters.
Societies have laws in order to protect people from the actions of other people. It is clearly impossible for everybody in any society to have absolute freedom: as one person exercised that freedom, it would trample upon somebody else’s freedom. For example, if my neighbour plants pineapples in my garden, then I am not free to use that piece of land myself. It is for this reason that societies have property laws.
The law puts limits on each person’s freedom in order to protect other people’s freedom. We are free to drive a car on the road, but only if we possess a valid driving licence; and, even then, we must keep to one side of the road, and obey speed limits and road signs. In this way, although our freedom to drive is restricted, we are protected from other people’s careless or unskilled driving, which would make it impossible for us to drive safely at all.
In order to make people obey the laws of the society, there must be punishments. If you decide to drive a car even though you have no licence (and if you are caught), you may be fined. If you cannot or will not pay the fine, you can be sent to jail. The main reason that many people obey the law is that they know they may be punished if they break the law.
There are many different legal systems in the world – traditional and modern, Christian and Islamic – and they regulate society in different ways. However, the reason the laws are there at all is the same – to limit people’s rights in certain ways in order to protect other people’s rights; and to punish those who ignore the laws.
The common sources of law are codified laws, judicial precedents, customs, juristic writings, expert opinions, morality and equity. With the growing popularity of the idea of constitutionalism, legislations and precedents occupy the centre position amongst all the various sources of law.
The meaning of the term “sources of law” differs from writer to writer. 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. Others use it to indicate the causes or subject matter of law. 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”. He further goes on to give examples of the common sources of law such as codified laws, judicial precedents, customs, juristic writings, expert opinions, morality and equity. Holland has defined the term to mean the sources of the knowledge regarding law.
There exists no definite classification of the sources of law. Different thinkers and jurists have given their own classifications according to their own understanding of the meaning of the term.
According to Salmond, there are two main sources of law- formal and material. 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. 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 and origin and are followed by the courts as a matter of right. On the other hand, historical sources are those which are originally found in an un-authoritative form and are subsequently admitted and converted into legal principles. For instance, precedents are a material source of law. However, domestic precedents are legal source whereas foreign precedents are the historical source.
Salmond’s classification of the sources into formal and material sources is found to be unsatisfactory by critics. The editor for the twelfth edition of Salmond’s ‘Jurisprudence’ has classified the sources directly into legal and historical.
Keeton’s classification of the sources of law has emerged as a critique of Salmond’s classification. He defines the term as those materials from which law is eventually fashioned through judicial activity. He classified the sources of law into- binding sources and persuasive sources. Binding sources are those which have to be necessarily followed by the courts. Legislations, judicial precedents and customs are examples of such source. Persuasive sources are those which come into play when there is absence of any binding source on any subject. Foreign precedents, professional opinions and principles of morality or equity are examples of persuasive sources of law.
SOURCES OF LAW
There are many different sources of law in any society. Some laws will be written in the country’s Constitution; others will be passed by the legislature (usually a parliament or congress); others will come from long social tradition.
PRIMARY SOURCES OF LAW
The term legislation has been derived from the Latin terms legis meaning law and latum meaning to make. Thus, legislation refers to the making of a law. Salmond defines legislation as, “Legislation is that source of law which consists in the declaration of legal rules by a competent authority.” According to Gray, legislation refers to “the formal utterances of the legislative organs of the society.”
- Salmond- “legislation is that source of law which is composed within the declaration of prison regulations by using an able authority.”
- Horace Gray- “regulation way the formal utterance of the legislative organs of the society.”
- John Austin- “There may be no law without a legislative act.”
The analytical school of jurisprudence believes the law to be a set of commands issued by a sovereign authority. This command is what is known as a statute and the process of making of a statute is known as legislation. The analytical positivists believe legislation to be the only true source of law and disapprove of judiciary taking up legislative functions. Furthermore, they do not recognize customs as a valid source of law.
On the other hand, the historical school believes legislation to be the “least creative” source of law. They believe that legislation only gives a proper form and structure to the customs that have been developed by the people. Both the views are the two opposite extremes of regarding legislation as a source of law. While the analytical school regards legislation as the only source of law, the historical school disregards it as a source of the new law.
