Sources of law
Sources of law mean the sources from where law or the binding rules of human conduct originate. In other words, law is derived from sources. Jurists have different views on the origin and sources of law, as they have regarding the definition of law. As the term ‘law’has several meanings, legal experts approach the sources of law from various angles.For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources.
CLASSIFICATION OF SOURCES OF LAW
Salmond, an English Jurist, has classified sources of law into the following categories:
FORMAL SOURCES OF LAW
These are the sources from which law derives its force and validity. Alaw enacted by the State or Sovereign falls into this category.
MATERIAL SOURCES OF LAW
It refers to the material of law. In simple words, it is all about the matter from where the laws are derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may be seen that most legal systems are based on legislations. At the same time, it is equally true that sometimes customs play a significant role in the legal system of a country. In some of the legal systems, court decisions are binding as law.
Salmond divided material source into two:
Legal Sources are those Sources which are the instruments or organs of the State by which legal rules are created. Salmond has classified the Legal Sources of English Law into four divisions are as follows: a) Legislation b) Precedent c) Custom
Historical Sources of law are those which expresses the history or evolution for the principal of law and the circumstances through which it attained the form of law. These Sources are unauthoritative, they are Sources in fact but they have no legal recognition. And have only persuasive value. Historical Sources may become legal if they are recognised by law.Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source
customCUSTOM AS ASOURCE OF LAW
Custom can simply be explained as those long established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies, custom was considered as one of the most important sources of law; In fact it was considered as the real source of law. With the passage of time and the advent of modern civilization, the importance of custom as a source of law diminished and other sources such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of law. Broadly, there are two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed custom as law because it did not originate from the will of the sovereign. Jurists like Savigny consider custom as the main source of law. According to him the real source of law is the will of the people and not the will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Custom is hence a main source of law.
KINDS OF CUSTOM
Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State. These customs may further be divided into the following categories:
Legal custom is a custom whose authority is absolute; it possesses the force of law. It is recognized and enforced by the courts. Legal custom may be further classified into the following two types: General Customs:
These types of customs prevail throughout the territory of the State.
Local customs are applicable to a part of the State, or a particular region of the country.
Conventional customs are binding on the parties to an agreement. When two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of that trade. For instance an agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.
ESSENTIAL OF A VALID CUSTOM
All customs cannot be accepted as sources of law, nor can all customs be recognized and enforced by the courts. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law. These tests are summarized as follows:
In order to be legally valid customs should have been in existence for a long time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of England has been fixed for the determination of validity of customs.
A custom to be valid should have been in continuous practice. It must have been enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community. It should not have been practised secretly. Acustom must be proved to be a matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom
A custom must conform to the norms of justice and public utility. A custom, to be valid, should be based on rationality and reason. If a custom is likely to cause more inconvenience and mischief than convenience, such a custom will not be valid.
A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
STATUS WITH REGARD TO:
In any modern State, when a new legislation is enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted by the legislative bodies. For instance, the customary practice of child marriage has been declared as an offence.
In simple words, judicial precedent refers to previously decided judgments of the superior courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This binding character of the previously decided cases is important, considering the hierarchy of the courts established by the legal systems of a particular country. Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the English legal system as well as of other common law countries which follow the English legal system. In most of the developed legal systems, judiciary is considered to be an important organ of the State. In modern societies, rights are generally conferred on the citizens by legislation and the main function of the judiciary is to adjudicate upon these rights. The judges decide those matters on the basis of the legislations and prevailing custom but while doing so, they also play a creative role by interpreting the law. By this exercise, they lay down new principles and rules which are generally binding on lower courts within a legal system. It is important to understand the extent to which the courts are guided by precedents. It is equally important to understand what really constitutes the judicial decision in a case and which part of the decision is actually binding on the lower courts. Thus it can be inferred that precedents are:
1.guidance or authority of past decisions for future cases.
2.Precedents must be reported, maybe cited and may probably be followed by courts.
3.Precedents must have opinio-juris.
4.These must be followed widely for a long time and must not violate any existing statue law. 1) Authoritative Precedents
According to Salmond, an authoritative Precedent is one which Judges must follow whether they approve it or not. Authoritative Precedents are the legal sources of law. Authoritative Precedents establish law in pursuance of definite rule of law which confers upon them that effect. The authoritative Precedents must be followed by the Judges whether they approve of them or not.
