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SOURCES OF LAW

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This article is written by Dixita Baishya of BALLB of 5th Semester of University Law College, Gauhati University, an intern under Legal Vidhiya.

Abstract

This article explores the various sources of law and their roles in shaping legal systems. It begins by discussing constitutional law , which provides the foundational legal framework for governance and the protection of individual rights. The article then examines international law, focusing on how treaties, conventions, and customary practices govern relations between nations. Further, it covers legislation, which consists of formal written laws passed by governing bodies, and judicial precedents, where past court decisions guide the application of laws. The article also addresses customary law, derived from traditional practices accepted as binding by communities. The article analyzes how these sources interact, evolve, and sometimes create confusion in legal interpretation, especially when national and international laws intersect.

Keywords

Sources of Law, Legislation, Judicial Precedent, Customary Law, Constitutional Law, International Law, Stare Decisis, Legal Framework, Treaties, Customary Practices.

Introduction

According to Harvard Law School professor John Chipman Gray, “the law of the state or any organized body of men consists of the rules established by the courts, or the judicial branch, to determine legal rights and duties.” While Gray’s definition has been criticized for being too limited, he makes an important distinction between law and the sources of law. Gray believed that law develops through case law, while the sources of law provide the content and validity of these legal rules. Essentially, “law” refers to the set of rules or conduct, whereas the “sources of law” refer to the materials from which those rules derive.

John Salmond, a noted legal scholar in the field of jurisprudence, divided the sources of law into two main categories: material sources and formal sources.

1)Material Sources

Material sources are where the law draws its substance or content but not its authority. These can be further divided into legal sources and historical sources.

a)Legal sources: These are authoritative instruments used by the state to create legal rules. Courts follow these sources to enforce new legal principles. According to Salmond, the legal sources of English law fall into four categories:

1. Legislation

2. Precedent

3. Customary law

4. Conventional law

b)Historical sources: These sources influence the development of law but do not directly provide legal authority or validity. They shape legal rules indirectly. Unlike legal sources, historical sources are foundational for all laws, but they may or may not be legally binding. An example of historical sources would be decisions made by foreign courts.
2. Formal Sources

Formal sources are the means through which the state expresses its will. In modern times, statutes and judicial precedents serve as the formal sources of law, providing law with its authority, force, and validity.

3. Keeton’s Critique

Salmond’s classification of sources has been criticized by Keeton, who offered a different view. Keeton categorized the sources of law into:

a)Binding sources: These are sources that judges are required to apply in legal cases. Examples include statutes, judicial precedents, and customs.

b)Persuasive sources: These sources are not binding but can be considered when no binding authority is available. Examples include foreign judgments, principles of equity, morality, justice, and expert opinions.

Both legal scholars, though they differ in classification, emphasize that sources of law provide the foundational content and authority from which legal rules and principles are developed and applied in practice.[1]

Ancient Texts on Sources of Law

The Smritis, Shrutis, Vedas, and Upanishads were foundational texts in ancient Indian society, not only serving religious and philosophical purposes but also shaping legal, moral, and social norms. Their ancient relevance is deeply connected to how they structured societal behavior, justice, and governance, providing a framework for living in accordance with cosmic and moral order.

   1. Smritis and Legal Structure: The Smritis were early attempts at codifying laws and societal rules. Texts like the Manusmriti, Yajnavalkya Smriti, and Narada Smriti outlined detailed legal principles governing various aspects of life. These included family law, property rights, inheritance, and punishment for crimes.

   2. Shrutis and Social Ethics: The Shrutis, particularly the Vedas and their accompanying texts, were considered the direct revelation of divine wisdom. They played a central role in defining the ethical and moral conduct expected in society. The Vedas set out religious practices, rituals, and the concept of rta—the cosmic order that regulated both natural and human law.

   3 . Upanishads and Philosophical Guidance: The Upanishads, which emerged later than the Vedas, offered a deeper philosophical outlook on life and human existence. While the Vedas focused on rituals and the maintenance of cosmic order, the Upanishads explored the nature of the self, the universe, and the ultimate reality (Brahman). Their relevance in ancient times was in shaping the intellectual and moral framework of society.