Salmond has classified legislations into supreme and subordinate legislation:
- Supreme Legislation- Supreme legislation refers to the laws made through the exercise of the sovereign power of the State. The power to repeal or amend such laws rests only with the legislative body which has enacted the laws.
- Subordinate Legislation- Subordinate legislation refers to the laws made by an authority other than the sovereign power of the State. Such laws are in constant supervision of the body which enacts supreme legislations. One of the kinds of subordinate legislation is delegated legislation, which is quite popular in the contemporary world.
- Delegated law– that is a sort of subordinate law. it’s miles that the principal feature of the government is to enforce the law. In case of Delegated regulation, executive frames the provisions of law. this is also known as govt legislation. The government makes laws in the form of orders, by-laws and so forth.
Sub-Delegation of power to make laws is likewise a case in Indian legal system. In India, the power to make subordinate law is commonly derived from existing permitting acts. It’s miles essential that the delegate on whom such power is conferred must act within the limits of the permitting act.
The main cause of this kind of regulation is to supplant and no longer to supplement the law. Its predominant justification is that sometimes legislature does now not foresee the difficulties that would come after enacting a regulation. Therefore, Delegated legislation fills in the one’s gaps that aren’t seen at the same time a method of the allowing act. The delegated legislation offers flexibility to regulation and there is sufficient scope for adjustment inside the light of experiences received in the course of the running of regulation.
- 2. CUSTOMS
A Custom is any established mode of social behaviour within the community. Various dimensions of human behaviour which are prescribed by the community or society hint at the conceptual frame of custom. It is considered as one of the mechanisms of social control and an appropriate direction for humans to live in the community and to allow the society to perpetuate. Custom in Chamber’s 20th Century Dictionary means, ‘What one is wont to do: what is usually done by others: any of the distinctive practices and conventions of a people or locality, esp., those, of a primitive tribe’.
Salmond defines custom as an embodiment of principles of justice which have appealed to the national conscience.
Keeton defines customs as rules of human actions which have been established by continuous usage and have the force of law and are applied by the courts.
According to Carter, “The simplest definition of custom is that it is the uniformity of conduct of all persons under like circumstances.”
Austin, in his disregard for custom as a source of law, defines them as rules of conduct which are simply observed by the “governed” in a non-legal sense.
However, Austin said that custom isn’t always a source of law.
Roscoe Pound said that customary regulation comprises:
- Law formulated via custom of famous motion.
- Law formulated thru judicial choice.
- Law formulated with the aid of doctrinal writings and clinical discussions of legal standards.
Ingredients of Custom
- Continuous in nature.
- Peaceful Enjoyment
- Obligatory Force
In Subramanian Chettiar v. Kumarappa Chettiar custom has been defined as, “A particular rule which has existed from the time immemorial and has obtained the force of the law in a particular locality.” In Hur Prasad v. Sheo Dayal, the custom has been defined as ‘Rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from long usage obtained the force of law.’ Citing Hur Prasad v. Sheo Dayal, Sir Hari Singh Gour states that, ‘Custom is an established practice at variance with the general law.’
Citing the Tanistry Case (1908), Dav. 29, Viner states that, “A custom, in the intendment of law, is such a usage as hath obtained the force of law and is in truth a binding law to such a particular place, persons and things which it concerns. But it is ius non-scriptum and made by the people only of such places where the custom is.”
In Tanistry Case, the custom is further described in these words “it is jus non scriptum and made by the people in respect of the place where the custom obtains. For where the people find any act agreeable to their nature and disposition, they use and practice it from time to time, it is by frequent iteration and multification of the act that the custom is made and being used from time to time which memory runneth not to the contrary obtained the force of law.”
The Hindu Code defines custom and usage as “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.”
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. The king never made any laws. 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.
