Sources of Law

By | June 13, 2018
law

INTRODUCTION

Source always gives us the 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 demeanor 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.

  1. 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
  2. A regulation is a popular rule of outside behaviour enforced with the aid of a sovereign political authority.” –Holland
  3. 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.

Sources of Law

A.Formal Sources

The legal power of the law can be found in the formal sources of law. Formal sources are the sources from which the law derives its force and validity. Of course, the only authority from which the law can spring and derive forces and validity is the state.

This source of law includes:-
  • Will of the State

The State makes its own law for the benefit of its residents with due process of law enshrined in our esteemed constitution. In Indian scenario, the State can make laws on the subjects which are provided in the State list under 7th Schedule. Hence State has the power to make laws and henceforth the laws made are categorized under formal sources of law.

  • Will of the people

Sometimes laws are even made by the will of the people. When people face a certain problem in their day to day life they have the option to address those delinquent and if the State is satisfied with those problems and solutions stated then State makes it in a form of law. For example, people are not allowed to use speakers or play loud music after 10 pm at night.

  • Judicial decisions of the court

Even judicial decisions delivered in various judgment is a source of law and falls under a formal source of law. The decisions given by our lordships are of immense value and treated as a form of law. There are numerous judgments after which it has been transformed into a law. The reports submitted by judges or by the committee’s ad hoc or permanent is also converted into law if it suffices the purpose.

For example, Visakha & others vs. State of Rajasthan[1]

A 1997 Indian supreme court case where Vishakha and different girls organizations filed Public interest Litigation (PIL) in opposition to the State of Rajasthan and Union of India to put into effect the essential rights of operating women underneath Articles 14, 19 and 21 of the Constitution of India. The petition turned into filed after Bhanwari Devi, a social worker in Rajasthan was brutally gang-raped for stopping a baby marriage.

The court decided that the consideration of “worldwide Conventions and norms are considerable for the purpose of interpretation of the assure of gender equality, right to paintings with human dignity in Articles 14, 15, 19(1)(g) and 21 of the charter and the safeguards in opposition to sexual harassment implicit therein.” The petition ended in what is popularly known as the Vishaka guidelines or law to be followed for prevention of women from sexual harassment at the workplace.

B.Informal/Material Sources

As the name suggests the material for the different law can be taken up from these sources. However, the validity of laws cannot be done from these sources. The material sources provide the matter. According to Salmond “the material source supplies the substance of the rule to which the formal source gives the force and nature”.  Material source of law is the place where the law material is taken. Material source of law is a factor that helps the formation of the law.

 For example,

  • Social relations, political power relations, socio-economic situation, tradition or religious views.
  • The results of scientific research, international development, and geographical circumstances.
Historical Sources

Historical resources are rules which are in the end was legal ideas. These sources basically help us to know the historical significance and the need for such development of law. Ancient India represented a distinct tradition of 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 Such source is first located in an Unauthoritative form. commonly, such principles are not allowed by means of the courts as a count number of proper. They perform indirectly and in a mediatory way. They are sources but have no legal recognition. They operate indirectly and mediately. Under this class come juristic writings, foreign decisions and numerous other things from which a judge derives help in shaping his judgment.

They are of two types: –Religion and morality

Literary sources of law

Mean the original sources of law which come from authorities on law. A literary source being an original source, any commentary written on the original work cannot constitute a literary source of law.

Legal Sources

Legal sources are considered to be one of the most significant sources of law. Basically, legal sources are the sources by which legal rules are formed. Legal sources are considered to be one of the primary and important organs for the development of legal rules. Legal sources are considered to be an authentic source for the formation of law. Legal sources are the main gates which allow us to get into the real realm of law. Legal sources are even followed in the courts when some decision has to be pronounced.

These sources serve the basis for the formation of laws. They are:-

  1. Legislations
  2. Precedent
  3. Customs
  4. Treaties and Conventions

Legislations

It is considered to be one of the primary sources of law. Legislation has a very wide ambit and is used in providing various types of requirement such as to regulate, to authorize, to enable, to prescribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. Most of the power of the legislature is restricted by the nations constitution. Although the legislation has the power to legislate the court has the power to interpret statutes, treaties and regulations.

Legis’ means regulation and ‘latum’ means making. allow us to understand how various jurists have defined regulation.