Authoritative Precedents are of two kinds, Absolute and Conditional.
In case of absolutely authoritative Precedents, they have to be followed by the Judges even if they do not approve of them. They are entitled to implicit obedience.
In the case of authoritative Precedents having a Conditional authority, the Court can disregard them under certain circumstances. Ordinarily they are binding but under special circumstances, they can be disregarded.
A persuasive Precedent is one which the Judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. Persuasive Precedents are merely Historical. If Persuasive Precedents succeed in establishing law at all, they do indirectly by serving as the Historical ground of some later authoritative Precedent. They do not have any legal force or effect in themselves. The Persuasive Precedents can merely persuade the Judge but it is up to the judge to follow them or not.
3) Original Precedents
According to Salmond , an original Precedent is one which creates and applies a new rule. In the case of Original Precedent, it is law for the future because it is now applied. The number of original Precedents is small but their importance us very great, they alone develop the law of the country. They serve as good evidence of law for the future.
4) Declaratory Precedents –
According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. In the case of declaratory precedent, the rule is applied because it is already law. In case of advanced countries, declaratory Precedents are more numerous. A declaratory precedent is good as a source of law as an original Precedent. The legal authority of both is exactly the same.
An original Precedent is an authority and source of law but both original and declaratory Precedents have their own value.
Judicial decisions can be divided into following two parts:
Ratio decidendi (Reason of Decision):
Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It becomes generally binding on the lower courts in future cases involving similar questions of law. JANVIER V. SWEENEY(1919)
Ratio decidendi is decided by the later judge as he has a freedom.(distinguish act)
This is mainly because ther can be new variables which may arise in the later case.
TYPES OF RATIO DECIDENDI
1. Wambaugh’ Test
2. Halsbury’s Test
3. Goodhart’s Test
Wambaugh’s Test The Inversion Test propounded by Wambaugh is based on the assumption that the ratio decidendi is a general rule without which a case must have been decided otherwise. Inversion Test is in form of a dialogue between him and his student. He gave following instructions for this.
1. Frame carefully the supposed proposition of law.
2. Insert in the proposition a word reversing its meaning.
3. Inquire whether, if the court had conceived this new proposition to be good and had had it in mind, the decision could have been the same.
4. If the answer is affirmative, then, however excellent the Original Proposition may be, the case is not a precedent for that proposition.
5. But if the answer be negative, the case is a precedent for the Original Proposition and possibly for other propositions also.
Thus, when a case turns only on one point the proposition or doctrine of the case, the reason for the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise2. A proposition of law which is not ratio decidendi under the above test must, according to Wambaugh, constitute a mere dictum.
However, Rupert Cross criticized the Inversion Test on the ground that “the exhortation to frame carefully the supposed proposition of law and the restriction of the test to cases turning on only one point rob it of most of its value as a means of determining what was the ratio decidendi of a case, although it has its uses as a means of ascertaining what was not ratio”.
Thus, the merit of Wambaugh’s test is that it provides what may be an infallible means of ascertaining what is not ratio decidendi. It accords with the generally accepted view that a ruling can only be treated as ratio if it supports the ultimate order of the court.
The concept of precedent has attained important role in administration of justice in the modern times. The case before the Court should be decided in accordance with law and the doctrines. The mind of the Court should be clearly reflecting on the material in issue with regard to the facts of the case. The reason and spirit of case make law and not the letter of a particular precedent4.
Lord Halsbury explained the word “ratio decidendi” as “it may be laid down as a general rule that that part alone of a decision by a Court of Law is binding upon Courts of coordinate jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon which the question before the Court has really been determined. This underlying principle which forms the only authoritative element of a precedent is often termed the ratio decidendi”.
In the famous case of Quinn v. Leathem5, Lord Halsbury said that:
“Now, before discussing the case of Allen v. Flood6 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”
Thus, according to Lord Halsbury, it is by the choice of material facts that the Court create law.
In 1929, Goodhart had argued that the ratio of a case must be found in the reasons for the decision and that there is no necessary connection between the ratio and the reasons. He laid down following guidelines for discovering the ratio decidendi of a case7:
1. Ratio decidendi must not be sought in the reasons on which the judge has based his decision.
2. The reasons given by the judge in his opinion are of peculiar importance, for they may furnish us with a guide for determining which facts he considered material and which immaterial.