- CLASSIFICATION OF CUSTOMS
Taking into consideration what has been discussed above, customs are habits of action or patterns of conduct which are generally observed by classes or groups of people. Such habits of action or pattern of conduct (customs) can be classified into–
1) Customs without binding obligation and
2) Customs with definite binding obligation.
a). Customs without Binding Obligation
Customs which are concerned with less important aspects of social life are covered in this category. Most societies have certain customs with respect to the kind of dress one is expected to wear on various occasions. For example, wearing a black dress at a funeral ceremony in England but, white in India. Well-established customs are observed at burials and other solemn ceremonies, etc.
A large section of people observes customs of certain kind for the funeral of their deceased relatives, irrespective of the fact that it may not be affordable for them. Whatever it may be, none of these customs is completely obligatory / binding. Their sanction, in many cases though powerful, is imperfect.
No man is under an absolute compulsion to give a feast at the time of marriage or after the funeral of the deceased relative, etc. All these customs are followed due to the fear that non-observance of such customs may lead them to be socially outcaste. Such customs are non-binding in the sense that they are not obligatory to follow.
People follow them due to the social pressure of public opinion. When a custom of this type is violated, society usually reacts by showing social displeasure or disapproval; but it has no sanction in the strict sense of the term. Such customs can be called as ‘Social Customs’.
b). Customs with Definite Binding Obligation
In this category those customs are covered “which in a more definite and stringent sense are regarded as the specific duties and obligations of men. Such customs may regulate the obligation of marriage and the upbringing of children, the transmission of property at death, or the modes of consummating and fulfilling agreements.
Such customs do not pertain to the sphere of social formalities, outward decorum, or aesthetics; rather, they are concerned with the serious business of society, the work that must be accomplished in order to secure and guarantee satisfactory conditions for collective life.”
Customs covered in this category are backed by sanction which is more certain in its operation than any other social customs. Such customs, if satisfy certain standards or tests, acquire legal character, and their violation is met by typical sanctions employed by the legal order. Such customs are enforceable and obligatory.
Such customs can be further divided into Legal Customs and Conventional Customs. For the purpose of the present study the researcher is more concerned with Legal Customs than to mere Social Customs.
Customs with Definite Binding Obligation
- Legal customs
‘Legal Custom’ occupies a place by itself in that its sanction is more certain in its operation than that of any other. “The effect of sanction”, writes Sir C. K. Allen, “is negative rather than positive: if the custom is not followed, certain desired consequences will not be brought about.” For example, if a particular custom is not followed, the marriage will not be treated as valid; the desired consequences of becoming a husband and wife will not be brought about. Children out of such marriage will not be treated as legitimate. Law, back by the opinion at the earlier stage and at later stages by the tribunals of the community, will forbid those relationships to be affected.
Customary rules are ‘legal’ in the sense that they are binding and obligatory rules of conduct (not merely of faith and conviction), and the breach of them is a breach of positive duty. In legal custom no option, however small, is left to the individual, as in other social customs. Legal custom is operative per se as a binding rule of law, independent of any agreement on the part of those subject to it. According to Salmond, ‘A legal custom is one whose legal authority is absolute—one which in itself and proprio vigore possesses the force of law.’ Legal custom may further be classified as General Custom and Local Custom
- General customs
General custom is that which prevails throughout the country and constitutes one of the sources of the law of the land. It prevails throughout the territory of the state and is observed by all the members of the society. There was a time when common law was the same as the general custom of the realm followed from ancient time.
- 2. Local customs
A local custom is a custom confined to a locality and constitute a source of law for that locality only. According to Salmond, “The term custom in its narrower sense means local custom exclusively.
Tribal custom’, says Sir Hari Singh Gour, ‘is a custom confined to a particular tribe, caste or community.’ Tribal custom, in certain cases, applies to geographical local custom where the population of a particular district or town or region is covered by the said tribal community at the most. However, in other cases it applies both to the geographical locality and the personal locality.
Customs and the customary laws of the Adivasis, the subject-matter of the present study, fall in the latter category.
- Conventional customs
According to Salmond, ‘A conventional custom is one whose authority is conditional on its acceptance and incorporation in agreement between the parties to be bound by it.’ He further stated that, ‘In the language of English law the term custom is more commonly confined to legal custom exclusively, while conventional custom is distinguished as usage. Usages are not laws ex proprio vigour.’