  1. Salmond- “legislation is that source of law which is composed within the declaration of prison regulations by using an able authority.”
  2. Horace gray- “regulation way the formal utterance of the legislative organs of the society.”
  3. John Austin- “There may be no law without a legislative act.”
  • Analytical Positivist faculty of notion– this school believes that common regulation is a statute and legislation is the normal supply of regulation making. most people of exponents of this school do no longer approve that the courts also can formulate law. They do no longer admit the claim of customs and traditions as a supply of law. as a consequence, they regard most effective law because of the supply of law.
  • Historic school of the idea– This group of professors believe that legislation is the least creative of the assets of law. The Legislative purpose of any regulation is to provide better form and effectuate the customs and traditions which are spontaneously evolved with the aid of the people. for this reason, they do not regard regulation as a source of law.

Different Kinds of legislation

  1. Supreme legislationAn ultimate or an advanced law is that which proceeds from the sovereign strength of the nation. It cannot be repealed, annulled or managed via another legislative authority.
  2. Subordinate legislationit’s far that which proceeds from any authority aside from the sovereign power and is dependent for its persistent existence and validity on some superior authority.

3.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 govt 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 has to 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.

Precedent

Judicial precedent mandates that there be a hierarchy of courts to help take care of issues. Judicial precedent, in its outright meaning, makes a previous decision of one court be binding on a lower court. The concept of stare decisis plays a role here. In other words, if a higher court has decided on a case and another similar case comes up at a lower court, the lower court will treat the case alike and pass the judgment exactly as like done by the higher court. This is because the previous judge had set a precedent for the lower court and the lower court and the lower court is bound to follow the precedent as such, as long as the case can be treated on a similar platform like the one decided earlier by the higher court.

In Indo-Swiss Time Ltd. v. Umroo[2] AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority, then the weight should be given on the basis of rational and logical reasoning and we should not bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium[3]- AIR 1976 SC 2435- This case held that when there is an inconsistency the decision between the benches of the same court, the decision of the larger bench should be followed.

A Key principle of Judicial Precedent

  • Consistency
  • Hierarchy
  • Bound by its own decision

Customary Law

Salmond said that ‘custom is the embodiment of these concepts which have counseled themselves to the countrywide judgment of right and wrong as the ideas of justice and public utility’.

Keeton said that “normal legal guidelines are those regulations of human movement, established by usage and seemed as legally binding via the ones to whom the guidelines are relevant, which might be adopted by way of the courts and implemented as a supply of regulation because they may be typically followed by using the political society as an entire or by means of some part of it”.

However, Austin said that custom isn’t always a source of law.

Roscoe Pound said that customary regulation comprises:

  1. Law formulated via custom of famous motion.
  2. Law formulated thru judicial choice.
  3. Law formulated with the aid of doctrinal writings and clinical discussions of legal standards.

Ingredients of Custom

  1. Antiquity
  2. Continuous in nature.
  3. Peaceful Enjoyment
  4. Obligatory Force
  5. Certainty
  6. Consistency
  7. Reasonableness

Conventional Law- Treatises etc.

Treaties and conventions are the persuasive source of global law and are taken into consideration “difficult law.” Treaties can play the role of contracts between two or extra events, along with an extradition treaty or a defense. Treaties also can be law to adjust a specific thing of international family members or form the constitutions of worldwide agencies. Whether or not or not all treaties can be regarded as resources of law, they’re assets of obligation for the parties to them. Article 38(1)(a) of the ICJ, which uses the term “worldwide conventions”, concentrates upon treaties as a source of contractual duty but additionally acknowledges the possibility of a state expressly accepting the obligations of a treaty to which it isn’t always officially a party.

For a treaty-primarily based rule to be a supply of law, rather than surely a source of obligation, it should either be capable of affecting non-events or have effects for parties more significant than the ones specifically imposed by way of the treaty itself.

As a result, the processes or methods via treaties end up legally binding are formal source of law that is a procedure through a prison rule comes into lifestyles: it’s far law growing

Article by- Shubhendu Shekhar
National Law University, Jodhpur

Case Laws

[1] Vishakha vs. State of Rajasthan AIR 1997 SC. 301.

[2] Indo-Swiss Time Ltd. vs. Umroo AIR 1981 P&H 213.

[3] Union of India vs. K.S. Subramanium AIR 1976 SC 2435.

Sources

  • Theory of the Law. By John W. Salmond.
  • Judicial Process: Precedent in Indian Law Paperback – 1 Dec 2009. By A. Lakshminath
  • The Nature and Sources of International Law. Author(s): Gordon E. Sherman The American Journal of International Law, Vol. 15, No. 3 (Jul., 1921), pp. 349-360.
  • www.desikanoon.co.in

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