Analysis of Sources of Law In India

Table of Contents

INTRODUCTION

The study of Sources of Law is the study of various phases of its development that gave it new drive and vigor and enabled it to verify the dynamical wants. Law is not static, since society is constantly evolving, legal guidelines also are changed to keep pace with the necessities of society.

There are as many interpretations of the expression ‘Sources of Law’ as there are schools and theories regarding the concept of Law. Therefore, it is not practicable to offer a particular and definite meaning of Law which may hold good for all times to come.

The term sources of law have been interpreted by different writers in multiple ways and it has been used in various contexts. The basic features of a legal system are found in its authoritative sources and the nature and working of the legal authority behind these sources. In India, sources of law are used in two contexts, firstly according to Hindu scriptures, duty is the foundational head of all law and secondly, it means where one must resort to getting at law.

EXPOUND THE TERM “TEST IDENTIFICATION PARADE’’

In modern jurisprudence also, the term sources of law is used in two contexts. Firstly, it is used in the sense of State or the sovereign from which law derives its force and validity, and secondly, it is used to indicate the motive of regulation or the contents of which regulation is composed. According to Fuller, the sources of regulation consists of the material from which the judge obtains rules for figuring out the cases and it consists of statutes, judicial precedents, customs, opinion of legal experts, jurists, etc. This paper is an attempt to discuss in brief the sources of law and its kind. An attempt has been made to present an overview of the sources of law in India.

KINDS OF SOURCES OF LAW

Sources of law can be classified as formal sources and material sources.

1) Formal Sources

The formal sources of law are referred to as the actual or ultimate sources of law. Salmond described formal sources of law as that from which a rule of law derives its force and validity. For Example, formal sources of law include written records or the decisions of Courts enacted by the State or Sovereign.

2) Material Sources

The material sources of law are the ones that give the matter or content of a principle of law. As the phrase material prescribes, the material sources deal with the substance, factors, or constituent material of law. Material sources of law derive only its matter and not validity. According to Salmond, material sources are especially of two kinds –

Historical Sources: Historical Sources of law are the ones that express the history of evolution for the foremost of regulation and the occasions through which it attained the form of law. These Sources are non-authoritative, they may be sources in reality however they have no legal recognition and have only persuasive value. Historical Sources might also additionally grow to be legal if they may be regarded through law.
Legal Sources: Legal Sources are the sources that are devices or organs of the State through which legal guidelines are created. The Legal Sources are categorized into four elements which are as follows:

1. Customs, which incorporate standard law;
2. Legislation, which consists of enacted law made by both, Central as well as the State legislature;
3. Precedents, comprising case law or judicial decisions; and
4. Agreements or conventional law.

CUSTOM AS A SOURCE OF LAW

Customs hold a vital role in the law of human behaviour in nearly all societies. It is one of the oldest sources of lawmaking. Customs can be described as a utilization discovered through the human and identified through the courts on the fulfilment 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. However, the significance of custom as a source of law is constantly declining because of the growth of the legal system. This is because of the emergence and growing power of the state, the custom is essentially outdated by way of means of legislation as a source of law. Customs are essential of two kinds:

Conventional Customs: A conventional or traditional custom is also referred to as usages. It is a longtime exercise whose authority is contingent upon its acceptance and incorporation in the agreement among the parties who are bound by it. In Baba Narayan v. Saboosa[1], Justice Rankin observed that in India while a custom need not be immemorial the requirement of long usage is important, Since it is from this that custom derives its force as governing of the party’s right in place of the overall general law of the land.
Legal Customs: Legal Customs are the ones that might be operative in step with binding policies of regulation impartial of any settlement between the parties. Legal customs are of two types:

- Local Customs: A custom which prevails in a few described localities. Local custom in order to be valid ought to be certain, reasonable, continuous, everlasting, and should no longer be opposed to any existing regulation.
- General Customs: A general or preferred custom prevails throughout the realm and constitutes one of the sources of the common laws of the country.