A conventional custom or usage is a practice established by having been followed for a considerable period and arising out of a contract between the parties; it does not arise out of its own force. Thus, a usage or conventional custom is an established practice which is legally binding, not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in a contract between the parties concerned.
Conventional custom may, again, be divided into two types—General Conventional Customs and Local Conventional Customs. General Conventional Customs are extensively practiced throughout the realm; whereas Local Conventional Customs are limited to a place or to a trade or transaction.
- TRANSFORMATION THEORY OF CUSTOM INTO LAW
The general criterion which distinguishes social customs from legal custom has already been discussed above. The lines of demarcation between the two are fluid. While some customs are non-legal, in the sense that they do not have absolute binding obligation whereas, some customs have absolute binding obligation. Customs having absolute binding obligation are legal customs and are elevated to the status of law if they satisfy certain judicial tests. At this point, it becomes necessary to consider the conditions under which the transformation of ‘custom’ into ‘law’ takes place. Broadly speaking, there are two theories regarding the question as to when custom is transformed into law. Those are the Historical and the Analytical theory of law.
a). Historical School
Edmund Burke, who laid down the foundation of the historical school, pointed to history, habit and religion as the true guides to social action. Friedrich Carl Von Savigny and George Friedrich Puchta are the main exponents of the historical school of law.
This school maintains that, law was primarily the expression of the legal convictions and practices of the community. According to this school, custom carries its own justification, because it would not exist at all unless some deep-seated needs of the people or some native quality of temperament give rise to it. The growth of law does not depend upon the arbitrary will of any individual. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. It springs from an inner sense of right. Law has its existence in the general will of the people. Savigny calls it Volkgeist.
According to Savigny, ‘Law was not something that should be made arbitrarily and deliberately by a lawmaker’. It was a product of “internal, silently-operating forces.” It was deeply rooted in the past of a nation, and its true sources were popular faith, custom and the common consciousness of the people. Like language, the constitution, and the manners of a people, law was determined above all by the peculiar character of a nation, by its national spirit (Volkgeist). To him, “law like language stands in organic connection with nature or character of the people and evolves with the people.”
Therefore, according to Savigny, the true basis of positive law is its existence, its reality, in the common consciousness of the people. Custom therefore is the badge and not the ground of origin of positive law.
According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments.” Themistes were judicial awards which were dictated to the King by the Greek goddess of justice. He explained, “Themistes, Themises, the plural of Themis, are the awards themselves, divinely dictated to the judges.” Brown also maintains that, “Custom is often posterior to judicial decisio. Under the pretence of declaring custom, judges frequently give rise to it.”
The Historical theory of law has been criticized by many scholars and jurists. Without disrespect to the scholarly genius of Savigny and his followers, Allen criticizes their view as, ‘Many customs which have taken deep root in society do not appear to be based on any general conviction of their rightness or necessity, or upon any real or voluntary consensus utentium.’
Slavery, for example, was almost the universal practice of the ancient world. Slavery is frankly admitted being ‘contra naturam’, whereas liberty is a ‘naturalis facultas eius quod caique facere libet.’ The truth is that slavery was a custom based upon the needs not of a popular majority but of a ruling minority. Many customs, again, says Allen, are so essentially local in origin that they cannot be said to arise from any widespread conviction. The reason and utility on which (such) customs rest often arise from purely local conditions, and not from any widespread Geist. In cosmopolitanism of commercial customs and many other customs the Volkgeist loses much of its meaning.
b). Analytical School
Austin, one of the main priests of the Analytical school, denies customs the force of law until they have been expressly recognized by the sovereign. This is consistent with his general doctrine of sovereignty, for, without the cachet of supreme authority, custom cannot be conceived as a command. To him a customary practice is to be regarded as a rule of positive morality unless and until the legislature or a judge has given it the force of law.
According to this view, habitual observance of a custom, even though accompanied by a firm conviction of its legally binding character, does not suffice to convert the custom into law; it is the recognition and sanction of the sovereign which impress upon the custom the dignity of law. The sovereign may abrogate custom. A custom is law only because the sovereign allows it to be so. Custom is a source of law and not law itself.
