A Study on The Various

Sources of Law
and
Their Relevance

Submitted by- Adarsh Sharma

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my Legal Research

Teacher "Pallavi Gusian” Who Gave me Golden Opportunity to do this
wonderful project on the topic “A Study on The Various Sources of Law
and Their Relevance” which also helped me in doing a lot of research
and I come to know about so many new things.

I would also like to extend my gratitude to the Principal Sir

"Dr. Sharafat Ali" for providing me with all the facility that was
required.

It helped me increase my knowledge and skills.

 Table Of Content

S. No. Content Page No.

1 4
Sources of Law-Meaning

2 5
Legal source of English law

3 Sources of law: Indian 7

Perspective
4 Custom as a Source of Law 8

5 12
Legislation as a Source of Law

6 Judicial precedent is a source of 18

Law
7 25
Other Sources of Law

27
8 conclusion

28
9 Bibliography
The term 'sources of law' has been interpreted by different writers in
various ways and it's been utilized in different senses. It is, therefore,
necessary to differentiate between its various meanings and determine
the premises of every.

1. Sources of Law-Meaning
The term "sources of law" is generally used in two senses in India In the
first, according to Hindu scriptures-duty is the foundation Seed of all
law; while according to modern jurisprudence, it is the sovereign from
where the law emanates. In the second sense, the expression sources
of law' means where one must resort to urge at law. In other words,
the evidence of records of land or books or reports, etc. have to be
looked into for the purpose of leading or knowing the law. Hindu law is
derived from the Sruti and Smriti, as well as the immemorial customs
by which the divine will and reasoning-that is law is expressed. It
comprises four Vedas, six Vedangas, and the Upanishads which deal
with religious rites, true knowledge, and liberation. There are, however,
a few passages containing incidental collusion to a rule of law. Smritis
are the principal source of lawyer's law. Religious rites, positive law,
penance, knowledge, and liberation are covered in the Code of Manu
and Yajnavalkya. The Code of Narada exclusively deals with positive law
alone)
In modern jurisprudence also the term "sources of law" is broadly used
in Two senses. Sometimes it's utilized in the sense of State or the
sovereign from which the law derives its force and validity. In another
sense, it is used to denote the causes of law or the contents or matter
of which law is composed. Dr. C.K. The true sources of law are the
mechanisms according to Allen by which principles of conduct acquire
the status of law owing to their certainty, uniformity, and binding force.
According to Fuller, the "source of law" includes the fabric from which
the Judge obtains rules for deciding cases. In this sense, it includes
statutes, judicial precedents, customs, opinion of legal experts, jurists
etc.2
According to law philosophers, the "law features a divine origin. The
Holy Books describe it as a gift from God. As stated earlier, Vedas and
Smritis are sources of law consistent with Hindu Jurisprudence as they
need to originate from the sages. Likewise, Quran is the word of God
and therefore, a positive source of Muslim law. The Hadis is an
authoritative compilation of God's precepts that were inspired by the
Prophet.
The exponent of the analytical school of jurisprudence, John Austin,
refers to three distinct meanings of the term "sources of law". Firstly,
the term refers to the authority from which the law originates, namely,
the sovereign. As a second example, it may refer to historical sources
from which it can be gleaned that rules of law exist, such as the Code of
Manu, the Commentaries of Yajnavalkya, or the Justinian Code. Thirdly,
the term sometimes refers to the causes which give the rules of society
the force of law e. g., legislation, custom, equity, law, etc. Thus, Austin's
three meanings of "sources of law" may include (i) direct authority: (ii)
historical documents; and (iii) causes.4

2. Legal source of English law

The legal sources of law may not be necessarily the same in all the
systems. In other words, different legal systems may have different
sources of rights, e.g., law. Even the same legal system may have
different sources of law at different times. For example, the Hindu
jurisprudence recognized: (1) Dharmashastras (ii) Commentaries &
Digests, and (3) Custom as three legal sources of Hind law prior to the
codification of Hindu law but after its codification in 1955 enacted
Hindu law and precedents have assumed importance as sources d
Hindu law. So far English law is concerned (i) legislation, both supreme
and subordinate, (ii) case law or judicial precedent, (iii) custom, and (iv)
agreement or the conventional law, have been recognized as sources of
Law: 1 However, English jurisprudence does not recognize literary
source as a legal source.7

The English Corpus Juris is divisible into two parts, namely, (1) statute
or legislation, and (ii) precedent having its source in judicial decisions,

In addition to legislation and precedent, English law also recognizes

custom conventional law as two other legal sources of law. When
custom fulfills the requirements laid down by law for their recognition,
they become obligatory rules of conduct which are called the
customary laws. The conventional law, on other hand, is formed out of
an agreement between the parties and may be in addition to or in
derogation of the general law of the land. To illustrate, nomic law,
having its source in subordinate legislation of private bodies, such as
universities, municipalities, etc., is conventional law. The local law
which is forced in a particular part of the State's territory also comes
under this category.

