SOURCES OF LAW
The sense of the word “sources of law” varies from writer to writer. To denote the sovereign or the state that makes and enforces the rules, positivists use the phrase. To refer to the origins of law, the historical school uses the term. It is used by some to denote the law’s causes or subject matter. In his Anatomy of the Law, Prof. Fuller notes that a judge interprets those laws and uses them to resolve a case. Such rules are collected from different locations known as “sources.” Examples of common sources of law, such as codified rules, judicial precedents, customs, legal texts, expert opinions, morality, and equity, are also provided. Holland defined the term to mean the origins of law-related information. Codified laws, judicial precedents, customs, juristic writings, expert judgments, morality, and equity are common sources of law. With the increasing popularity of the philosophy of constitutionalism, the central role in all the different sources of law is held by legislation and precedents. In the article, let us discuss the origins of legislation.
No definite classification of the origins of law exists. According to their interpretation of the definition of the word, numerous thinkers and jurists have provided their own classifications.
There are two primary sources of law, according to Salmond: formal and material. Formal origins are those from which the law derives its authority and power, i.e. the will of the State reflected by the laws and decisions of the judiciary. He sub-divided the origins of material into legal and historical origins. Legal sources include legislation, precedents, customs, agreements, and professional opinions. They are authoritative in nature and origin and are followed as a matter of law by the courts. Historical sources, on the other hand, are those that are initially contained in an authoritative form and are eventually embraced and translated into legal concepts. Domestic precedents, however, are legal sources, while international precedents are historical sources. Critics think that Salmond’s division of sources into formal and material sources is unsatisfactory.
The classification of the origins of law by Keeton has arisen as a criticism of the classification by Salmond. He describes the word as those materials that essentially fashion the law through judicial action. He divided the law sources into binding sources and convincing sources. Binding sources are those which the courts have to obey. Examples of such sources include law, legal precedents, and customs. Persuasive sources are those that come into play when any specific topic lacks any binding source. Examples of persuasive sources of law are international precedents, professional judgments, and standards of justice or equity.
COMMON SOURCES OF LAW
The common sources of law are as follows:-
From the Latin word legis meaning law and latum meaning to create, the word legislation was derived. Legislation, therefore, applies to the making of a statute. “Salmond describes the law as,” Legislation is the source of law that consists of a competent authority’s declaration of legal laws. “According to Gray, the legislation applies to” the formal statements of society’s legislative bodies.
The jurisprudence analytical school considers the rule to be a series of commands given by a sovereign authority. This command is what is referred to as a statute, and the law is known as the method of creating a statute. Analytical positivists believe that statute is the only true source of law and disapprove of the legislative roles of the judiciary. Besides, they do not accept customs as a legitimate source of legislation. The historical school, on the other hand, finds regulation to be the “least innovative” source of law. They claim that legislation only gives the customs that have been established by the people a proper form and structure. The two opposite extremes of legislation as a basis of law are both opinions. While the analytical school considers law as the only source of law, it is disregarded as a source of a new law by the historical school.
Salmond divided laws into supreme and inferior laws:-
Supreme Legislation-Supreme law refers to the laws produced by the exercise of the State’s sovereign power. Only the legislative body which has passed the laws has the right to repeal or change those laws.
Subordinate Legislation– Subordinate law applies to the rules of a body other than the State’s sovereign force. The body which enacts supreme laws is constantly supervised by such laws. Delegated legislation, which is very common in the contemporary world, is one of the forms of sub-ordinate legislation.
In almost all legal systems worldwide, judicial precedents are regarded as a significant source of law, especially in systems based on common law. As a legitimate source of law, some writers ignore precedent entirely. Stobbe believes that the precedent applies to the practice of law and it is not possible to accept the actual application of anything as a source of the same thing. He adds further that a court has the power to depart from its previous practices and that one court’s practices might not be binding on another. Keeton opposes Stobbe’s aforementioned view and insists that a judicial precedent is a legitimate source of legislation. He describes a judicial precedent as a judicial decision with a certain amount of power attached to it. The power is due to two factors. Next, a high position is occupied by the judges, both politically and socially.