According to Austin, “A customary law may take the quality of legal rule in two ways: It may be adopted by a sovereign or subordinate legislature and turned into a law in the direct mode (statute law) or it may be taken as a ground of judicial decision, which afterwards obtains as a precedent and in this case it is converted into a law after judicial fashion. In whichever of these ways it becomes a legal rule, the law into which it is turned emanates from the sovereign.”
Analytical theory has also been criticized by many scholars and jurists. According to Allen, “custom grows up by conduct, and it is therefore a mistake to measure its validity solely by the element of express sanction accorded by courts of law or by any other determinate authority. The characteristic feature of the great majority of customs is that they are essentially non-litigious in origin.
They arise not from any conflict of rights adjusted by a supreme arbiter, nor from any claim of meum against tuum, but from practices prompted by the convenience of society and of the individual, so far as they are prompted by any conscious purpose at all.”
He further stated that, the starting-point of all custom is convention rather than conflict, just as the starting-point of all society is cooperation rather than dissension.To conclude, both the theories contain some element of truth but that is only partial and not the whole truth. Austin denies customs the force of law.
He calls it a ‘positive morality’. But, according to Allen, Austin ‘failed to explain satisfactorily why the body of rules which he classified as ‘positive morality’ lacked the true characteristic of law.’ This is true, especially when customs grow up by conduct and are derived from the common consciousness of the people.
Therefore, it is a mistake to measure its validity solely by the elements of express sanction accorded by courts of law or by any other determinate authority. But it is also true that many customs do not appear to be based on general conviction of their rightness or necessity, or upon any real or voluntary consensus lutetium.
It also appears that the historical school has undermined the creative role of the judges in molding and shaping the customs. In India, especially, in order that a custom may have the force of law, it is necessary that it should satisfy all the essentials or requirements of a valid custom.
- CASE LAW OF CUSTOMARY LAW
In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme Court held that a customary right in the exercise of which the residents of a locality were entitled to excavate stones for purposes of trade (and not for domestic or agricultural purposes) would ex facie be unreasonable, because the exercise of such a right ordinarily tends to the complete destruction of the subject matter of the right. The custom was therefore unreasonable.
The Supreme Court in M.C. Mehta v. Kamal Nath and others (1997-ISCC 388) had ruled that the ‘doctrine of public trust’ applies to natural ecosystems and the government as public trustee should protect the same for the benefit of the society at large and that private commercial and industrial establishments should not be allowed to misappropriate them. The judgement is a reassurance of people right to their commons. The common-land case of Karnataka represents another case of people’s resistance to the take-over of common property resources by the state for the benefit of commercial corporations.
DIFFERENCE BETWEEN LEGISLATION AND CUSTOMARY LAW
- Legislation has its source in theory whereas customary law grows out of practice.
- The existence of Legislation is essentially de Jure whereas existence of customary law is essentially de Facto.
- Legislation is the latest development in the Law-making tendency whereas customary law is the oldest form of law.
- Legislation is a mark of an advanced society and a mature legal system whereas absolute reliance on customary law is a mark of primitive society and under-developed legal system.
- Legislation expresses relationship between man and state whereas customary law expresses relationship between man and man.
- Legislation is precise, complete and easily accessible but the same cannot be said about customary law. Legislation is jus scriptum.
- Legislation is the result of a deliberate positive process. But customary law is the outcome of necessity, utility and imitation
- 3 JUDICIAL PRECEDENTS
In almost all legal systems, the judges take guidance from the previous decisions on the point and rely upon them. But the authority of such decisions is not the same in all the legal systems. In most of the countries including India, acquire their knowledge of the law through decisions of higher tribunals than from anything else. Such decisions are compiled and published in reports. These reports are very valuable from the legal literature perspective. These decisions are very efficient in deciding cases of subsequent cases of similar nature. They are called judicial precedents or precedents.
Definition of Precedent
In general English, the term precedent means, ‘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.’
- According to Gray, ‘precedent covers everything said or done, which furnishes a rule for subsequent practice.’