Current examples of this legal text in our judiciary and legislation

In modern Indian legislation and judiciary, the influence of ancient texts such as the Smritis, Shrutis, Vedas, and Upanishads is still evident, particularly in personal laws and moral reasoning. Although India operates under a secular Constitution, many legal principles governing personal matters, religious customs, and societal norms have their roots in these ancient texts. 

  1. Personal Laws (Hindu Law): Hindu personal laws governing marriage, divorce, inheritance, and adoption are deeply influenced by ancient scriptures, especially the Smritis like the Manusmriti and other Dharmashastras. These texts laid down rules for family and societal conduct, which have been adapted into modern laws. – Hindu Marriage Act, 1955: While reformed for modern times, this act still reflects ideas from ancient texts, such as the notion of marriage as a sacred bond. Rituals like saptapadi (the seven steps taken by the bride and groom around a sacred fire) have their basis in Vedic traditions and are legally recognized under the Act. – Hindu Succession Act, 1956: Originally based on patriarchal rules outlined in Dharmashastras, the law has evolved. For instance, the 2005 amendment gave women equal rights in ancestral property, moving away from ancient restrictions but still rooted in the traditional importance of family property found in early texts.
  2. Religious Customs and Judicial Interpretations: Indian courts sometimes reference ancient scriptures while interpreting religious customs and practices, balancing these with modern constitutional values. – In the Sabarimala Temple case (2018), the Supreme Court had to examine whether the restriction on women’s entry into the temple was justified. Ancient texts, including Vedic rituals and Smritis, were cited by proponents of the ban, but the Court ruled that traditional customs should not override constitutional rights, such as gender equality. – The Triple Talaq case (2017), though primarily about Muslim personal law, reflects the broader principle seen in Hindu philosophy of justice, fairness, and equality. The Court ruled that instant triple talaq (divorce) was unconstitutional, emphasizing that religious practices should align with principles of justice and equality, ideas echoed in the Upanishads’ teachings on fairness and morality
  3. Environmental Jurisprudence: India’s environmental laws also draw inspiration from Vedic and Upanishadic teachings, which stress living in harmony with nature. These texts promote the protection of natural resources as a moral duty. – The National Green Tribunal (NGT), which governs environmental cases, operates in a framework where sustainable development is seen not just as a legal requirement but also as a moral one, reflecting the ancient idea of respecting nature. The Supreme Court has, in multiple cases, cited the ancient Indian view of nature’s sanctity, echoing the Vedas’ emphasis on the interconnectedness of life.
  4. Moral and Ethical Principles: The philosophical teachings of the Upanishads have a subte but significant influence on India’s judiciary when interpreting laws related to justice, equality, and individual rights. Concepts like Dharma (righteousness) and Ahimsa (non-violence) are embedded in the fabric of the legal system. Judges, when interpreting laws or constitutional rights, often rely on these broader philosophical principles to guide their decisions, especially in areas like social justice and human rights. In summary, while modern Indian law is based on the Constitution, the influence of ancient legal and philosophical texts continues, particularly in areas related to personal laws, environmental protection, and the interpretation of justice. These ancient sources are harmonized with constitutional principles to ensure that tradition and modernity coexist within the legal framework.

Legislation as a Source of Law

According to the analytical school of thought, a ‘typical law’ is essentially a ‘statute,’ and legislation is the standard process of making laws. The historical school, however, views legislation as the least creative source of law. James Carter expressed the view that law cannot truly be created through legislative action. Its primary role is to influence behavior by either offering rewards or imposing penalties in response to specific actions. Both the historical and analytical schools present extreme views. The analytical school wrongly considers legislation as the only source of law, giving little importance to customs and judicial precedents. On the other hand, the historical school errs in not recognizing legislation as a means of generating new laws. Justice J.S. Khehar, in the case of *Nidhi Kaim v. State of Madhya Pradesh*, remarked that legislation is enacted with the purpose of promoting social welfare and supporting societal interests. Legislation, he noted, stems from reason and logic.

