Precedent

Introduction
Every developed legal system possesses a judicial organ. The main function of the
judicial organ is to adjudicate the rights and obligations of the citizens. In the
beginning, in this adjudication the courts are guided by customs and their own
sense of justice. As society progresses, legislation becomes the main source of law
and the judges decide cases according to it. Even at this stage the judges perform
some creative function. In the cases of first impression, in the matters of
interpretation, or in filling up any lacuna in the law made by legislation the judges,
to some extent, depend on their sense of right and wrong and in doing so, they
adapt the law to the changed conditions.

Inductive and Deductive methods

In the inductive method, there is a great reliance placed upon the decisions of the
judges. Before deciding a case, the judges look into previously decided cases of the
similar nature by their own court or by superior court. From particular cases they
deduce general rules, and apply them on the cases before them and decide
accordingly. This is known as Inductive method.

In the deductive method, there is a great reliance placed legislatures and enacted
statues. In such a system, the cases are decided on the basis the enacted legislature
and statue that are codified and the judges decide cases on the basis of these codes
and not on the basis of previously decided cases. This method is called the
Deductive method.

Authority of previously decided cases

In almost all legal systems, the judges take guidance from the previous decisions
on the point, and rely upon them. But the authority of such decisions is not the
same in all the legal systems. In most of the countries including India, acquire their
knowledge of the law through decisions of higher tribunals than from anything
else. Such decisions are compiled and published in reports. These reports are
considered to be very valuable from the legal literature perspective. These
decisions are very efficient in deciding cases of subsequent cases of similar nature.
They are called judicial precedents or precedents.
Literal meaning
Something that has happened before

Definition of precedent
As Defined in Black’s Law Dictionary,

"precedent" is a "rule of law established for the first time by a court for a
particular type of case and thereafter referred to in deciding similar cases( Black’s
Law Dictionary P 1059 5th edition 1979)

 Precedent is the legal principle or rule that is created by a court to guide the
judges when a similar set of facts come.

In general English, the term precedent means,

‘A previous instance or case which is, or may be taken as an example of rule for
subsequent cases, or by which some similar act or circumstances may be supported
or justified.’

According to Gray,

‘A precedent covers everything said or done, which furnishes a rule for subsequent
practice.’[1]

According to Keeton,

‘A judicial precedent is judicial to which authority has in some measure been

attached.’[2]

According to Salmond,

In loose sense it includes merely reported case law which may be cited & followed
by courts.

In strict sense, that case law which not only has a great binding authority but must
also be followed.
According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.’

Nature of precedents
 They must be ppurely constitutive and not abrogative at all. This means that
a judicial decision can make a law but cannot alter it.
 Where there is a settled rule of law, It is the duty of the judges to follow the
same.
 They cannot substitute their opinions for the established rule of law.
 The function is limited to supplying the vacancies of the legal systems,
filling up with new law the gaps that exist.

Importance of precedents
In the Ancient Legal System:

The importance of the decisions as a source of law was recognised even in very
early times. In the past, there have been numerous instances of this. Sir Edward
Coke, in the preface of the sixth part of his report, has been written that Moses was
the first law reporter. ‘In the case of the daughters of Zelophehad, narrated at the
beginning of the twenty- seventh chapter of the book of numbers, the facts are
stated with the great clearness and expressly as a precedent which ought to be
followed.’ Even in the Mahabharata, it has been stated that, ‘The path is the right
one which has been followed by virtuous men.’ This may be interpreted as giving a
theory of precedent. In ancient legal systems of Babylonia and China, the judicial
decisions were considered to be a great authority, and later on, they were embodied
in code law.
In the Modern Legal System:

Among the modern legal systems, the Anglo – American law is judge made law. It
is called ‘Common Law’. It developed mainly through judicial decisions. Most of
the branches of law, such as torts, have been created exclusively by judges. The
Constitutional Law of England, especially the freedom of the citizens, developed
through judicial decisions.

According to Tennyson,

Where freedom slowly broadness down, from precedent to precedent.

Types of precedents
Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent or other legal writing
that is related to the case at hand but is not a binding precedent on the court
under common law legal systems such as English law. However, persuasive
authority may guide the judge in making the decision in the instant case.
Persuasive precedent may come from a number of sources such as lower courts,
“horizontal” courts, foreign courts, statements made in dicta, treatises or law
reviews. In Civil law and pluralist systems, as under Scots law, precedent is not
binding but case law is taken into account by the courts.
Lower Courts

A lower court’s opinion may be considered as persuasive authority if the judge

believes they have applied the correct legal principle and reasoning.
Higher Courts in other Circuits

A court may consider the ruling of a higher court that is not binding. For example,
a district court in the United States First Circuit could consider a ruling made by
the United States Court of Appeals for the Ninth Circuit as persuasive authority.
Horizontal Courts

Courts may consider rulings made in other courts that are of equivalent authority in
the legal system. For example, an appellate court for one district could consider a
ruling issued by an appeals court in another district.
Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher
court, though not binding, will often be persuasive to lower courts.

