SOURCES OF LAW

This article is written by Naveen Prabhat Singh of 1^st Year of Bharati Vidyapeeth (Deemed to be University) New Law College, Pune, an intern under Legal Vidhiya

Abstract

The sources of law provide the foundation for the legal framework that governs society, shaping the rules and regulations that guide human behavior. This article delves into the various sources of law, examining the role of legislation, judicial precedents, customs, international treaties, and European community law in shaping the legal landscape. By exploring the evolution and interplay of these sources, this article aims to provide a comprehensive understanding of the origins of legal authority and the complex dynamics that influence the development of law. Through a critical analysis of the source of law, this article seeks to illuminate the underlying principles and mechanisms that underpin the legal system, shedding light on the intricate web of rules, norms, and institutions that govern our lives. By tracing the roots of legal authority, this article aims to provide a deeper understanding of the law’s foundation, its adaptability, and its capacity to respond to the changing needs of society

Keywords

Law, Legislation, Precedents, Customs, Imperative law, Customary law, Conventional law, International Law, Civil and Criminal law, Customs, Stare Decisis, Ratio Decidendi, Civil Society.

Introduction

Source of law is legal authority that serves as a basis or foundation for a rule of law or a principle of legal liability (Black’s Law Dictionary). Now first we have to understand what is law and what are its types.

Law is basically a rule applied indiscriminately to all actions. More briefly it could also be said as law is a large body of rules and regulations, based mainly on general principles of justice, fair play and convenience and which have been worked out by government bodies to regulate human activities. Although there is no general definition of law which include all the aspect of law yet for general understanding, some important definitions are as:

• ARISTOTLE: He said that, It (perfect law) is inherent in the nature of man/woman and can be discovered through reason.
• AUSTIN: Austin says “law is the command of the sovereign.”
• SALMOND: Salmond says that “law is a body of principles recognized and applied by the state in the administration of justice.” ^[1]

There are 8 kinds of law:

1. Imperative law- Imperative law is that law which a country or political community issues general commands to its citizens, which make up the law.
2. Physical or scientific law- Scientific or physical laws are concise descriptions or principles that describe how the natural world behaves under certain conditions. These laws are typically derived from repeated observations or experiments and are considered fundamental truths or principles in their respective fields of science.
3. Moral or natural law- Moral law and natural law are concepts that pertain to different domains of philosophy, ethics, and jurisprudence.
4. Conventional law- Conventional law typically refers to laws that are established and enforced by human authority, such as governments or legal systems, rather than being inherent in nature or derived from moral principles. These laws are often codified in written statutes, regulations, or legal precedents, and they govern various aspects of society, including behavior, relationships, and transactions.
5. Customary law- Customary law, also known as customary legal system or customary law system, is a system of law based on customs and traditions that have developed within a specific community over time. It is often practiced in societies where formal legal systems may be limited or where there is a strong emphasis on traditional norms and practices.
6. Practical/technical law- Practical/technical law refers to legal principles, regulations, and processes that pertain specifically to practical or technical aspects of a particular field or industry. This type of law is often highly specialized and addresses the unique challenges, requirements, and standards within a specific domain.
7. International law- International law is a set of rules, agreements, and treaties that govern relations between states and other international actors, such as intergovernmental organizations and individuals. It serves as a framework for promoting peace, stability, cooperation, and justice in the international community.
8. Civil law or criminal law- Civil law and criminal law are two primary branches of the legal system that deal with different types of legal disputes and offenses.^[2]

Evolution

The evolution of law is a complex and multifaceted process that has been shaped by historical, social, cultural, economic, and political factors over millennia. While the specifics of legal development vary across different societies and legal systems, several key themes and stages. Fundamentally law is the principle that controls the operations of the materials and forces of which the universe is composed. It is omnipresent, perennial, and pervades all things that can affect the senses. The uniformity is in the nature of the things and there is no law outside of them to be consulted or obeyed. We find ourselves ever in the clutch of elemental laws that brook no disobedience and depend upon no human sanctions.