- According to Keeton, ‘a judicial precedent is judicial to which authority has in some measure been attached.’
- According to Salmond, ‘in a loose sense, it includes merely reported case law which may be cited & followed by courts.’
In a strict sense, that case law which not only has a great binding authority but must also be followed.
- According to Bentham precedents are ‘Judge made Law.’
- According to Austin precedents are ‘Judiciary’s Law.’
In general, in the 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. The application of such judicial decisions is governed by different principles in different legal systems. These principles are called ‘Doctrine of Precedent’. For this case to be held, first such precedents must be reported, maybe cited and may probably be followed by courts. Secondly, the precedent under certain circumstances must be followed.
Thus, it can be inferred that precedents are:
- Guidance or authority of past decisions for future cases.
- Precedents must be reported, maybe cited and may probably be followed by courts.
- Precedents must have opinio-juris.
- These must be followed widely for a long time and must not violate any existing statue law.
A Key principle of Judicial Precedent
- Bound by its own decision
- IMPORATANCE OF PRECEDENT
a). In the Ancient Legal System:
The importance of the decisions as a source of law was recognized even in very early times. In the past, there have been numerous instances of this. Sir Edward Coke, in the preface of the sixth part of his report, has been written that Moses was the first law reporter. ‘In the case of the daughters of Zelophehad, narrated at the beginning of the twenty- seventh chapter of the book of numbers, the facts are stated with the great clearness and expressly as a precedent which ought to be followed.’
Even in the Mahabharata, it has been stated that ‘The path is the right one which has been followed by virtuous men.’ This may be interpreted as giving a theory of precedent. In ancient legal systems of Babylonia and China, the judicial decisions were a great authority, and later, they were embodied in code law.
b). In the Modern Legal System:
Among the modern legal systems, the Anglo – American law is judge made law. It is called ‘Common Law’. It developed mainly through judicial decisions. Most of the branches of law, such as torts, have been created exclusively by judges. The Constitutional Law of England, especially the freedom of the citizens, developed through judicial decisions.
According to Tennyson, “where freedom slowly broadness down, from precedent to precedent.”
Not only in the municipal law but in international law also, the precedents have their importance. The decisions of the International Court of Justice are an important source of International law. These precedents have been recognized by the International Court of Justice by Article 38(2)(d) of the Statue of the International Court of Justice. Further, Article 59 of the same holds that the decisions of the court only have persuasive value for future cases and hence the International Court of Justice is not bound by its own decisions in deciding similar cases in future. It holds that the decision is only binding the parties to the case.
The above brief discussion indicates the role and importance of decisions on precedents in the development of law and their importance as a source of law at the municipal as well as the international level.
- Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, a persuasive authority may guide the judge in making the decision in the instant case. Persuasive precedent may come from a number of sources such as lower courts, “horizontal” courts, foreign courts, statements made in dicta, treatises or law reviews. In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.
- Lower Courts
A lower court’s opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.
- Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority.
- Horizontal Courts
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.
- Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts.
The obiter dicta are usually, as its translation “other things said”, but due to the high number of judges and several personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision). For this reason, the obiter dicta may usually be taken into consideration.
- Courts in other countries
An English court might cite judgments from countries that share the English common law tradition. These include other commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States.
It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact that the European Union forbid death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the “Court’s decision to place weight on foreign laws.” The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and “reaffirming American independence.”
- General Principle of Doctrine of Judicial Precedent
There are two rules that apply to the doctrine of judicial precedents:
- The first rule says that a court which is lower in a hierarchy is completely bound by the decisions of courts which are above it.
- The second rule states that higher courts are bound by their own decision in general in matters of related to precedence
- The decisions of the high court are binding on all subordinate courts. In case of a conflict between two benches of similar authority, the latter decision is to be followed.
- The more the number of judges on a bench, the higher their authority.
- The decision of one high court is not binding on other high courts.
- The Supreme court is the highest authority and its decisions are binding on all other courts. Article 141 of the constitution says that any law decided by the supreme court shall be binding on all courts of the country.