The obiter dicta is usually, as its translation “other things said”, but due to the high
number of judges and several personal decisions, it is often hard to distinguish
from the ratio decidendi (reason for the decision).

For this reason, the obiter dicta may usually be taken into consideration.

A Dissenting judgement
A judgment heard by a tribunal, and one judge dissented from the decision. The
judge in the next case can decide to follow the dissenting judge’s obiter and
rationale. The judge can only opt to overturn the holding of a court lower or
equivalent in the hierarchy, however. A district court, for example, could not rely
on a Supreme Court dissent as a rationale for ruling on the case at hand.
Treatises, Restatements, Law Review Articles

Courts may consider the writings of eminent legal scholars in treatises,

restatements of the law, and law reviews. The extent to which judges find these
types of writings will vary widely with elements such as the reputation of the
author and the relevance of the argument

Courts in other countries

An English court might cite judgments from countries that share the English
common law tradition. These include other commonwealth states (for example
Canada, Australia, or New Zealand) and, to some extent, the United States.

It is controversial whether it is appropriate for a U.S. court to consider foreign law

or precedents. The Supreme Court splits on this issue. In Atkins v. Virginia, for
example, the majority cited the fact that the European Union forbid death penalty
as part of their reasoning, while Chief Justice Rehnquist denounced the “Court’s
decision to place weight on foreign laws.” The House of Representatives passed a
nonbinding resolution criticizing the citing of foreign law and “reaffirming
American independence.”

Binding precedents
In law, a binding precedent (also mandatory precedent or binding authority) is
a precedent which must be followed by all lower courts under common law legal
systems. In English law it is usually created by the decision of a higher court, such
as the Supreme Court of the United Kingdom, which took over the judicial
functions of the House of Lords in 2009. In Civil law and pluralist systems, as
under Scots law, precedent is not binding but case law is taken into account by the
courts.

Binding precedent relies on the legal principle of stare decisis. A stare decisis
means to stand by things decided. It ensures certainty and consistency in the
application of law. Existing binding precedents from past cases are applied in
principle to new situations by analogy.

There are three elements needed for a precedent to work. Firstly, the hierarchy of
the courts needs to be accepted, and an efficient system of law reporting. ‘A
balance must be struck between the need on one side for the legal certainty
resulting from the binding effect of previous decisions, and on the other side the
avoidance of undue restriction on the proper development of the law

Binding Precedent in England

Judges are bound by the law of binding precedents in England and Wales and other
common law jurisdictions. This is a distinctive feature of the English legal system.
In Scotland and many countries throughout the world, particularly in mainland
Europe, civil law means that judges take case law into account in a similar way,
but are not obliged to do so and are required to consider the precedent in terms of
principle. Their fellow judges’ decisions may be persuasive but are not binding.
Under the English legal system, judges are not necessarily entitled to make their
own decisions about the development or interpretations of the law. They may be
bound by a decision reached in a previous case. Two facts are crucial to
determining whether a precedent is binding:

The position in the court hierarchy of the court which decided the precedent,
relative to the position in the court trying the current case.

Whether the facts of the current case come within in the scope the principle of law
in previous decisions.

Stare Decisis
Stare decisis (Latin: [ˈstaːre deːˈt͡s1iːsiːs], Anglicisation: [ˈsteɹɪ dɪˈsaɪsɪs]) is the
legal principle by which judges are obliged to respect the precedents established by
prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not
disturb the undisturbed.” In a legal context, this is understood to mean that courts
should generally abide by precedents and not disturb settled matters.
This doctrine is basically a requirement that a Court must follow the rules
established by a Court above it.

The doctrine that holdings have binding precedence value is not valid within
most civil law jurisdictions as it is generally understood that this principle
interferes with the right of judges to interpret law and the right of the legislature to
make law. Most such systems, however, recognize the concept of jurisprudence
constante, which argues that even though judges are independent, they should
judge in a predictable and non-chaotic manner. Therefore, judges’ right to interpret
law does not preclude the adoption of a small number of selected binding case
laws.

Cases on Stare Decisis

 East India commercial co. ltd Vs. collector of customs(AIR 1962 SC 1873)
 Baradakant Mishra Vs. Bhimsen Dixit(AIR 1972 SC 24)
 CIT Thana Vs. Thana electricity Supply limited

Authority of Precedents
The authority of a decision as a precedent lies in its Ratio Decidendi.

Ratio Decidendi and Obiter Dictum

There are cases which involve questions which admit of being answered on
principles. Such principles are deduced by way of abstraction of the material facts
of the case eliminating the immaterial elements. The principle that comes out as a
result of such case is not applicable only to that case, but to cases also which are
similar to the decided case in their essential features. This principle is called Ratio
Decidendi. The issues which need determination of no general principles are
answered on the circumstances of the particular case and lay down no principles of
general application. These are called Obiter Dictum. It is the Ratio Decidendi of a
case that is binding and not the Obiter Dictum that has a binding effect of a
Precedent. But it is for the judge to determine the Ratio Decidendi of the decision
and to apply it on the case which he is going to decide. This gives an opportunity
to him to mould the law according to the changed conditions by laying emphasis
on one or the other point.