Classification of Legislation

Salmond categorizes legislation into two types:

  1. Supreme Legislation – This refers to laws passed by the highest authority or a sovereign law-making body, such as the legislature of an independent state. It is termed supreme because no other authority has the power to revoke, alter, or regulate it. These laws cannot be nullified or amended by any other legislative body.
  2. Subordinate Legislation – This type of legislation is created by authorities other than the sovereign power and depends on the supreme authority for its validity. In India, while Parliament holds supreme legislative power, other bodies also possess powers of subordinate legislation.

Delegated Legislation

While the executive’s primary role is to enforce laws passed by the legislature, its various departments also have the authority to create rules. Subordinate legislation includes rules made by the executive branch. Delegated legislation refers to laws made by bodies other than the legislature itself. It encompasses rules, orders, or by-laws formulated by executive authorities under the law passed by Parliament. In essence, when the legislature transfers its law-making powers to another body, this process is called delegated legislation.

Reasons for Delegated Legislation include:

  1. Lack of Time – Parliament’s workload is substantial. If it were to address every minor issue and create every rule on its own, it would be able to pass only a limited number of Acts. Hence, rule-making powers are often delegated to the executive.
  2. Technical Nature of Matters– Some rules involve technical details that require expert input. It is therefore more efficient to entrust the rule-making process to experts, who are often part of the executive.
  3. Local Concerns – Some rules pertain to specific localities, groups, or professions, requiring consultation with affected parties. Therefore, certain departments are given the authority to draft rules in collaboration with the people directly involved.

Delegated legislation should not be confused with executive legislation. Delegated legislation refers to laws made by authorities that have received legislative powers from the legislature. In contrast, executive legislation consists of laws made by the President or Governor under Articles 123 and 213 of the Indian Constitution, respectively, in the form of ordinances. These ordinances have the force of law and are issued when the legislature is not in session, but they lapse if not approved within six weeks of the legislature’s reassembly. The source of delegated legislation is always a law passed by Parliament, whereas the source of executive legislation is a constitutional provision.[2]

Judicial Precedent as a Source of Law

Judicial precedents are decisions made by courts that establish legal principles. When a court issues a ruling on a case, that decision becomes a precedent that lower courts are expected to follow in similar cases. This ensures consistency and stability in the legal system. Here are some significant judicial precedents from India:

  1. Kesavananda Bharati v. State of Kerala (1973): This case established the “basic structure doctrine,” which protects the fundamental features of the Indian Constitution from being altered.
  2. Gian Kaur v. State of Punjab (1996): The court decided that the right to die is not included under Article 21 of the Constitution, though it affirmed that individuals have the right to die with dignity, distinct from unnatural means of death.
  3. Maneka Gandhi v. Union of India (1978): The court struck down a provision of the Passports Act, 1967, as unconstitutional because it violated Articles 14 and 21 of the Constitution.
  4. Indra Sawhney v. Union of India (1992): This ruling set a 50% cap on reservations for backward classes and determined that backwardness should not be assessed solely on economic criteria.

These precedents are key in shaping and guiding legal decisions in India.

Doctrine of state decisis

The doctrine of stare decisis is a fundamental principle in the legal system that emphasizes the importance of precedent in judicial decision-making. The term “stare decisis” is Latin for “to stand by things decided.” This doctrine means that courts should follow the precedents established in previous judicial decisions when deciding new cases with similar facts or legal issues.

Key Aspects of Stare Decisis

  1. Binding Precedent : Higher court decisions are binding on lower courts. This ensures consistency and stability in the law by requiring that lower courts adhere to the legal principles set forth by higher courts.
  2. Persuasive Precedent : Decisions from courts at the same level or from other jurisdictions may influence but are not binding on a court. These precedents can be considered persuasive, especially if the reasoning is compelling and relevant.
  3. Adherence to Consistency: By following established precedents, courts contribute to a predictable and orderly legal system. This consistency helps individuals and entities understand their legal rights and obligations.
  4. Flexibility and Change: While stare decisis promotes stability, it does not prevent courts from overturning precedents. Courts can depart from past decisions if they are found to be outdated or incorrect in light of new evidence or societal changes.
    The doctrine of stare decisis thus balances the need for legal stability with the flexibility to adapt to evolving circumstances.[3]