Article 141 states all courts are legally bound to the Supreme Court judicial decisions except for Supreme Court itself. The Supreme Court is not bound by its own decisions.
However, the Supreme Court recognises that its earlier decisions cannot be deviated from, except in case of extenuating circumstances. If an earlier decision is found to be incorrect, the Supreme Court will deviate from it.
3.3 TYPES OF PRECEDENTS
- Declaratory and Original Precedents
As John William Salmon explained, a declaratory precedent is one where there is only application of an already existing rule in a legal matter.
Whereas, an original precedent is one where a new law is created and applied in a legal matter. Original precedents are responsible for the creation of new laws.
- Persuasive Precedents
A persuasive precedent is a type of precedent where the judge is not required to follow the precedent in a legal matter but will take the precedent heavily into consideration.
So a persuasive precedent is not a direct source of law but is considered a historical source of law. In India, the decisions of one high court can act as persuasive precedents in other high courts.
- Absolutely Authoritative Precedents
In an absolutely authoritative precedent, the judges have to compulsorily follow the judicial decision of the precedent in a case of law.
In other words, even if the judge finds the precedent to be a wrong judgment, he is legally bound to give the same judicial decision.
For e.g. – Every court in India is absolutely bound by decisions of courts superior to itself because of hierarchy.
- Conditionally Authoritative Precedents
A conditionally authoritative precedent is one where generally the precedent is authoritative but in certain special circumstances, like a supreme court decision, it can be disregarded. The court can disregard the decision if it is a wrong decision or goes against the law and reason.
3.4 CASE LAW OF JUDICIAL PRECEDENT
In the case of Commissioner of Income Tax vsM/s Sun Engineering Works Private Limited AIR 1993, SC 43, the Hon’ble Apex Court held that “while applying the decision to a later case, the court must carefully try to ascertain the true principle laid down by the decision of the Supreme Court and not to pick out words or sentences from the Judgment divorced from the context of the question under consideration by the court to support their reasoning.”
It is very clear that only those statements in an earlier decision which may be said to constitute the ratio decidendi of that case are binding. Statements which are not essential or necessary for deciding the later cases, such non-authoritative statements are called as obiter dicta.
The Hon’ble Apex Court in Megh Singh v. State of Punjab [AIR 2003 SC 3184] has held that, “circumstantial flexibility, one additional or different fact may make a world of difference between conclusion in two cases or between two accused in the same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter the entire aspect.”
In this regard the FiveJudges Constitution Bench of Honourable Supreme Court in case of Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673 has observed that, “The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength”.
SECONDARY SOURCES OF INDIAN LAW
Secondary sources of Indian law are English Law, Common law, Equity, Law merchant, Statute law, Justice, equity, and good conscience. In the case of absence of statutory or personal law, the Indian courts follow the decision of a case known as ‘Justice, Equity and Good Conscience.
- English Law
The chief sources of English Law include
- Common Law
Common law, in this case, refers to the principles of law that have been evolved by judges through their case judgements. These statements have been made and improved over a number of years to better perfect them.
Thus, common law consists of a body of rules, which have been defined by customs, judicial decisions and old scholarly works in the law. Common law is the unwritten law of English which applies to everyone in the country
- Law Merchant
Law Merchant is the main source of Mercantile law. It refers to those customs and rules that apply to traders and businessmen on their dealings and tradings with each other.
- Principle of Equity
The principle of Equity refers to a set of rules, which neither originated from customs nor statutory law. Equity rules were formed on the basis of dictates of conscience which had been decided in the Courts of Chancery.
In cases, where Common Law was not applicable, the Chancellor presided over such cases in special courts called ‘Equity Courts’. Equity courts had a separate existence from the Common Law Courts in England. These ‘Equity Courts’ acted on a number of customs like :
- He who seeks equity must do equity.
- He who comes to equity must come with clean hands.
- Statute Law
Statute law is that law that has been created by the legislation. A statute is a formal act of the legislature in written form. It has also become an important source of Mercantile Law.
A statute or written overrides any unwritten laws, which are Common Law and Equity. Statutory laws are the basic framework of the modern legal system.