Advantages of using preceedent as a source of law

 1. The use of precedent has been justified as providing predictability, stability,
fairne ss, and efficiency in the law
2. “Reliance upon precedent also promotes the expectation that the law is just.
The idea that like cases should be treated ali ke is anchored inthe assumption
that on e person is the legal equal of any other.
3. Precedent also enhances efficiency.

Disadvantages of precedent

1. 1.If there are more than one ratios laid down in a judgment then which ratio
is to be considered a precedent.
2. There are numerous case laws and hence it is a tedious task to recognize the
relevant ones.
3. Unless a case in this regard does not comes to the court, legal position can’t
be given on the same.

Certain examples good precedent and source of law

 PUCL Vs Union Of India(Right to food case) (2001) In order to ensure food

security to the poor citizens , a case was taken up by PUCL. Food grains was
destroyed in the cold storages and was not used to feed the poor and the
needy. The court affirmed the right to food as necessary to uphold Article 21
of the Constitution of India, which guarantees the fundamental right to “life
with human dignity. Supreme court since then passed numerous interim
orders in the present case ensuring the availability of good quality food for
children etc

 The famous Nirbhaya case can also be considered as a good precedent and a
source of law as it made way for the criminal law amendment act of 2013. 
This resulted in sensitizing law with respect to women security in the
country.

Comparison between different legal systems

U.S. legal system
In the United States, which uses a common law system in its state courts and to a
lesser extent in its federal courts, the Ninth Circuit Court of Appeals has stated:
Stare decisis is the policy of the court to stand by precedent; the term is but an
abbreviation of stare decisis et quieta non movere — “to stand by and adhere to
decisions and not disturb what is settled.” Consider the word “decisis.” The word
means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not
“to stand by or keep to what was said.” Nor is the doctrine stare rationibus
decidendi — “to keep to the rationes decidendi of past cases.” Rather, under the
doctrine of stare decisis a case is important only for what it decides — for the
“what,” not for the “why,” and not for the “how.” Insofar as precedent is
concerned, stare decisis is important only for the decision, for the detailed legal
consequence following a detailed set of facts.

In other words, stare decisis applies to the holding of a case, rather than to obiter
dicta (“things said by the way”). As the United States Supreme Court has put it:
“dicta may be followed if sufficiently persuasive but are not binding.”

In the United States Supreme Court, the principle of stare decisis is most flexible in
constitutional cases:

Stare decisis is usually the wise policy, because in most matters it is more
important that the applicable rule of law be settled than that it be settled right. …
But in cases involving the Federal Constitution, where correction through
legislative action is practically impossible, this Court has often overruled its earlier
decisions. … This is strikingly true of cases under the due process clause.[3]

For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in
about 130 cases. The U.S. Supreme Court has further explained as follows:

When convinced of former error, this Court has never felt constrained to follow
precedent. In constitutional questions, where correction depends upon amendment,
and not upon legislative action, this Court throughout its history has freely
exercised its power to re-examine the basis of its constitutional decisions.[4]
English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal
system, and to the legal systems that derived from it such as those
of Australia, Canada, Hong Kong, New Zealand,
Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made
of the law by a Judge in deciding a case. The doctrine states that within the
hierarchy of the English courts a decision by a superior court will be binding on
inferior courts. This means that when judges try cases they must check to see if
similar cases have been tried by a court previously. If there was a precedent set by
an equal or superior court, then a judge should obey that precedent. If there is a
precedent set by an inferior court, a judge does not have to follow it, but may
consider it. The House of Lords (now the Supreme Court) however does not have
to obey its own precedents.

Only the statements of law are binding. This is known as the reason for the
decision or ratio decidendi. All other reasons are “by the way” or obiter dictum.
See Rondel v. Worsley[5]. A precedent does not bind a court if it finds there was a
lack of care in the original “Per Incuriam”. For example, if a statutory provision or
precedent had not been brought to the previous court’s attention before its decision,
the precedent would not be binding. Also, if a court finds a material difference
between cases then it can choose not to be bound by the precedent. Persuasive
precedents are those that have been set by courts lower in the hierarchy. They may
be persuasive, but are not binding. Most importantly, precedents can be overruled
by a subsequent decision by a superior court or by an Act of Parliament.
Civil Law System

Stare decisis is not usually a doctrine used in civil law court system, because it
violates the principle that only the legislature may make law. In theory therefore,
lower courts are generally not bound to precedents established by higher courts. In
practice, the need to have predictability means that lower courts generally defer
to precedents by higher courts and in a sense, the highest courts in civil
law jurisdictions, such as the Cour de cassation and the Conseil d’État in France
are recognized as being bodies of a quasi-legislative nature.

The doctrine of stare decisis also influences how court decisions are structured. In
general, court decisions in common law jurisdictions are extremely wordy and go
into great detail as to the how the decision was reached. This occurs to justify a
court decision on the basis of previous case law as well as to make it easier to use
the decision as a precedent in future cases.

