Sources of Law

Sources of Law

Author: Zainul Rizvi

What is law?

The term law means different kinds of Principles and rules. It is an instrument that regulates behavior and human conduct. In simpler sense Law means a set of rules that governs the state or set of rules which describe the proper functioning of a state. According to the view of Judges Law means Decree, Judgments, Rule of Courts, Order of Courts, Injunctions. From the point of view of the legislature, it means Statues, Acts, Rules, Ordinances, and Regulations.  In Hindu religion, the law implies “Dharma” in Islam it means “Hukum” and in Roman “Jus”. According to Salmond “the law” may be defined as the body of principles recognized and applied by the state in the administration of Justice. While the jurists of the historical school of jurisprudence were of that view that Law is a historical perception that evolves according to customs, traditions, culture, and sentiments of the people.

According to Savigny, a law made without taking into consideration the past historical culture and tradition of the community is likely to create more confusion rather than solving the problems because ‘law’ is not an artificial lifeless mechanical device. The origin of law lies in the popular spirit of the people which Savigny termed as Volksgeist. Gustav Hugo state that law is not the result of legislation or it is in no way command of the sovereign nor a matter of social contract but it is the outcome of the habits and traditions of the people which they follow voluntarily as the member of the community

An Introduction of Sources of Law

In the Indian context, the expression “sources of law” is generally used in two senses. In the first according to Hindu scriptures- duty is the foundation head of all law, in the second phase, the expression ‘source of law means where one must resort to getting to Law. Dr. C.K. Allen asserts that the true sources of law are agencies through which the rules of conduct acquire the character of law because of their certainty, uniformity and binding force. According to Fuller, the “source of law” includes the material from which the Judge obtains rules for deciding cases. In this sense, it includes statutes, judicial precedents, customs, opinions of legal experts, jurists, etc[1]. According to Salmond, there are two main sources of law (I.)Material Source and (ii) Formal Source of Law.

The material sources are further sub-divide into legal sources and historical sources. He defined a formal source of law as that from which a rule of law derives its force and validity. He, however, clarified that from the material source, the law derives only its matter and not the validity. Thus the will of the state as manifested in the Statute Book or decisions of Courts are their formal source of law while legislation, customs, agreements, and professional opinion of jurists, etc are the material sources of law. Salmond further pointed out that historical sources pertain to legal history and not to legal theory. Historical sources may become legal if they are recognized by law or incorporated as a part of the law. In this article, I would deal on Custom as a source of law, Judicial Precedents, Legislations and other sources which include- religion, equity, social values, and Professional opinion of eminent jurists, Judge, etc

Importance of Custom as a Source of Law

Custom is to society what law is to the State- Salmond

Custom occupies an important place in the regulation of human conduct in almost all societies. In fact, it is one of the oldest sources of lawmaking. A custom may be defined as a continuing course of conduct which by the acquiescence or express approval of the community observing it, has come to be regarded as fixing the norm of conduct for members of society^[2]. A custom may be broadly defined as a usage observed by the people and recognized by the courts on their fulfillment of certain conditions. It is a usage observed by a large majority of people as a matter of habit and its continuance has acquired a legally binding force^[3].

Halsbury stated that “custom is some kind of special rule which is in actual existence or possibly followed from time immemorial and which has acquired the force of law in a specified territory, although it may be contrary or inconsistent with the general law of the land”^[4].

According to Savigny, the main founder of German historical school. Custom is essentially a product of natural forces associated with the popular spirit of acceptance by the people.  According to Markby “nothing more is necessary for the growth of customs than that people should have some tradition of what their forefathers did before him, that they should repeat the same conduct on similar occasions, and that they should be convinced that what they do is right”^[5].

Customs are not laws when they arise, but they are largely adopted into law by the State recognition. It is not necessary that courts should always recognize all the practices which are prevalent in a community. For e.g., there is a practice among the Hindus that the male relatives of the deceased shave off their heads as a mark of condolence, but if a man does not follow this custom, the court is certainly not going to punish him. On the other hand, there are certain customs that are binding and are enforceable by a court of law since they are backed by the sanction of the state. For instance, a Hindu marriage solemnized without the performance of Saptapadi is not legally valid and can be set aside by the court. The Privy Council recognizing the importance of customs in Hindu law, in the case of Collector of Madura v. Moto Ramlinga^[6]  observed that “clear proof of usage will outweigh the written text of the law.

Broadly speaking, there are two kinds of custom, namely, (1) Conventional custom, (2) Legal Custom.