Passing the law of natural things, the sway of moral principle, and the axioms of experience which have the force of law, we approach in a particular way the consideration of law as enacted by statute, and as evolved by judicial reasoning from accepted postulates.  Such laws are necessary for the disposition of concrete social conflicts and for the regulation of human action in an organized society. The idea of law with which we now concern -ourselves relates to the origin and application of the rules and regulation that govern the transaction and relations of men, formulated or accepted by constituted authority, and enforceable by established agencies. There are indeed laws that affect the lives, liberties, and properties of clients, and our purpose is to seek the sources of those laws and to find the foundations upon which they are erected. ^[3]

Different Sources of Law

For a complete understanding of the concept of law it is necessary to understand the sources of law. Broadly sources of law divided as follows:

1. Custom: ‘Custom’ is the oldest and most important source of law. ‘Custom’ is an embodiment of those principles which have commended themselves to the natural conscience as principles of justice and public utility. Custom originated in frequent repetition of the same act, and therefore, denotes rules of habitual conduct within a community. Uniformity of conduct in like circumstances is, thus, the hallmark of ‘custom’.

Essentials of custom: to be valid source of law, a customary practice must fulfill some requirements, of which following are the most important;

• Antiquity: Antiquity refers to the legal principles, customs, and traditions that originated in ancient civilizations and influenced the development of legal systems throughout history. In this context, “antiquity” typically refers to the period before the Middle Ages, encompassing ancient civilizations such as those of Mesopotamia, Egypt, Greece, and Rome.
• Continuance: The second essential of a ‘custom’ that it must have been in practice continuously.
• Reasonableness: A ‘custom’ should not be unreasonable, i.e., it must be reasonable in its application to the circumstances of the individual cases.
• Obligatory character: The “obligatory character” refers to the inherent requirement for legal rules and regulations to be binding and enforceable within a given jurisdiction. In other words, laws must possess authority and compel individuals and entities to comply with their provisions. This characteristic is fundamental to the functioning of legal systems and ensures social order, stability, and justice.
• Certainty: Certainty refers to the principle that legal rules and regulations should be clear, unambiguous, and predictable in their application. Certainty enhances the effectiveness and legitimacy of legal systems by providing individuals and entities with a clear understanding of their rights, obligations, and potential legal consequences.
• Consistency: Consistency refers to the principle that legal rules, decisions, and actions within a legal system should be applied uniformly and without arbitrary discrimination. Consistency ensures that similar cases are treated alike, promoting fairness, predictability, and confidence in the administration of justice.

2. Judicial Precedent: ‘Precedent’ signifies a set of patterns upon which future conduct may be an earlier event, decision, or action followed in parallel circumstances later. ‘Stare Decisis’ is a Latin word which denotes ‘to stand by past decision or precedent and not to disturb the settle point’. Precedent or stare decisis denotes employment of past judicial decisions as a guide for making of future ones for lower courts in hierarchy.

A judicial precedent or stare decisis has a binding force for the subsequent case. It is not the whole judgment that is to be binding. In other words, every statement made by the judge in an earlier decision is not binding in future cases. Only those statements in earlier decisions or ‘Ratio Decidendi’ is the general principle which is deduced in a case. Apart from ‘Ratio Decidendi’, a judgment may contain observations not precisely relevant to issue before the court. These may be the observations upon the broader aspects of law or answer to the hypothetical question arises by judges or counsels in the course of hearing. Such observations are called ‘Obiter Dicta’ and without any binding authority, insofar as these are essential to the decision reached.

There was a case upon these:

DONOGHUE VS STEVENSON:^[4]

This was a landmark court decision in Scot delict law and English tort law by the House of Lords. This case involves Mrs. Donoghue drinking a bottle of ginger beer in Café in paisley, Renfrewshire. Unknown to her or anybody else, a decomposed snail was in the bottle. She fell ill due to its consumption and sued the ginger beer manufacturer, Mr. Stevenson.

Background and facts:

On the evening of Sunday, august 26, 1928, during the Glasgow trades holiday, may Donoghue take a train to Paisley, Renfrewshire

In Paisley, she went to the Well-meadow Café.

A friend, who was with her, ordered a pear and ice for herself.

Donoghue asked for a Scotsman ice cream float, a mix of ice cream and ginger beer.