By contrast, court decisions in some civil law jurisdictions (most prominently

France) tend to be extremely brief, mentioning only the relevant legislation and not
going into great detail about how a decision was reached. This is the result of the
theoretical view that the court is only interpreting the view of the legislature and
that detailed exposition is unnecessary. Because of this, much more of the
exposition of the law is done by academic jurists which provide the explanations
that in common law nations would be provided by the judges themselves.
In other civil law jurisdictions, such as the German-speaking countries, court
opinions tend to be much longer than in France, and courts will frequently cite
previous cases and academic writing. However, e.g. German courts put less
emphasis of the particular facts of the case than common law courts, but on the
discussion of various doctrinal arguments and on finding what the correct
interpretation of the law is.
Indian Legal System

Indian Law is largely based on English common law because of the long period
of British colonial influence during the period of the British Raj.

Ancient India represented a distinct tradition of law, and had an historically

independent school of legal theory and practice. The Arthashastra, dating from 400
BC and the Manusmriti, from 100 AD, were influential treatises in India, texts that
were considered authoritative legal guidance. Manu’s central philosophy was
tolerance and pluralism, and was cited across Southeast Asia. Early in this period,
which finally culminated in the creation of the Gupta Empire, relations with
ancient Greece and Rome were not infrequent. The appearance of similar
fundamental institutions of international law in various parts of the world show
that they are inherent in international society, irrespective of culture and tradition.
Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare
of a high humanitarian standard, in rules of neutrality, of treaty law, of customary
law embodied in religious charters, in exchange of embassies of a temporary or
semi-permanent character. When India became part of the British Empire, there
was a break in tradition, and Hindu and Islamic law were supplanted by the
common law. As a result, the present judicial system of the country derives largely
from the British system and has little correlation to the institutions of the pre-
British era.

There are 1160 laws as on September 2007

In India, stare decisis is strictly followed and these are the general principles of
stare decisis followed in India.

Each court is absolutely bound by the decisions of the higher courts above it.

Decision of one of the high courts is not binding on any other high court. They
have only persuasive value.

In India, Supreme Court is not bound by its own decision.

A single bench is bound by the decision of a division bench of the same high court
but a division bench is not to follow a decision of a single bench of the same high
court.

Conclusion
 Judicial precedents are indeed a good source of law.

 saves the time of the courts and hence helps in ensuring effective justice
delivery system.

 It cannot be denied precedents are one of the most important sources of law. But
with time it will become more and more difficult to keep a track all such judicial
precedent. So some mechanism will have to be developed to make good provisions
for recording of precedence

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand
how various jurists have defined legislation.
1. Salmond- Legislation is that source of law which consists in the declaration of
legal rules by a competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of
the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is
a statute and legislation is the normal source of law making. The majority of
exponents of this school do not approve that the courts also can formulate law.
They do not admit the claim of customs and traditions as a source of law. Thus,
they regard only legislation as the source of law.

Historical School of Thought- This group of gentlemen believe that Legislation is

the least creative of the sources of law. Legislative purpose of any legislation is to
give better form and effectuate the customs and traditions that are spontaneously
developed by the people. Thus, they do not regard legislation as source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which

proceeds from the sovereign power of the state. It cannot be repealed, annulled or
controlled by any other legislative authority.

2. Subordinate Legislation- It is that which proceeds from any authority other

than the sovereign power and is dependant for its continual existence and validity
on some superior authority.

Delegated Legislation- This is a type of subordinate legislation. It is well-known

that the main function of the executive is to enforce the law. In case of Delegated
Legislation, executive frames the provisions of law. This is also known as
executive legislation. The executive makes laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In

India, the power to make subordinate legislation is usually derived from existing
enabling acts. It is fundamental that the delegate on whom such power is conferred
has to act within the limits of the enabling act.
The main purpose of such a legislation is to supplant and not to supplement the
law. Its main justification is that sometimes legislature does not foresee the
difficulties that might come after enacting a law. Therefore, Delegated Legislation
fills in those gaps that are not seen while formulation of the enabling act.
Delegated Legislation gives flexibility to law and there is ample scope for
adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul

subordinate enactments but they can declare them inapplicable in special
circumstances. By doing so, the rules framed do not get repealed or abrogated but
they surely become dead letter as they become ultra vires and no responsible
authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised

by entrusting power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated

Powers. It can be complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken.

It will definitely minimize the dangers of enacting a vague legislation.

Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature

can abrogate any legislative measure or provision that has become meaningless or
ineffective in the changed circumstances. Legislature can repeal a law with ease.
However, this is not the situation with courts because the process of litigation is a
necessary as well as a time-consuming process.
2. Division of function- Legislation is advantageous because of division of
functions. Legislature can make a law by gathering all the relevant material and
linking it with the legislative measures that are needed. In such a process,
legislature takes help of the public and opinion of the experts. Thus, public opinion
also gets represented in the legislature. This cannot be done by the judiciary since
Judiciary does not have the resources and the expertise to gather all the relevant
material regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in

nature. This is because legislations are made applicable to only those that come
into existence once the said legislation has been enacted. Thus, once a legislation
gets enacted, the public can shape its conduct accordingly. However, Judgments
are mostly retrospective. The legality of any action can be pronounced by the court
only when that action has taken place. Bentham once said that “Do you know how
they make it; just as man makes for his dog. When your dog does something, you
want to break him off, you wait till he does it and beat him and this is how the
judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such

that he/she is in constant interaction with all sections of the society. Thereby,
opportunities are available to him correct the failed necessities of time. Also, the
decisions taken by the legislators in the Legislature are collective in nature. This is
not so in the case of Judiciary. Sometimes, judgments are based on bias and
prejudices of the judge who is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions

and explanations whereas Judicial Pronouncements are usually circumscribed by
the facts of a particular case for which the judgment has been passed. Critics say
that when a Judge gives Judgment, he makes elephantiasis of law.

Difference between Legislation and Customary Law

1. Legislation has its source in theory whereas customary law grows out of
practice.

2. The existence of Legislation is essentially de Jure whereas existence of

customary law is essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas
customary law is the oldest form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas

absolute reliance on customary law is a mark of primitive society and under-
developed legal system.

5. Legislation expresses relationship between man and state whereas customary

law expresses relationship between man and man.

6. Legislation is precise, complete and easily accessible but the same cannot be
said about customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is

the outcome of necessity, utility and imitation.

Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the
politicians”. A judge is impartial. Therefore, he performs his work in an unbiased
manner.

2. Salmond said that “Case laws enjoys greater flexibility than statutory
law. Statutory law suffers from the defect of rigidity. Courts are bound by the letter
of law and are not allowed to ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that

legislation as an instrument of reform is necessary but it cannot be denied that
precedent has its own importance as a constitutive element in the making of law
although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all
law is judge made law. In truth all the law is judge made law, the shape in which a
statute is imposed on the community as a guide for conduct is the statute as
interpreted by the courts. The courts put life into the dead words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute that
is a document having a form according to the intent of them that made it”.
5. Salmond said that “the expression will of the legislature represents short hand
reference to the meaning of the words used in the legislature objectively
determined with the guidance furnished by the accepted principles of
interpretation”.

CUSTOM AS ASOURCE OF LAW

Custom can simply be explained as those long established practices or unwritten

rules which have acquired binding or obligatory character. In ancient societies,
custom was considered as one of the most important sources of law; In fact it was
considered as the real source of law. With the passage of time and the advent of
modern civilization, the importance of custom as a source of law diminished and
other sources such as judicial precedents and legislation gained importance.

There is no doubt about the fact that custom is an important source of law.
Broadly, there are two views which prevail in this regard on whether custom is
law. Jurists such as Austin opposed custom as law because it did not originate from
the will of the sovereign. Jurists like Savigny consider custom as the main source
of law. According to him the real source of law is the will of the people and not the
will of the sovereign. The will of the people has always been reflected in the
custom and traditions of the society. Custom is hence a main source of law.

definition

Salmond said that ‘Custom is the embodiment of those principles which have
commended themselves to the national conscience as the principles of justice and
public utility’.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal
principles.
ORIGIN OF CUSTOM:-
A study of ancient laws shows that in primitive society, the lives of the people
were regulated by custom which developed spontaneously according to the
circumstances. It was felt that a particular way of doing thing was more convenient
than others.

Holland- Custom originated in the conscious choice by the people of the more
convenient of the two acts. Imitation must have played an important part in the
growth of customs.

Trade- Imitation is not mere curiosity of psychology, but it is one of the primary
laws of nature. Nature perpetuates itself by repetition and the three fundamental
forms of repetition are rhythm or undulation, generation and irritation

. Vinogradoff- Social customs themselves obviously did not take their form from
assembly or tribunal. They grew up by gradual process. The magistrate came only
at a later stage, when the custom was already in operation and added to the
sanction of general recognition, the express formulation of judicial and expert
authority.

BINDING FORCE OF CUSTOM:-

The very fact that any rule which has the sanction of custom raises a presumption
that it deserves the sanction of law also. Judgments are inclined to accept those
rules which have in their favor the prestige and authority of long acceptance.
Salmond-

Custom is to society what law is to the state. Each is the expression and realization
of the measure of man’s insight and ability of the principles of right and justice.
Custom embodies them as acknowledged and approved, not by power of the state,
but by the public opinion of the society at large.

The binding force of custom is that the existence of an established wage is the
basis of rational expectation of its continuance in the future. Justice demands that
this expectation should be fulfilled and not frustrated.
Sometimes, a custom is observed by a large number of persons in society and in
course of time the same comes to have the force of law. Reference may be made in
this connection to three grace days on bills of exchange.

Customs rests on the popular conviction that it is in the interests of society. This
conviction is so strong that it is not found desirable to go against it.