LEGISLATION AS A SOURCE OF LAW

There are two reasons for legislation to appear as one of the most effective sources of regulation. Firstly, it consists of laying down legal rules by the legislature which the state recognizes as law, and secondly, it has the force and authority of the state. According to Dias, deliberate law-making by an authoritative power that is the state is called legislation provided that the authority is duly recognized as the supreme power by the courts. Legislation becomes the exclusive source of the new law with the advancing civilization. The legislation is largely derived from Latin phrases legis which means law and latum which means to make or set. Therefore, the phrase legislation means making the law. The legislation is similarly divided into two:

Supreme Legislation: Legislation is ideally suited while it proceeds from the sovereign power within the state and is incapable of being repealed, annulled, and managed by way of means of another legislative authority.
Subordinate Legislation: Subordinate Legislation proceeds from any authority aside from the sovereign power. It depends for its continued existence and validity of a few ideally suited authority

JUDICIAL PRECEDENTS AS A SOURCE OF LAW

Judicial Precedents are another vital source of law. Precedents have a binding force on judicial tribunals for identifying comparable instances in the future. It holds an authoritative significance and its miles as the legal source of regulation which the courts are sure to observe. According to Salmond, “precedent” holds two meanings: firstly, in a loose sense, precedents consist of case laws which may also be referred to and accompanied with the aid of using the courts; and secondly, in its strict sense, precedents mean that the case laws which not only has a great binding authority but must also be followed. In common-law nations, various law reforms have been introduced through acts of parliament, which are inspired by the policies of the government, but even then the precedent delivered by the court remains an effective source of law. An announcement of a regulation made with the aid of using a decision in a case can emerge as binding on later judges and different subordinate courts and in this way it turns into regulation for all and sundry to observe. Precedents emerge as binding relies upon on two important factors:

It needs to be coming from the superior court so that it has a binding effect on all the lower courts placed in the hierarchy.
It is only the ratio decidendi that is the reasoning behind the decision which is binding.

Precedents are of two kinds:

Authoritative Precedents: These are the only kind of precedents that have a binding force and the judge needs to observe it whether he approves it or not. Authoritative Precedents are the decisions of the advanced courtroom docket of justice that are binding on subordinate courts. This is a legal source of regulation.
Persuasive Precedents: Persuasive Precedents is the only wherein the judges are beneath no responsibility to observe however which they will take into consideration. These are simply ancient sources. Some varieties of them are foreign judgments, decisions of superior courts to different components of the British empire, judicial dicta, authoritative textual content, and commentaries, etc.

OTHER SOURCES OF LAW

Besides customs, legislation, precedent, and justice, equity, and sensible conscience, there are different sources of law. Religion, literary works, treaties, and opinions of experts are recognized as indirect sources of law and thus the writings of eminent jurists represent literary sources of law.

CONCLUSION

The authority is sanctioning or enforcing a law, therefore the sources of law should not be construed. It means that the law originates from the agency or that is often said that from where the rule of action came into existence. Consistent with Buddha, in such a state of affairs, the selection ought to tend that it should be acceptable to a minimum of ten folks that are knowledgeable in Shastras.

Powers & Functions of The President of India

Yajnavalkya has said that where there are conflicting rules, the selection should be supporting the ‘Nyaya’. Within the times, a law is made by legislation, or the selection of apex court i.e., in addition, a law, custom, precedent play a vital role and so the judgment of the courts is binding upon all courts.

REFERENCES

[1] (1944) 46 BOMLR 312.

[2] Dr N. V. Paranjape 379,” Studies in Jurisprudence & legal Theory”, (Central Law Agency, Allahabad, 9th Edition, 2019).

[3] Associate Aswini Ramesh, “What are the Sources of law?”, https://www.lawyered.in/legal-disrupt/articles/what-are-sources-law/, (Last Visited on September 05, 2020).

BY- Shanti Gupta |Indian Institute of Legal Studies