Test: Sources of Law - CLAT PG MCQ

Legislation has the advantage of being written and codified, which makes it clear, accessible, and easily enforceable compared to customary law, which is often unwritten and can be ambiguous. This written form allows for better understanding and application of the law in contemporary society.

For a precedent to be binding, it must be properly reported and cited in legal literature. This ensures that the decision is accessible and recognized within the legal community, allowing it to be followed by lower courts in similar future cases, thereby maintaining legal consistency.

A new law that contradicts an existing precedent can undermine its authority, effectively nullifying its binding effect. When a statute is enacted that conflicts with a previous judicial decision, the new law takes precedence, demonstrating the dynamic nature of law where legislative changes can alter established legal principles.

The requirement of 'peacefulness' indicates that a valid custom must not advocate violence. Customs that encourage harm or conflict are deemed invalid as they contradict the principles of justice and public policy, which are essential for societal stability.

Ratio Decidendi refers to the legal principle or rationale derived from a case that is applicable to similar cases in the future. It is the binding element of a judicial decision, distinguishing it from Obiter Dictum, which consists of comments made by the judge that do not hold binding authority.

John Salmond defines custom as the embodiment of principles accepted by the national conscience as just and useful. This definition highlights the role of custom in reflecting societal values and moral standards, distinguishing it from laws imposed by authority.

The Inductive Method involves judges using past decisions to form general rules applicable to current cases. This approach allows for the evolution of legal principles based on a compilation of previous rulings, thus providing a structured way for judges to make decisions in new but similar situations.

The Historical Theory posits that customs gain legitimacy from deep societal needs and the historical knowledge of communities, as articulated by Savigny through the concept of 'Volksgeist'. This theory emphasizes that customs evolve from the collective consciousness and experiences of a society over time.

Legal customs are defined as customs that possess certain and absolute sanctions, meaning they are legally enforceable and can result in penalties for violations. This distinguishes them from social customs, which may influence behavior but lack formal legal force.

Keeton critiques traditional classifications by defining sources of law as materials from which law is developed through judicial activity. He distinguishes between binding sources, which courts must follow (like statutes), and persuasive sources, which may guide but are not obligatory (like foreign precedents).

The Positivist School views legislation as the primary source and form of lawmaking. It emphasizes that laws are commands from a sovereign authority and that courts should not create law but rather apply the statutes enacted by the legislature.

'Antiquity' refers to the requirement that a valid custom must have been followed for a long time, indicating that it is deeply ingrained in society. Recent practices do not qualify as customs until they are firmly established over time, ensuring stability and continuity in social norms.

Stare Decisis is the legal doctrine that obliges judges to respect precedents established by prior decisions. This principle ensures consistency and predictability in the law, as lower courts are required to follow the legal principles established by higher courts, reinforcing the stability of the judicial system.

One significant demerit of the doctrine of precedents is the potential for erroneous decisions to become established as law, especially if they are not challenged in higher courts. This can result in outdated or incorrect legal standards being applied in subsequent cases, which undermines the integrity of the legal system.

Supreme legislation is adopted by the sovereign authority of the state and is considered legally powerful, meaning there are no legal restrictions on its capacity. For example, the Indian Parliament has this supreme legislative power, subject only to constitutional amendments.

Conventional customs derive their authority from acceptance and incorporation in agreements between parties. Unlike legal customs, which are enforced regardless of individual agreements, conventional customs depend on mutual consent and recognition within specific contexts.

Persuasive precedents, while not mandatory, can serve as influential guidance for judges in their decision-making process. They may come from lower courts or other jurisdictions and can help shape legal reasoning, especially in cases where binding precedents do not exist.

C.K. Allen describes customs as a legal and social phenomenon that arises from societal forces of reason, necessity, suggestion, and imitation. This perspective emphasizes the organic development of customs as responses to societal needs and behaviors rather than as top-down impositions.

Judicial precedents serve as authoritative examples for future cases, guiding judges in their decision-making processes. By relying on previous rulings, judges ensure consistency and stability in the application of the law. The principle of stare decisis underlines this function, requiring lower courts to follow the legal principles established in higher court decisions. This not only helps in maintaining legal certainty but also aids in the evolution of law through established judicial decisions. An interesting fact is that in many common law jurisdictions, the decisions of higher courts can become binding precedents, significantly influencing the development of legal norms over time.

John Salmond defined custom as the embodiment of principles accepted by the national conscience as just and useful. He further categorized customs into General Custom, which is applicable throughout a state, and Local Custom, which applies to specific localities. Understanding these distinctions helps clarify how different customs function within various legal and social contexts. Interestingly, the recognition of both types of customs is crucial for understanding how law adapts to local practices while maintaining a cohesive legal framework across a nation.

Customs with binding obligations are those that are seen as commitments governing aspects such as marriage and property transmission, and they carry legal penalties for violations. This legal enforceability distinguishes them from social customs, which may influence behavior but do not have legal repercussions. The existence of binding customs emphasizes the role of law in regulating social conduct and protecting rights within a community. An interesting fact is that these customs often evolve into statutory laws as societies formalize their practices over time.

For a custom to be considered valid, it must demonstrate continuity over time, indicating that it has been consistently practiced without interruption. This requirement, along with others such as reasonability, conformity with statute law, and public policy alignment, helps ensure that customs are deeply embedded in societal norms. The continuity of customs reflects the stability of social order and the cultural heritage of a community. Interestingly, many customs that have persisted for generations often become integral parts of a society's identity and legal framework.

The Historical Theory of customs, associated with thinkers like Savigny, emphasizes that customs gain legitimacy from the deep-rooted needs of society and the accumulated knowledge of communities throughout history. This perspective highlights the organic nature of law, suggesting that customs evolve from the lived experiences and values of people rather than being arbitrarily imposed. An intriguing aspect of this theory is that it recognizes the importance of cultural identity and historical continuity in shaping legal norms, which can vary significantly across different societies.

Violent advocacy is not a requisite for a valid custom; in fact, any custom that promotes violence is considered invalid. Valid customs must align with principles of morality, justice, and public policy. They should be reasonable, clear, and consistent with existing laws and legal principles. This requirement underscores the importance of customs in promoting social harmony and ensuring that they do not infringe upon the rights or safety of individuals. An interesting fact is that the invalidation of violent customs reflects a society's commitment to upholding human rights and the rule of law.

Delegated legislation refers to laws made by individuals or bodies to whom Parliament has delegated law-making powers. This type of legislation allows for the effective implementation of principal acts while ensuring that the legislative body retains ultimate authority over the law-making process.