Paton- Custom is useful to the law giver and codifier in two ways. It provides the
material out of which the law can be fashioned- it is too great an intellectual effort
to create law de novo. There is inevitably a tendency to adopt the maxim
‘Whatever has been authority in the past is a safe guide for the future.’

CLASSIFICATION OF CUSTOMS:-

The customs in their wider sense may be classified into two classes·

Customs without sanction- They are those customs which are non-obligatory.
They are observed due to pressure of the public opinion. The Austinian term for
them is ‘positive morality’. ·

Customs with sanction- They are those customs which are enforced by the state.
It is with these customs that we are concerned here.

LEGAL CUSTOM:-
A legal custom is one whose legal authority is absolute. It possesses the force of
law pro prio vigor. The parties affected may agree to a legal custom or not but they
are bound by the same.
A legal custom is of two kinds. It is either a local custom or a general custom of
the realm.

LOCAL CUSTOM:-
1. The term ‘custom’ in its narrowest sense means local custom exclusively.
2. Local custom is that which prevails in some defined locality only such as
borough or county and constitutes a source of law for that place only.
3. In order that a local custom may be valid and operative as a source of law, it
must conform to certain requirements. It must be reasonable. It must
conform to statue law. It must have been observed as obligatory. It must be
of immemorial antiquity.
 4. It must be reasonable. The authority of usage is not absolute but conditional
on a certain measure of conformity with justice and public utility.
5. The true rule is that in order to be deprived of legal efficacy, a custom must
be so obviously and seriously repugnant to right and reason, that to enforce
it as law would do more mischief than that which would result from the
overturning of the expectations and agreements, based on its turning of the
expectations and agreements, based on its presumed continuance and legal
validity.
6. Another requirement is that a local custom must be in conformity with
statute law. It must not be contrary to an Act of Parliament. Coke- No
custom or prescription can take away force of an Act of Parliament.
7. It must be observed as a matter of right. This does not mean that the custom
must be acquiesced in as a matter of moral right. The custom must have been
followed openly, without the necessity of recourse to force and without the
permission of those adversely affected by the custom being regarded as
necessary. 8. Legal custom is its immemorial antiquity. In order to have the
force of law, the custom must be immemorial.

GENERAL CUSTOM:-
1. A general custom prevails throughout the country and constitutes a source of
the law of the land. The common law of the realm is the common custom of the
realm.

2. There is no unanimity of opinion on the point whether the general custom must
be immemorial or not.

3. Salmond- A general custom must be immemorial. The general rule is that a

general custom cannot have the force of law unless and until it is also immemorial.

4. Parker- When a general custom is adopted as a precedent, it is accepted as a

form of conventional law. It is adopted because common law provides that an
agreement should be enforced according to its terms.
5. A general custom, once recognized, cannot be set aside by a later general
custom. A general trade custom cannot become law if it conflicts with law.

Keaton- A general custom must satisfy certain conditions. It is to be a source of

law. It must be reasonable. It must be generally followed and accepted as binding.
It must have existed from time immemorial. It must not conflict with statute law of
the country. It should not conflict with the common law of the country.
CONVENTIONAL CUSTOM OR USAGE:-
 A conventional custom is one whose authority is conditional on its
acceptance and incorporation in the agreement between the parties to be
bound by it.

 A conventional custom is an established practice which is legally binding

because it has been expressly or impliedly incorporated in a contract
between the parties concerned. There are certain implied terms which can be
omitted.

 The intention of the parties to the contract can be gathered from the
customary law and other things which can reasonably be taken to be implied
in the contract. The customs of the locality or trade or profession are taken to
be included in the contract. The courts are bound to take notice of these
custom

There are some conditions: ·

 It must be showed that the convention is clearly established and it is well
known. It implies that both the parties were aware of such a convention.
 Conventions cannot alter the general law of land. Therefore, they are valid
only within the area of their observance. ·
 They must be reasonable. If certain conventions are expressly excluded by
the parties, they will not be enforced

Essentials of a valid custom
 All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid down
some essential tests for customs to be recognized as valid sources of law.
These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a long
time, even beyond human memory. In England, the year 1189 i.e. the reign
of Richard I King of England has been fixed for the determination of validity
of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must have
been enjoyed without any kind of interruption. Long intervals and disrupted
practice of a custom raise doubts about the validity of the same.
 Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the community.
It should not have been practised secretly. Acustom must be proved to be a
matter of right. A mere doubtful exercise of a right is not sufficient to a
claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A custom,
to be valid, should be based on rationality and reason. If a custom is likely to
cause more inconvenience and mischief than convenience, such a custom
will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid
custom. Courts have declared many customs as invalid as they were
practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally
preferred to the custom. Therefore, it is imperative that a custom must not be
opposed or contrary to legislation. Many customs have been abrogated by
laws enacted by the legislative bodies. For instance, the customary practice
of child marriage has been declared as an offence.