• Conventional Custom- A conventional custom 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. The development of conventional custom essentially involves three stages. Firstly, it must be so well established as to have attained the notoriety of a usage. The existence of usage must be proved on the basis of evidence. In its second stage of development conventional custom gets recognition through a judicial decision. At this stage, it assumes the form of a precedent, after having passed through these two stages the conventional custom is finally accepted as a statutory law after its codification. This is the third stage of development. The law relating to the Bill of Exchange and most of the provisions of the Sales and Goods Act has their origin in the conventional customs and usages which were followed from the time immemorial^[7]. A conventional custom shall be recognized as law as long as it is not contrary to the general law of the country. It should be consistent with statute law; it cannot alter the general law of the land.
•  Legal Custom- are those which are operative per se as binding rules of law independent of any agreement between the parties. Legal customs are of two types namely (I) Local Custom (ii) General Custom
• Local Customs – A local custom is that which prevails in some defined locality whereas a general custom is operative throughout the realm. A local custom to be valid should be certain, reasonable, continuous, permanent, and should not be contrary to any existing law. It should be practiced by the people voluntarily and not out of the fear of the force of the state.
•  General Custom- A general custom is usually practiced by all the people living in the country and it is prevalent throughout the land. Until the 18th century, the general customs of England were recognized as common law[8] but today it is not so. According to Keeton, a general custom must satisfy certain conditions if it is to be a source of law.  It must be reasonable, followed, and accepted as binding. It must be in existence from the time immemorial and should not be in conflict with the statute law of the country, Nor contrary to the common law of the land.

Essentials of a Valid Custom

 Reasonableness- A custom must be reasonable. It must be remembered that the authority of prevailing custom is never absolute, but it is authoritative provided it conforms to the norms of justice and public utility. Dr. Allen observed, “The true rule seems to be not that custom will be admitted if reasonable, but that it will be admitted unless it is unreasonable.”  In Asarmulla v. Karamatullah Privy Council held that the period of ascertaining whether a custom is reasonable or not is the period of its inception.[9] Sir Edward Coke pointed out that custom is contrary to reason if it is opposed to the principles of justice, equity, and good conscience.

1. Consistency- A custom to be valid must be in conformity with statute law. In other words, it should not be contrary to an Act of Parliament.

According to the Windshield power of customary law is equal to that of statutory law and therefore, it may not merely supplement, but also derogate from the existing law.

1. Continuity and Immemorial Antiquity- A custom to be valid should have been continuously in existence from the time immemorial. Blackstone stated that “A custom in order to be legal and binding must have been used so long that the memory of man does not run to the contrary. If anyone can show the beginning of it, it is no good custom^[10]. Justice Rankin in Baba Aryan v. Saboosa^[11] decided that though the existence of custom from unknown (immemorial) time is not deemed necessary to give it legal validity, it should be continued in existence for a long time. He observed that the long existence of custom gives it the force of a right to make it legally recognizable.

Legislation as a source of Law

The term ‘legislation’ is derived from the Latin word legis meaning law and latum which means “to make” or “set”. Thus legislation means ‘making of law’ it is the source of law that consists of the declaration of legal rules by a competent authority. There are two reasons why legislation is regarded as one of the most effective sources of law. Firstly, it involves laying down legal rules by the legislature which the state recognizes as law. Secondly, it has the force and authority of the state.  In a strict sense, the term legislation means enacted law or statute law passed by the supreme or subordinate legislature. Gray pointed out that legislation includes “formal utterances of the legislative organs of the society.” Salmon observed that legislation is the source of law that consists of the declaration of legal rules by a competent authority.^[12]

Subordinate Legislation

Subordinate legislation proceeds from any authority other than the sovereign power. It is dependent for its continued existence and validity on some supreme authority. In India, however, the parliament is sovereign but not supreme although it possesses the power of supreme legislation^[13]. In order that the exercise of delegated legislative power may be valid, certain conditions must be satisfied. These conditions are:-

• The parent Act, i.e., the Act under which the power to make subordinate legislation is exercised, must be valid.
•  The delegation clause in the parent Act must be valid.
•  The statutory instrument so made, must be in conformity with the delegation clause in point of (a) substance^[14],(b) procedure, and (c) form.
•  The statutory instrument must not violate certain general norms laid down by judicial decisions e.g., norms regarding the ouster of court jurisdiction, imposing a penalty or tax, giving retrospective effect, etc.
•  The statutory instrument must not violate any of the fundamental rights^[15] guaranteed by the constitution or any other provision of the constitution.