Second, the essence and meaning of the problems that they determine to grant their decisions a certain amount of authority. Blackstone argues that in the future, as similar points occur for judicial deliberation to “hold the scales of justice even and steady,” previous judicial decisions must be binding.
It is possible to categorize judicial precedents into the following kinds:-
Authoritative and Convincing– A legal precedent that is binding on the court is an authoritative precedent. They are considered to be the legitimate origins of legislation.
Absolute and Conditional– The definitive existence of both absolute and conditional precedents. The court is expected to follow utter authoritative precedents without a doubt.
The precedents of Declaratory and Original– Declaratory are those precedents that rule on an established rule of law. A settled theory of law on the topic that the courts ought to apply already exists.
Stare Decisis Definition
The Stare Decisis Concept is a doctrine or regulation that follows the rules or principles set out in previous judicial rulings unless they contravene ordinary principles of justice. It is a fairly new hypothesis because there was no legal reporting of cases and rulings of the courts historically. In India, Article 141 of the Constitution of India includes the doctrine of stare decisis, which declares the judgments of the Supreme Court binding on all courts in India. According to this rule, once several decisions have been made on a certain principle of law that resolves it, it is binding and should be followed by all courts if similar issues occur for judicial deliberation. It must be observed that it is not an astringent and rigid law. On a case-to-case basis, its applicability has to be determined. A similar view has been taken by the Supreme Court of India when ruling on its cases.
Custom is described by Salmond as an expression of justice ideals that have appealed to the national conscience. Keeton describes customs as human conduct laws that have been established by continuous use and have the force of law and are enforced by the courts. “The simplest concept of custom is that it is the uniformity of actions of all individuals under similar circumstances,” according to Carter. In his disdain for tradition as a basis of law, Austin describes them as laws of conduct that are simply followed in a non-legal context by the “governed.”
Customs is recognized as the oldest source of legislation. There were no codified rules to govern society in ancient times. Instead, some traditions involved acts that were performed so repeatedly that everyone followed them spontaneously. Never did the king make any rules. It was known that the customs made by the people were the law of the land. It has been known over time that the customs are unclear and ambiguous. This problem was overcome by the Sovereign’s formal acceptance of customs. This is how customs have been turned into legislation.
The following kinds of customs are used:
Legal Custom– Legal customs are customs with the full force of law. Regardless of the approval of the legal tradition by the parties, it is binding on them. There are two kinds: general and local customs. General customs are applicable throughout the world, while local customs are unique to a specific area.
Traditional Custom– The parties to the conflict are bound by a conventional custom only if they agree to it. These are existing practices decided upon by the parties in an arrangement or agreement between them.
Technical views and legal essays:-
Professional views and juristic writings are other sources of law. It consists primarily of judges’ obiter dicta, writings of legal practitioners, and other thinkers and scholars. While it is not a common source of law, it is very beneficial in determining the original precedents. As a source of law, some have disregarded professional opinions and juristic writings and accepted their position as complementary to the other significant sources of law. Completion
It is necessary to understand the origins of the law to interpret any law. This is why many jurists, philosophers, and legal scholars have gained a lot of attention to the subject of sources of law. The legislation is the most widely recognized source of law. The position of customs, the most important source of law in ancient times, has been reduced in modern times to a traditional one. With the increasing popularity of the concept of constitutionalism, the central role of all the different sources of law is held by laws and precedents.
Also Read: Realist School of Jurisprudence
V. D. Mahajan, Fifth Edition, Eastern Book Company,’ Jurisprudence and Legal Theory’.
W. Friedmann, Sweet & Maxwell (South Asian Edition),’ Legal Philosophy’, Fifth Edition.