SOURCES OF LAW: MEANING AND TYPES
WHAT IS LAW?
Law refers to rules or regulations backed by legal authority. It act as a guideline and applicable to all. Law is what state commands or it is a will of sovereign. Law help to govern the behaviour and help to obtain conformity. Violation of law results in punishment. In civil society law plays a very crucial role. Society cannot work smoothly without law. Thomas Hobbes describes the situation of war against all when there is no sovereign. His book “Leviathan” describes the state of nature. Purpose of law is to ensure that the justice is served and help to resolve conflicts.
There are multiples sources from where law is derived such as customs, legislation, religion, judicial decision, precedent, etc.
WHAT IS SOURCES OF LAW?
Since we have seen that there are several sources of law, in this paper we would deal with three main sources i.e. customs, precedent and legislation. Customs are known to be oldest source of law. Along with customs, traditions, norms and values also played important role in establishment of law. Laws are also inspired from religion and morality. After 13th century, legislation emerges as a major source of law. In a contemporary era, judicial decision also acts as an important source of law. Other sources of law are Justice, Equity and Good Conscience.
Customs can be defined as unwritten rules or practices that are widely followed by people and have obligatory nature. During ancient times people were governed by customs. Later these customs were adopted by other major social institutions. It took a stricter form when it was adopted by legal or political entity. It has a long history of its conversion into law. It can be better understood through a live example. During Hindu marriage ceremony, couple is supposed to take seven round of holy fire. This is a well established custom and this customary practice of seven rounds was codified in section 7 of the Hindu Marriage Act, 1955.
All customs cannot be recognised as a law. There are some essentials that customs must possess to be eligible of becoming a law. In the following paragraph we would be discussing the same. Customs must be practicing for a long period of time (antiquity). It must be known to all not practice secretly. Moreover, it need to be reasonable in nature and doesn’t violate the morality or established norms and values of the society. In addition to it, custom must not be opposite to prevailing legislation. There are several cases where customs are abrogated by law (e.g. Child marriage, dowry, etc.).
Customs are broadly divided in two categories: customs without sanctions and customs with sanctions. Customs without sanctions does not have any legal backing. They were merely followed since people are practicing it. Whereas customs with sanction is obligatory in nature. Customs with sanction are of two types: legal customs and conventional customs. Conventional customs are binding on the parties to an agreement.
Precedent or judicial precedent played very important role in a legal system of any nation. It is neither too old as customs not modern as legislation. Judicial precedent simply means previous decided judgments. It is binding on lower court.
Hierarchy plays very important role in deciding who has to follow whose decision. Higher court is bind to follow judgement of Supreme Court. Other High courts are subordinate to each other and judgement of them holds persuasive value. This hierarchical structure is given in our Indian constitution. Court plays very crucial role in interpretation of law and gives it wider aspects.
Judicial Precedent is binding in nature. It is hierarchical in nature as authority is seen while determining who has to follow whose judgement. It is also known as judge made law. Judge plays important role in widening the law.
Precedent has two parts: Ratio Decidendi and Obiter Dicta. Only ratio decidendi is binding in nature. It gives that reason used by judge while giving decision. Lower courts are obliged to follow it when same question of law arises. Whereas obiter dicta does not hold any binding authority. It is a general observation of the judge and it only has persuasive value over lower court.
Legislation word is derived from Latin language. It literally means “making the law”. It is one of the important sources of law since it is backed by legal authority.
It is widely recognised by other institutions. It has two meanings: first it means law making process and secondly, it means law itself.
From its meaning itself, essentials can be derived. Following are some of the main essential:
a. Legal backing
b. It is a law making process
c. Recognition etc.
Legislation can be divided into two parts: supreme legislation and subordinate legislation. Supreme legislation means law passed by Parliament. Subordinate legislation is made by authorities who are subordinate to the supreme authority or the delegated authority of the sovereign. Followings are the part of subordinate authority:
a. Autonomous Law
b. Judicial Rules
c. Local laws
d. Colonial Law
e. Laws made by the Executive