DECISION AND OUTCOME:

The House of Lords held that the manufacturer owed a duty of care to her, which was breached because it was reasonably foreseeable that failure to ensure the product’s safety would lead to customer’s harm.

There was also a sufficient proximate relationship between customers and product manufacturers.

The court held that Mr. Stevenson, who was the manufacturer of the ginger beer, owed a duty of care to Mrs. Donoghue, a consumer of his product, even though she had not purchased the bottle herself and thus was not in a contractual relationship with him.

3. Legislation: It is a deliberate process of legal evolution which consists in the formulation of norms of human conduct in a set form through a prescribed procedure by agencies designated by the constitution. ‘Legislations’ means to make rules for human conduct.

The word legislation means making of law. It is a source of law which consists in declaration of legal rules by competent authority. ‘Legislation’ includes every expression of the will of the legislature, whether making law or not.

When society came into existence there was hardly any rule which could regulate the behavior of people constituting the society. There was lawlessness, barbarism and chaos everywhere. In the process of civilization and the growth of society, there was a need for a system which could regulate human behavior and minimize the friction among them on the basis of set principles of justice. Many tools were developed and a battlement of the society. Role of legal system: a legal system is a set of legal principles and norms to protect a secure living to its people in a society. In this way, it plays an important role by recognizing rights and prescribed duties for the people and also by providing the way to enforce these rights and duties.

• Judges: the judges who are crusaders of justice are independent of both executive and legislature in a democratic set up. Therefore, they are the persons who administer justice without fear or favor.
• Advocates: They are the key functionaries assisting the judges in the administration of justice. Advocates, typically lawyers who represent clients in legal matters, are not considered a direct source of law in the traditional sense. Instead, they play a critical role in the application, interpretation, and development of laws within legal systems. While advocates themselves do not create laws, they influence the legal landscape
• Civil society: In democracy, ‘we people’ i.e. citizens and their particular group play pivotal roles in good governance. Civil society, while not traditionally considered a direct source of law like legislation or judicial decisions, plays a significant role in shaping legal norms, advocating for legal reforms, and influencing the development and enforcement of laws. Civil society refers to the space in society outside of the government and the private sector, where individuals and organizations come together to pursue common interests, promote social justice, and address public concerns.

Conclusion

In conclusion, sources of law are the foundation of the legal system, providing the rules, principles, and norms that govern human behavior and social relationships. From legislation to judicial precedents, custom to international treaties, and European community law, each source plays a vital role in shaping the legal framework that underpins the society. Understanding the source of law is essential for Legal Professionals, Scholars, and citizens alike, as it enables us to navigate the complex web of legal authorities, interpret the law, and apply it to real-world situations. Moreover, recognizing the evolution and interplay of sources of law allows us to appreciate the dynamic nature of the legal system and its capacity to adapt to changing social, political, and economic contexts. As we grapple with the challenges of the 21^st century, it is crucial that we are certainly aware of the sources of law and their role in shaping our legal landscape. By doing so, we can harness the power of law to promote justice, protect individual rights, and foster a more equitable society for all.

References

1. Dr Avtar Singh and Dr Harpreet Kaur, Introduction to Jurisprudence, (5^th Edition 2020)
2. NK Jayakumar, Lectures on Jurisprudence, LexisNexis Publication, (3^rd Edition 2015)
3. Prof. M.P Singh, Outlines of Indian Legal and Constitutional History, LexisNexis Publication, 6th Edition 2022
4. Donoghue vs Stevenson, [1932] AC 562, 578-599 (Lord Atkin)
5. NIOS, CURRICULUM OF INTRODUCTION TO LAW AT SENIOR SECONDARY LEVEL, 2020

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[1] Dr Avtar Singh and Dr Harpreet Kaur, Introduction to Jurisprudence, (5^th Edition 2020)

[2] NK Jayakumar, Lectures on Jurisprudence, LexisNexis Publication, (3^rd Edition 2015)

[3] Prof. M.P Singh, Outlines of Indian Legal and Constitutional History, LexisNexis Publication, 6^th Edition 2022

[4] Donoghue vs Stevenson, [1932] AC 562, 578-599 (Lord Atkin)

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