Custom as a source of law

Customs can be classified into several types, each playing a distinct role in the legal landscape:

  1. General Custom: Applies broadly across a community or country. It reflects common practices widely accepted and followed by the general populace. For example, certain trade practices that have become standard in various industries.
  2. Local Custom: Specific to a particular region or community. It governs practices and norms within that localized area and may vary significantly from those of other regions. For instance, customary marriage practices in different regions.
  3. Usage Custom: Related to the specific usage within certain professions or industries. These customs evolve from practices unique to a particular field, such as commercial practices in banking or insurance.
  4. Religious Custom: Rooted in religious beliefs and practices, these customs influence the legal and social norms of communities with strong religious traditions. An example is the observance of religious holidays as part of legal requirements in certain jurisdictions.[4]

Constitutional Law

Constitutional law is the body of law that outlines the structure and function of government institutions and defines the relationship between the state and its citizens. It is derived from a country’s constitution, which serves as the supreme legal authority.

  1. Supremacy of the Constitution: The constitution holds the highest legal authority, and all other laws and government actions must comply with it. Any law or action that contradicts the constitution is deemed invalid.
  2. Fundamental Rights: Constitutions often guarantee fundamental rights and freedoms to individuals, protecting them from government infringement. These rights can include freedom of speech, the right to a fair trial, and equal protection under the law.
  3. Judicial Review: Courts have the power to review and invalidate laws or actions that are inconsistent with constitutional principles. This ensures that government actions adhere to constitutional mandates.

International Law

International law governs the relationships between states and other international entities . It includes treaties, conventions, and customary practices that regulate how countries interact with one another.

  1. Treaties and Conventions: Formal agreements between states that are legally binding. Examples include the Geneva Conventions, which set standards for humanitarian treatment in war, and the United Nations Charter, which establishes the UN and its functions.
  2. Customary International Law: Practices that are accepted as binding by the international community, even if they are not codified in written treaties. This includes principles such as non-intervention and the prohibition of genocide.
  3. International Institutions: Organizations such as the United Nations, the International Criminal Court, and the World Trade Organization, which facilitate international cooperation and enforce international legal standards.

Conclusion

In exploring the sources of law, it is evident that multiple mechanisms and principles shape the legal landscape. Legislation serves as a primary source, providing formal written laws enacted by governing bodies. Judicial precedents play a crucial role in interpreting and applying these laws, ensuring consistency and stability through the doctrine of stare decisis. Customary law reflects traditional practices and norms that have evolved over time, influencing legal systems especially in communities with strong customary traditions.

Constitutional law establishes the fundamental framework of governance and the protection of individual rights within a state. It operates at the highest level of the legal hierarchy, with its principles guiding all other laws. On the other hand, international law governs the interactions between states and international entities, addressing global issues through treaties, conventions, and customary practices. Understanding these sources and their interactions is essential for navigating legal systems effectively. While constitutional and international laws sometimes overlap and create complexities, recognizing their distinct roles and functions helps clarify how legal principles are applied and upheld. The interplay between these various sources highlights the dynamic nature of law and the continuous evolution of legal standards to meet the needs of society.

References

  1. Adhila Muhammad Arif. (2022, February 26). ipleaders. Retrieved from blog.iPleaders.in: https://blog.ipleaders.in/all-about-sources-of-law-jurisprudence
  2. Chandra, I. (2022). Legislation As a source of law. manupatra articles.
  3. S, C. (2016). Understanding Legal System :A guide to Legal Tradition. London: Palgrave Macmillan.

[1]  iPleaders. blog.iPleaders.in: https://blog.ipleaders.in/all-about-sources-of-law-jurisprudence(last visited on 30september,2024)

[2] Chandra, I. (2022). Legislation As a source of law. manupatra articles.

[3] iPleaders. blog.iPleaders.in: https://blog.ipleaders.in/all-about-sources-of-law-jurisprudence(last visited on 30september,2024)

[4] S, C. (2016). Understanding Legal System:A guide to Legal Tradition. London: Palgrave Macmilln

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