Why has custom been regarded as an important source of law

 Custom is one of the oldest forms of law making. In primitive societies
human conduct was regulated by practices which grew up spontaneously and
were later adopted by the people. What was accepted by the generality of the
people and embodied in their customs was deemed to be right. So, custom
has played an extremely significant role as a source of law, till other sources
of law like legislation and precedent acquire prominence. Customs have
been the most potent force in molding the ancient law.
Reasons for acceptance of customs as a source of law
 According to Salmond
 Salmond has pointed out two reasons for the recognition of customs as a
source of law. Firstly, custom is frequently the embodiment of those
principles which have commanded themselves to the national conscience as
principles of justice and public utility. Secondly, the existence of an
established usage is the basis of a rational expectation of its continuance in
the future. Salmond adds, ‘’justice demands that, unless there is good reason
 to the contrary , men’s rational expectations shall, so far as possible, be
fulfilled rather than frustrated.
 According to Keeton
 Keeton observes that the main reason for the admission of custom as a
source of law seems to be that before state organs undertook the task of
framing laws for the community, this was done by the people themselves,
and the rules elaborated by habit were enforced in popular courts. Thus,
rules elaborated by habit were enforced in popular courts. Thus, the state in
advancing its authority takes over and enforces customary rules, first
formulated by the people themselves for their own regulation.

 Introduction

 The Rule of Law is one of the most fundamental aspects of modern legal
systems. Simply said, the rule says, 'howsoever high you may be; the Law is
above you'. It specifies that the Law is supreme and that no human being is
higher than the authority of Law.
 Most constitutions, such as the English Constitution, the American
Constitution and India guarantee to follow the Rule of Law and hence
authorities are bound to follow it strictly. Administrative Law is largely
based on this Rule.
 Contents

 [hide]
 1History
 2Dicey's Rule of Law
 2.1Supremacy of Law
 2.2Equality before Law
 2.3Predominance of of Legal spirit
 2.4Advantages of Dicey thesis
 2.5Disadvantages of Dicey thesis
 3Modern Concept of Rule of Law
 4Related Cases / Recent Cases / Case Law
 5Related Topics
 6Constitutional Provisions
 7Related News
 8Related News
History
 The concept was introduced by Chief Justice Sir Edward Coke during the
James I rule. Sir Coke said that the King is under God and the Law and that
the Law is supreme over executive.
 The term 'Rule of Law' was derived from the French phrase la principe de
legalite (the principle of legality)
 The principles of Cole are developed by Dicey and are written in his book
Law and the Constitution (1885).


Dicey's Rule of Law

 A V Dicey stated three principles to the term 'Rule of Law'.
 1. Supremacy of Law 2. Equality before Law 3. Predominance of of Legal
spirit
 The Rule of Law impacted the Administrative Law of England while the
Doctrine of Separation of Powers impacted the Administrative Law of the
Untied States.

Supremacy of Law
 'Supremacy of Law' is the central and most characteristic feature of
Common Law.
 Law is the absolute supreme and predominant as opposed to influence of
arbitrary power or discretionary power.
 English men are ruled by the Rule of Law and law alone.
 A man can be punished by rule of law, and by nothing else.
 Wade: Government is a subject of the Rule of Law, rather than the law being
a subject of the Government.

Equality before Law

 There must be equality before law or equal subjection of all classes to the
ordinary law.
 All people should be subject to one and the same law.
 There is no need for extraordinary tribunals or special courts to deal with
cases of Government and its servants (such as the one seen in Droit
Administratif).
  Of course, Dicey accepted that administrative authorities are exercising
'judicial' functions though they are not 'courts'.
 Lord Denning: "Our English law does not allow a public officer to shelter
behind a driot administratif.

Predominance of of Legal spirit

 Rights (such as right to personal liberty, freedom from arrest etc.) are the
result of judicial decisions in England.
 The rights are a result of court judgements rather than from being enshrined
in the Constitution.
 The Constitution is a consequence (and not the source) of the rights of the
individuals.
 Thus, Courts are the guarantors of the liberty
 Rights would be secured more adequately if they were enforceable in courts
rather than just being written in the Constitutional document.
 Mere incorporation in a written constitution is of no use in the absence of
effective remedies of protection and enforcement.

Advantages of Dicey thesis

 Helped to make administrative authorities confine to their limits.
 Became a yard stick to test administrative actions.
 Helped for the recognition and the growth of the concept of administrative
law.

Disadvantages of Dicey thesis

 Dicey thesis was not completely accepted even in his era.
 Even at this time, there was a long list of statutes which permitted the
exercise of discretionary powers of the Crown which could not be called to
the Court.
 Dicey instead of not just disallowing arbitrary powers has also insisted that
administrative authorities should not be given discretionary powers.
 He failed to distinguish between 'arbitrary powers' to 'discretionary powers'.
 He misunderstood the real nature of droit administratif which was successful
in France.

Modern Concept of Rule of Law

  Today, 'Rule of Law' is seen more as a concept of rights of citizens.
 Accepted in almost all countries outside the Communist.