Kinds of Subordinate Legislation

The chief forms of subordinate legislation are as follows:-

Executive Legislation– The legislature, i.e., the Parliament quite often delegates its rulemaking power to certain departments of the executive organ of Government. The rules made in pursuance of this delegated power have the force of law.  In the case of Union of India v. Cynide India Ltd.[16] Supreme Court held that Executive legislation in India includes the power to make rules, regulations, and bye-laws for administrative matters such as fixing of price or deciding the suitable place for markets, taxation, setting up incorporated bodies[17], etc

Judicial Legislation– In certain cases, legislative power of rule- making is delegated to the judiciary and the superior courts are authorized to make rules for regulation of their own procedure in exercise of this power. This is known as Judicial Legislation. The Constitution of India has conferred the power of rule-making to the Supreme Court under Article 145. Similar power is conferred to the High Court under Article 227 of the Constitution.  Article 145 empowers the Supreme Court to make rules relating to the following matters:-

1.  For setting up norms for practicing lawyers
2. For the procedure of appeals and time- limit for such appeals
3. For the transfer of cases to different High Courts
4. For proceedings relating to the enforcement of fundamental rights
5. For disposal of criminal appeals coming from High Courts.
6. For laying down conditions for review petitions
7. For making rules relating to costs and fees etc.

Delegated Legislation

Delegated Legislation is legislation made by any authority other than the legislature. It denotes the rules, orders, notifications, bye-laws, or directions made by the executive authorities under the law passed by the Parliament. It also means the output of the exercise of power. Delegated legislation is further deemed necessary to meet the cases of emergency arising of war, insurrection, floods, economic depression, epidemics, etc. The executive must, therefore, be armed with rulemaking power so that it may initiate appropriate remedial action immediately without waiting for the law to be passed by the legislature which is a lengthy process.

There are three procedures according to which delegated legislation can be controlled

1.Procedural Control

2. Parliamentary Control

3. Judicial Control.

Conditional Legislation

When a legislature confers law-making power upon some other body, the legislative power is said to be delegated and it is a case of delegated legislation. But when the Legislature itself enacts the law and gives to some other body only the power of determining when it should come into force or when it should be applied to a particular area or territory of the state, there is no delegation of legislative power. Instead, it would be a case of conditional delegation. Conditional delegation takes place where the Legislature empowers the executive to;

1. Extend the operation of an existing law to a particular area or territory
2.  Determine the time of application of an Act to a given area:
3.  Determine the extent and limits within which it should be operative;
4.  Introduce a special law if the contemplated situation has arisen in the opinion of the Government
5.  Extend the duration of a temporary Act, subject to a maximum period fixed by the Legislature.

The Patna High Court in Raghunath Pandey v. State of Bihar^[18]  made a distinction between Conditional Legislation and observed that in conditional legislation, the law is complete in itself and certain conditions are laid down as to how and when the law is applied by the delegate, Conditional Legislation has proved to be very useful in implementing the modern socio-economic welfare schemes.

 Precedent as a source of law

Precedents have binding force on judicial tribunals for deciding similar cases in the future.

In countries like Germany, France, Italy, judicial precedents have only instructive value and are not authoritative. According to Salmond, the doctrine of precedent has two meaning, namely (1) in a loose sense precedent includes merely reported case- law which may be cited and followed by the courts (2) in its strict sense, and precedent means that case- law which not only has a great binding authority but must also be followed.  Two factors are responsible for precedent to become binding.

(I)  It must have been pronounced by a Court which is sufficiently senior: and (ii) it is the only ratio decidendi i.e.  Reasoning behind the decision which is binding.

A judicial precedent is purely constitutive in nature and never abrogative. The process of judicial decision making may either be deductive or inductive. The deductive method is associated with codified systems of law. It assumes that the legal rule applicable to any particular case is fixed and certain and the Judges are required to apply this rule as justice according to the law without any reference to his personal view. On the other hand, the inductive method is a characteristic of English law, it starts with the primary object of finding the general principle applicable to the particular case, but it does not conceive the rule as being applicable directly by the simple method of deduction. It rather moves from particular to the general. The weight which judicial precedents carry to the decision of a case widely varies depending on the legal system of the country concerned. In England and United States a reported case may be cited with almost as much authority as an Act of the Parliament, but in continental countries[19], it does not carry the same weight and a Court cannot be restrained from taking the same view as taken in the earlier case. In India, the decisions of the Supreme Court have an authoritative and binding force so long as they are overruled by the Supreme Court itself ^[20]

Kinds of Precedents.