- Other source of English Law is Justice, Equity, and Good Conscience
The theme of justice, equity, and good conscience first came into being through Impey’s Regulation of 1781. In the case of absence of statutory or personal law, the Indian courts follow the decision of a case known as ‘Justice, Equity and Good Conscience’, which in this case refers to English law as far as it is applicable to the Indian context.
Ancient Hindu law had their own concept of ‘Justice, Equity and Good Conscience’. In its modern version counterpart in the Indian legal system, it owes its origins to the British rule in India.
The High Courts established by the British by the British administration stated that when the law was unclear or silent on an issue, the issue would be decided in accordance with the principles of ‘Justice, Equity and Good Conscience’.
Justice, equity and good conscience have generally been interpreted as English laws and rules that are applied when any written law is not applicable to a legal matter. The court also uses ‘Justice, Equity and Good Conscience’ in the absence of Hindu law in matters relating to personal laws.
“It is odd, when one thinks of it, that there are people in the world who, having renounced all the laws of god and nature, have themselves made laws which they rigorously obey”- Pascal
In order to interpret any law, it is important to understand the source of the law. Therefore, the topic of sources of law has received much attention from several jurists, thinkers and legal theorists. The most widely accepted source of law is legislation. The position of customs, the most important source of law in ancient times, has been reduced to a traditional one in the modern times. With the growing popularity of the idea of constitutionalism, legislations and precedents occupy the centre position amongst all the various sources of law.
It is quite natural that laws which derives its source from rituals, believes and also from particular social system are subject to change. But the main issue which is to be noted is that whether the reforms are timely or keeping pace with the social change. If it is not so that it result in hindering social progress. Law Reforms simply aiming at the practicality is very easy.
But ignoring sociological and philosophical background of society will do little benefit to the people. Every legislation affecting the social life influences our value system. This will take place directly or indirectly. If the law-making authority is not considering this fact it may affect the future social set up. Therefore, analysis of the legal system with the help of philosophical tools has its relevance. Major laws existing in India came into force during the period of British rule. No important reformations except some meagre changes took place. Certain laws turned irrelevant now. There are also laws which were enacted in a particular social set up of our country. Now these laws were also becoming impractical. One cannot analyse all these facts in a brief study. Constitution is the major guideline of Indian legal system.
Though there are laws enacted before the commencement of the constitution, they also come under the purview of the constitution. So, the relevance of constitution in our legal system is very important. Constitution is a declaration for the people by the constituent assembly representing the people. It is more than a declaration. Former Prime minister Jawaharlal Nehru viewed it as a “declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication”. For the same reason the reformation of legal system is depended on the flexibility of the Constitution also. So, every discussion regarding Indian legal system start from the nature and scope of constitution. Likewise, penal laws, family laws, human rights issues etc. should be analysed.
Sources of law must not construe as the authority sanctioning or enforcing a law. It should mean the agency from which the law originates, so say from where the rule of the action has come into existence. That is why Giorgio Del Vecchio regards the nature of the man as the sources of law.
In the contemporary world, a law is made by legislation, the decisions of apex courts are also law, custom play a vital role too. In the absence of these, courts take opinions of renowned personalities on a issue, foreign decision, morals, principles of equality are also taken into consideration where there exists no direct authority. Mainly there belong two classes of source i.e binding and persuasive. Binding includes legislation, precedent and custom while rest source is percussive. Once binding source are discussed and referred to, once binding source are exhausted.
 AIR 1955 Mad 144.
 26 W.R. 55 (P.C.); cited in, Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167.
 Gour, Sir Hari Singh, “The Hindu Code”, (1973), Law Publishers, Allahabad, Vol. I, at p 156.
 Cited in, Ningshen, Varesco, P.G. Dept. of Law, Gauhati University, “The Thangkhul (Naga) Customary Laws: A Critical Legal Study”, (2008), a thesis submitted to the University of Gauhati, at p 23.
 Section 3(a) of The Hindu Marriage Act, 1955; see also section 3(a) of The Hindu Adoptions and Maintenance Act, 1956.
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