3. A decision for which no reasons are given does not necessarily lack a ratio; furthermore, the reasons offered by a court in reaching a decision might be considered inadequate or incorrect, yet the court’s ruling might be endorsed in later cases – a ‘bad reason may often make good law’.
4. Thus, ratio decidendi is whatever facts the judge has determined to be the material facts of the case, plus the judge’s decision as based on those facts. It is by his choice of the material facts that the judge creates law.
If we accept Goodhart’s conception of ratio decidendi, we could explain why hypothetical instances are unlikely to be accorded the same weight as judicial precedents as hypothetical instances are by definition obiter dicta8. Also, this conception of ratio decidendi links the doctrine of precedent with the principle that like cases be treated alike. Any court which considers itself bound by precedent would come to the same conclusion as was reached in a prior case unless there is in the case some further fact which it is prepared to treat as material, or unless fact considered material in the previous case is absent9
A written opinion filed by a judge which agrees with the majority decision, but which expresses his or her different reasons for the decision, or a different view of the facts of the case, or of the law.
Although most people focus on the actual outcome of a Supreme Court or appellate court decision, the fact is, opinions matter. When a Supreme Court justice writes a concurring opinion, it signals he agrees with the ultimate decision made by the majority of the court, but not with the reasons the decision was reached. The justice writes his own rationale for the final decision, shining a light on another viewpoint. When multiple justices prepare concurring opinions, it is called a “plurality decision,” as a majority voted on the final judgment, but there were several reasons for the decision. Because legal experts find it necessary to understand where there may be uncertainty regarding the law, which leads to instability in the justice system. For this purpose, both concurring and dissenting opinions are classified primarily as “liberal” or “conservative,” though they may be further broken down during research.
Attorneys often refer to majority opinions in the course of trying a case, which provides precedent, or a legal standard by which similar cases have been decided. Because they do not express the opinion of the majority of the court, concurring opinions are not legally binding, and cannot be referred to as such. Concurring opinions can, however, offer a view into the appellate court’s thought process in making its decision, and pave the way to viewing a current case differently. Some judges have an open mind when it comes to considering these opinions, and developing new legal rules as a result.
An ‘obiter dictum’ refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. However, obiter of a higher judiciary is given due consideration by lower courts and has persuasive value.
The judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum.
The binding part of a judicial decision is the ratio decidendi. An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive (as opposed to binding) authority in later cases.
The Regional Manager and another v. Pawan Kumar Dubey, AIR 1976 SC 1766:; 1976(3) SCC 334.
A dissenting judgement
A judgment heard by a tribunal, and one judge dissented from the decision. The judge in the next case can decide to follow the dissenting judge’s obiter and rationale. The judge can only opt to overturn the holding of a court lower or equivalent in the hierarchy, however. A district court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
The doctrine of stare decisisWhat is the doctrine of precedent or of stare decisis? Professor Gall described it in the following terms:
The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. “Stare decisis” literally translates as “to stand by decided matters”. The phrase “stare decisis” is itself an abbreviation of the Latin phrase “stare decisis et non quieta movere” which translates as “to stand by decisions and not to disturb settled matters”.
Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge’s reputation may affect the degree of persuasiveness of the authority.
What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.
The ratio decidendi reason of deciding of a case can be defined as the material facts of the case plus the decision thereon. The same learned author2 who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.3
LEGISLATION AS ASOURCE OF LAW
In modern times, legislation is considered as the most important source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means “to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign, and it is directly enacted and recognised by the State. The expression ‘legislation’ has been used in various senses. It includes every method of law-making. In the strict sense it means laws enacted by the sovereign or any other person or institution authorised by him.
KINDS OF LEGISLATION
When the laws are directly enacted by the sovereign, it is considered as supreme legislation. One of the features of Supreme legislation is that, no other authority except the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this category, as the British Parliament is considered as sovereign.
Subordinate legislation is a legislation which is made by any authority which is subordinate to the supreme or sovereign authority. It is enacted under the delegated authority of the sovereign. The origin, validity, existence and continuance of such legislation totally depends on the will of the sovereign authority. Subordinate legislation further can be classified into the following types.