Precedent may either be authoritative or persuasive. An authoritative precedent is one that has a binding force and the Judge must follow it whether he approves it or not. Authoritative precedents are the decisions of the superior court of justice which are binding on subordinate courts.

Persuasive precedent, on the other hand, is one which the Judges are under no obligation to follow but which they may take into considerations. Thus it could rightly be stated that authoritative precedents are the legal sources of law while persuasive precedents are merely historical sources.

Persuasive precedents may be of various kinds, namely:-

1. Foreign judgments.
2. The decision of superior courts to other parts of the British Empire,
3. Judgments of the Privy Council when sitting as the final Court of appeal from the colonies
4. Judicial dicta (obiter dicta).
5.  Authoritative textbook and commentaries.

There are some circumstances which destroy or weaken the binding force of judicial precedents either partially or totally they are as follows:-

1. Ignorance of Statue.
2. Inconsistency between earlier decisions of the Higher Court.
3. Inconsistency between earlier decisions of the court of the same rank.
4.  Precedent sub silentio.
5. The decision of the equally divided court.
6. Dissenting judgments.
7. Erroneous decisions.
8.  Abrogated decisions.
9.  Affirmation or reversal on a different ground.

Declaratory Theory of Precedents.

According to Blackstone the function of a Judge is to discover in the existing law the principles that govern the facts of individual cases. Thus Judges maintain and explain the existing law^[21]; hence they are law-finders and not law-makers. Jeremy Bentham however does not subscribe to the above view regarding the declaratory theory of precedents. He calls this theory as an Orthodox view which is a willful falsehood having for its object stealing of legislative power by and for hands which could not openly claim it. Austin calls declaratory theory as hypocritical and a childish fiction employed by common law Judges that law is not made by them^[22]. According to Blackstone precedents are merely interpretative of the existing law; they do not create new law^[23].

Conclusion

All the above-mentioned sources of law i.e. Custom, Legislation, and Precedents have played a very important role in building law. A custom may broadly be defined as a usage observed by the people and recognized by the courts on the fulfillment of certain conditions. It is a usage observed by a large majority of people as a matter of habit and its continuance has acquired a legally binding force[24] or in simple terms, it could be stated as When people repeat the same action again and again, it assumes the form of “habit” and when habit continues to be in practice for a long time it becomes custom.

Whereas Legislation can be regarded as the source of law which consists of the declaration of legal rules by a competent authority. It includes formal utterances of the legislative organs of the society. According to Bentham and John Stuart Mill, the legislation includes both the process of law-making and the law evolved as a result of this process.

And last Precedents leads to the certainty of law and also the predictability of decision is always preferable to an approximation of ideals and enables illogical and unsatisfactory decisions to be overruled to meet the ends of justice. In India, the decisions of the Supreme Court are binding on all the courts in India and they constitute authoritative precedents.

Article 141 of the Constitution of India gives constitutional status to the doctrine of precedent in respect of law declared by the Supreme Court of India.

So from the above-mentioned discussion, it could be rightly said that “Courts do not make laws but they fuel life into the dead words of the statues.”

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^[1] Fuller L : Anatomy of the Law, p.69

^[2] Dias & Hughes: Jurisprudence, (1957) p.34

^[3] Legal Glossary published by the Govt. of India in 1992 p.86.

^[4]  (1876) IA 259.

^[5] Markby : Elements of law p.44

^[6] (1868) 12 MIA 397

^[7] Dias & Hughes: Jurisprudence (1957) p.47

^[8] Best, J., in Blundell v. Catterall, (1821) B & Ald 297.

^[9] (1937) Cal 245

^[10] Blackstone: Commentaries, p, 76

^[11] (1943) 2 MLJ 186 (189)

^[12]  Salmond : Jurisprudence (12th ed) p.115

^[13] Indian Constitution is supreme hence Parliament is subject to constitutional limitations.

^[14] S.O.T v. Abraham, AIR 1967 SC 1823

^[15] Narendra Kumar v. Union of India, AIR 1960 SC 436

^[16] AIR 1987 SC1802

^[17] Sunder Jus Bhathija v. District Collector , Pune AIR 1990  SC 306

^[18]  AIR 1982 Pat. 1.

^[19] The legal system of Italy, Prussia, Austria , Scotland, France, Belgium etc precedents only have quasi- authoritative value.

^[20] Golakh Nath v. State of Punjab

^[21] Jurisdicere  et non just dare, Blackstone’s Commentaries, Vol. 1, p.69

^[22] Austin : Jurisprudence p.655

^[23] Carter: Law its Origin Growth and Functions, p.185

^[24] Legal Glossary published by Govt. of India in 1992 p.86