Sources of Law | Legal Studies for Class 11 - Humanities/Arts PDF Download

Where does law come from?

Sources of law refer to where the rules of human conduct originate. Law is derived from these sources, with different perspectives among jurists.

• Legal experts approach law's sources from various viewpoints due to its multiple meanings.
• For example, Austin sees Sovereign as the law's source, while Savigny and Henry Maine emphasize custom.
• The Natural law school views nature and human reason as legal sources, whereas theologians cite religious scriptures.
• Despite differing opinions, most societies derive law from similar sources.

Three Major Sources of Law:

1. Custom
2. Judicial precedent
3. Legislation

Custom as a Source of Law

• A custom, to be valid, must be observed continuously for a long time without interruption.
• It should be supported by the general public opinion and morality.
• Not all customs become law; for instance, the Hindu Marriages Act, 1955 permits marriages within prohibited degrees if supported by proven customs in a community.
• Custom can be defined as long-established practices or unwritten rules with binding character.
• In ancient societies, custom was a primary source of law, but its importance diminished with the rise of modern civilization.

Can Custom be Law?

• Custom is a significant source of law.
• There are differing views on whether custom is law.
• Jurists like Austin oppose custom as law due to its origin, while others like Savigny view custom as the main source of law, reflecting the will of the people.
• Saptapadi in Hindu marriages exemplifies customs as a source of law.

Kinds of Customs

• Customs can be categorized into two types: without sanction and with sanction.
• Customs without sanction are non-obligatory and followed based on public opinion.
• Customs with sanction are binding and enforced by the State.
• Legal customs are recognized and enforced by courts and can be general or local.
• Conventional customs govern agreements between parties, based on established conventions or trade practices.

Essentials of a Valid Custom

• Antiquity: Customs must have existed for a long time, possibly beyond human memory. In England, customs are evaluated back to 1189 during Richard I's reign. In India, customs need to have been in practice since time immemorial.
• Continuous: Valid customs must have been consistently practiced without interruption. Long breaks or irregularities cast doubt on the validity of the custom.
• Exercised as a Matter of Right: Customs should be openly practiced with community awareness, not in secret. They must be proven to be a recognized right, not just a doubtful practice.
• Reasonableness: Customs should align with justice and public benefit, based on rationality and reason. Customs causing inconvenience or harm rather than benefit are not considered valid.
• Morality: Customs that are immoral or against public policy are invalid. Courts have invalidated customs for immoral purposes, like the adoption of girls for immoral reasons.
• Status of Custom vs. Legislation: In modern states, new laws typically supersede customs. Hence, customs must not contradict laws. Many customs in India, such as child marriage, have been abolished through legislation. 

Importance of Custom as a Source of Law in India

Importance of Custom as a Source of Law in India

Custom played a crucial role as a legal source in ancient India. British authorities initially refrained from interfering in the personal affairs of Hindus and Muslims. Notably, the Privy Council, in cases like Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922 PC59), emphasized the significance of custom in shaping the legal system.

Regional Variations in Customs

Customs were not consistent across the entire country; distinct regions had their own unique customs and practices. These variations in customs sometimes hindered the unity of different communities within the nation.

Social Reforms and Legal Changes

During the freedom movement, efforts for social reform were concurrent. Various issues concerning women and children, such as widow remarriage and child marriage, were raised by social reformers. Post-independence, the Indian Parliament abolished several outdated customary practices through progressive legislation.

Transition Post-Independence

Following independence and the establishment of the Constitution, significant legal reforms were implemented. Hindu personal laws were codified, leading to the adoption of acts like the Hindu Marriage Act, 1955, and the Hindu Adoption Act, 1955. While custom's influence on legal decisions has waned post-independence, it still heavily impacts a substantial portion of Indian law, particularly concerning personal matters.

Judicial Precedent as a Source of Law

• Judicial precedent means prior judgments from higher courts that judges must follow due to the legal system's court hierarchy. It's a crucial source of law, bridging the gap between legislation and custom in the English legal system and other common law countries.
• In developed legal systems, the judiciary plays a vital role. While rights are typically granted through legislation, the judiciary interprets and applies laws, often establishing new principles that lower courts must adhere to.
• Understanding how courts use precedents and determining the binding parts of judicial decisions are key. This involves grasping the doctrine of precedent and the hierarchy of courts.

Doctrine of Precedent in India - A British Legacy

• Pre-Independence, the Privy Council held the highest judicial authority in British India. Post-Independence, the Supreme Court became the highest authority, with a structured court system in place.
• The Supreme Court's decisions are binding nationwide but not on itself, the Privy Council, or the Federal Court. High Courts hold authority within their jurisdiction and offer persuasive value outside it. Lower courts must follow higher court decisions within their state over decisions from High Courts in other states.

Judicial Decision Components

• Judicial decisions are split into two parts: Ratio decidendi and Obiter dicta. Ratio decidendi is the binding part, providing the reasoning behind a decision and setting a precedent for similar cases. Obiter dicta are non-binding general comments, though they carry persuasive weight.
• The precedent system functions based on court hierarchies, emphasizing the importance of understanding these structures to grasp how precedents work.

Evolution of India's Precedent System

• India's precedent system evolved during British rule, with a hierarchical court structure established post-independence under the Indian Constitution. The Supreme Court, founded in 1950, replaced the Federal Court, becoming the highest court in the country.
• India's judiciary follows a pyramidal structure, with the Supreme Court at the top, followed by High Courts, District Courts, and Sessions Courts. This uniform system exists across states with minor variations in court titles. 

Hierarchy of Criminal Justice System

Hierarchy Of Civil Judicial System

Hierarchy of Courts in India:

• Supreme Court decisions are binding on all courts in India.
• High Court decisions bind subordinate courts within their jurisdiction.
• High Court decisions are not binding beyond their jurisdiction but have persuasive value.
• Judges and Law-Making:
  • Judges interpret laws and examine their constitutionality.
  • Courts create new rights for citizens through adjudication and interpretation.
  • Debate exists whether judges make law or merely interpret existing law.
  • Some jurists believe judges discover law, while others argue judges contribute to law-making.
  • Judges like Justice P.N. Bhagwati and Justice Krishna Iyer expanded constitutional provisions through creative interpretation.
  • Indian courts, notably the Supreme Court, have established new rights like right to privacy and education.
  • Legal developments by courts, such as the Right to Education, have equal importance to laws passed by legislatures.

Legislation as a Source of Law

In modern times, legislation is considered the most crucial source of law. 

• The term 'legislation' originates from the Latin words 'legis' meaning 'law' and 'latum' meaning 'to make' or 'set'. Hence, 'legislation' signifies the 'making of law'. 
• Its significance as a source of law is evident from being supported by the sovereign's authority and being directly enacted and recognized by the State. 
• 'Legislation' is a broad term encompassing all methods of law-making. Specifically, it refers to laws enacted by the sovereign or any authorized person or institution.

Types of Legislation

Primary Legislation: Laws enacted by the Parliament are regulated by the Constitution, with Parliament having the authority to make laws independently.

Subordinate Legislation: Legislation made by authorities subordinate to the sovereign authority, enacted under delegated authority and dependent on the sovereign's will.

• Autonomous Law: Laws made by autonomous bodies like universities and companies.
• Judicial Rules: Rules made by the judiciary for administrative procedures.
• Local Laws: Laws made by local bodies like Panchayats and Municipal Corporations within their jurisdictions.
• Colonial Law: Laws made by colonial countries for their colonies, losing significance with increasing independence.
• Laws by the Executive: Delegated legislation where the executive implements laws delegated by the legislature due to increased legislative workload and necessity.