When a group of individuals recognized or incorporated under the law as an autonomous body, is conferred with the power to make rules and regulation, the laws made by such body fall under autonomous law. For instance, laws made by the bodies like Universities, incorporated companies etc. fall in this category of legislation.
In some countries, judiciary is conferred with the power to make rules for their administrative procedures. The Supreme Court and High Courts have been conferred with such kinds of power to regulate procedure and administration.
local bodies(municipal authorities) are recognized and conferred with the law-making powers. They are entitled to make bye-laws in their respective jurisdictions. The rules and bye-laws enacted by them are examples of municipal law.example(water tax,property tax,town planning tax)
Laws made by colonial countries for their colonies or the countries controlled by them are known as colonial laws. For a long time, However, as most countries of the world have gained independence from the colonial powers, this legislation is losing its importance and may not be recognized as a kind of legislation.
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in one authority or it may be distributed among the various organs of the State. In most of the modern States, sovereignty is generally divided among the three organs of the State. The three organs of the State namely legislature, executive and judiciary are vested with three different functions. The prime responsibility of law-making vests with the legislature, while the executive is vested with the responsibility to implement the laws enacted by the legislature. However, the legislature delegates some of its law-making powers to executive organs which are also termed delegated legislation. Delegated legislation is also a class of subordinate legislation. In welfare and modern states, the amount of legislation has increased manifold and it is not possible for legislative bodies to go through all the details of law. Therefore, it deals with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps. This increasing tendency of delegated legislation has been criticized. However, delegated legislation is resorted to, on account of reasons like paucity of time, technicalities of law and emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.
An Agreement is the state of being in accord of conformity such as to agree to the details of a transaction. An agreement may be defined as the expression by two or more persons communicated to each other of a common intention to affect the legal relations.
According to salmond an individual is most important person to protect his or her own intrest .agreement related to price/market sharing is considered as void.
Application of the Doctrine in India
Article 141. Law declared by Supreme Court to be binding on all courts: The law declared by the Supreme Court shall be binding on all courts within the territory of India.
The doctrine of precedent is expressly incorporated in India by Article 141 of the Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court are binding on all courts within the territory of India. Although there is no express provision, but by convention the decisions of a High Court are binding on all lower courts within the territorial jurisdiction of that High Court. Similarly, a decision of a higher Bench 3 , is binding on the lower Bench.
When two interpretations of a statute are possible, the Court may prefer and adopt the purposive interpretation having regard to object and intent of such a statute. Article 141 states that the law declared by the Supreme Court shall be binding on all Courts. To give this article a purposive interpretation it was settled that the expression ‘all the courts’ means all the Courts except the Supreme Court.
The Supreme Court is said to be the Guardian and Custodian of the Constitution and is vested with the magnificent task of interpreting and implementing the provisions of the Constitution to the best of the public interest and welfare. Hence in interpreting Article 141 of the Constitution of India the Supreme Court in the case Bengal Immunity Co. V State of Bihar (AIR 1955 SC 661)laid down that there is nothing in the Constitution of India which stops or prevents the Supreme Court in digressing from its previous decision if it is convinced of its error and its toxic effect on the general interest of the public. In addition to it the Court held that it is compulsory for the judicial conscience to rectify its error.
It can be judged that the Supreme Court in giving such an interpretation to Article 141 has given the utmost significance to the interest of the society and people at large and has demonstrated a mark of heroism in showing the courage and valour to accept and rectify its mistakes rather than allowing it to perpetuate into the country’s polity and the legal set-up of the judiciary.
Justice Bronson in Pierce v. Delameter (AIR 2011 SC 1989) dealing with the similar view held that a judge ought to be wise enough to know that he is fallible and, there, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead: and courageous enough to acknowledge his errors.
143. Power of President to consult Supreme Court.
(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon
(xii) Gujarat Assembly Election Matter, (2002) 8 SCC 237: AIR 2003 SC 87.
. In August 2002, the President Dr. Abdul Kalam sought advice of the Supreme Court under Article 143 in connection with the controversy between the Election Commission and the Government on elections in Gujarat. The issues related to the limits on the powers of the Election Commission under Article 324, the impact of Article 174 on the jurisdiction and powers of the Commission and whether the Commission could recommend promulgation of President’s rule in a State. The President may also seek the opinion of the Supreme Court, through a similar reference on any treaty or on matters in the Union List, as Parliament may by law confer.