CONCEPT OF RULE OF LAW

The doctrine of rule of law has its origin in England and it is one of the
fundamental characteristics of the British constitutional system. It lays down that
the law is supreme and hence the government must act according to law and within
the limits of the law. It is the legal principle that law should govern a nation, as
opposed to being governed by arbitrary decisions of individual government
officials. It primarily refers to the influence and authority of law within society,
particularly as a constraint upon behavior, including behavior of government
officials.
A V Dicey in his book The Law of the Constitution (1885) has given the
following three implications of the doctrine of rule of law.
1. Absence of arbitrary power, that is, no man is punished except for a breach of
law
2. Equality before the law,that is, equal subjection of all citizens (rich or poor, high
or low, official or non official) to the ordinary law of the land administered by the
ordinary law courts
3. The primacy of the rights of individual, that is, the constitution is the result of
the rights of the individual as defined and enforced by courts of law, rather than
constitution being the source of the individual rights
Most legal theorists believe that the rule of law, popularized in 19th century, has
purely formal characteristics, and possess the characteristics of generality, equality,
and certainty, but there are no requirements with regard to the content of the law
and protection of individual rights.
Today Dicey's theory of rule of law cannot be accepted in its totality. The modern
concept of the rule of law is fairly wide and therefore sets up an ideal for any
government to achieve. Accordingly - "The rule of law implies that the functions
of the government in a free society should be so exercised as to create conditions in
which the dignity of man as an individual is upheld. This dignity requires not only
the recognition of certain civil or political rights but also creation of certain
 political, social, economical, educational and cultural conditions which are
essential to the full development of his personality".
The relevance of the Rule of Law is demonstrated by application of the
following principles in practice:
 The separation of powers between the legislature, the executive and the judiciary.
 The law is made by representatives of the people in an open and transparent way.
 The law and its administration is subject to open and free criticism by the people,
who may assemble without fear.
 The law is applied equally and fairly, so that no one is above the law.
 The law is capable of being known to everyone, so that everyone can comply.
 No one is subject to any action by any government agency other than in
accordance with the law and the model litigant rules, no one is subject to any
torture.
 The judicial system is independent, impartial, open and transparent and provides a
fair and prompt trial.
 All people are presumed to be innocent until proven otherwise and are entitled to
remain silent and are not required to incriminate themselves.
 No one can be prosecuted, civilly or criminally, for any offence not known to the
law when committed.
 No one is subject adversely to a retrospective change of the law.

Rule of Law and Indian Constitution

In India the Constitution is supreme. The preamble of our Constitution clearly sets
out the principle of rule of law. It is sometimes said that planning and welfare
schemes essentially strike at rule of law because they affect the individual
freedoms and liberty in many ways. But rule of law plays an effective role by
emphasizing upon fair play and greater accountability of the administration. It lays
greater emphasis upon the principles of natural justice and the rule of speaking
order in administrative process in order to eliminate administrative arbitrariness.
Important Components of Rule-of-Law Reforms
a) Court Reforms
 The efficiency of the courts is an important component in rule-of-law reforms as
the existence of a judiciary is a fundamental aspect of the rule of law.
 To increase accountability and transparency, information technology systems may
be installed to provide greater public access. To increase independence of the
courts, the government can provide them with funding that will allow them to
make their own financial and administrative decisions.
 Recent aggressive judicial activism can also be seen as a part of the efforts of the
Constitutional Courts in India to establish rule-of-law society, which implies that
no matter how high a person, may be the law is always above him. Court is also
trying to identify the concept of rule of law with human rights of the people. The
Court is developing techniques by which it can force the government not only to
submit to the law but also to create conditions where people can develop capacities
to exercise their rights properly and meaningfully. However, separation of powers
should be maintained.

b) Legal Rules
 Another important rule-of-law reform goal is to build the legal rules. As Fuller
stated, “laws must exist.”

c) Institutional Encouragement on the Global Level

 To encourage additional country-specific development, in the early 1990s the
World Bank and the International Monetary Fund (IMF) began conditioning
financial assistance on the implementation of the rule of law in recipient countries.
These organizations had provided aid to support initiatives in legislative drafting,
legal information, public and legal education, and judicial reforms, including
alternative dispute resolution. By conditioning funds on the establishment of the
rule of law, the World Bank and the IMF also hope to reduce corruption, which
undermines economic development by scaring away investors and preventing the
free flow of goods and capital. Currently, in its Sustainable Development Goals
(SDG), the United Nations (UN) also champions the rule of law as a vehicle to
bring about more sustainable environmental practices.

Conclusion
Rule of law is mostly believed to be a modern concept which is a gift of
democracy however it is something which is fundamental to the very basic idea of
good governance
We need to focus on the weaknesses and loopholes so that we can remove or plug
them. Having said this, we cannot resist ourselves from adding that it is not that
only the three organs of the State are to be blamed for the dismal state of rule of
law in the society. Other actors like the media, civil society and even the ordinary
citizen cannot run away from their respective responsibilities. Therefore it is
equally important that all the actors of the society ensure for the maintenance of
Rule of Law.