From the above discussion, it may be inferred that the English legal
system recognizes four main sources of law. They are:
(1) Custom which includes customary law.
(2) Legislation which consists of enacted law.
(3) Precedent comprising case law or judicial decisions.
(4) Conventions based on agreements.

Prior to the British rule in India, Hindus and Muslims who constituted
the major population of this country were governed by their personal
laws, namely, Hindu law for Hindus and Mohammedan law for Muslims.
Original Hindu law recognized four sources of law, namely, (1) the Sruti,
(ii) the Smritis, (iii) the conduct of the virtuous, and (iv) one's own
conscience. In course of time, the last two receded into the
background.
Sources of law: Indian Perspective

The primary sources of Mohammedan law were also more or less

similar namely, (1) Quran, (2) Sunnat and Ahadis which meant
traditions, (3) m (consensus of opinion), (4) Kiyas, i. e., analogical
deductions. It is claimed that both these laws come from a
transcendent source and recognize King as a magisterial authority. The
Sruti, as a source of Hindu law, and the Quran, as a source of
Mohammedan law, are both supposed to be direct revelations from
God, yet the languages are both human in origin. The two, however,
differ on one major point-while Mohammedan law claims human
beings, namely, Prophet Mohammad founder, no such claim is made by
Hindu law. as it

With the introduction of English common law in India, As a result,

English legal sources replaced earlier indigenous sources of law and are
now an integral part of modern Indian jurisprudence, which has its
origins in British law.

In the modern legal systems, legislation occupies a prominent place as a

source of law since most of the laws are made by the Union or the State
legislatures. The role of custom as a source of law is diminishing day by
day as societies are changing fast adopting new ways of life and living.
Precedent as a source of law is also limited because Judges have to
consult many other sources, such as juristic writings, foreign decisions,
and the moral and social values of the time and place when deciding
cases and issuing judgments.
 3. Custom as a Source of Law
The regulation of human conduct relies heavily on custom
almost all the societies. In fact, the custom is one of the oldest sources
of law-making. It may be defined as a continuing course of conduct that
has become regarded by acquiescence or approval by the community
that observes it as the norm of behavior for members of society. As the
legal system grows, the importance of custom as a source of law
continues to decrease. The reason is that with the emergence and
growing power of the State, the custom is largely superseded by
legislation as a source of law.

Manu categorizes the origins of custom as a source of law in ancient

times into four distinct stages, namely,
(i) A revelation or the utterances and thoughts of an inspired seer
(RMunis);

(ii) The utterances of revered sages, passed down orally from

generation to generation (shruti);

(iii) The approved and immemorial usages10 of the people; and (iv)
That which satisfies a sense of equity and good conscience acceptable
to reason.

a. CLASSIFICATION OF CUSTOM
Two types of custom can be distinguished:
1. Custom without sanction, and
2. Custom having sanction.
The types of sanctioned custom are:
i. Legal Custom, and
ii. ii. Conventional Custom.
Legal Custom can also be divided into two types:
a. General Custom, and
b. Local Custom.
1. Custom Without Sanction:
These are those customs which are non-obligatory. All of them are
observed because of public opinion. Positive morality is the Austrian
term for them.
2. Customs with State sanctions are those which are enforced by the
state.

These customs are backed by sanctions. There are two types of these
customs:

Legal custom: Legal customs are those that have total and
unconditional legal power. These norms serve as a legally binding rule
of thumb. They've been acknowledged by the courts and are now part
of the legal system. They are enforced by the courts. Two types of Legal
Customs are:
a. LOCAL CUSTOM
A local custom is one that is observed in a specific area, such as a
district, town, or region. But they are doing not imply geographical
locality only. Sometimes, certain sects or families take their customs
with them wherever they are going. They too are called local customs.
Local customs in India may thus be classified into two categories:
geographical local customs and private local customs. These
conventions apply specifically to a certain location, group, or family.
Local custom, according to Halsbury, is a special norm that has existed
really or presumptively from time out of memory and has acquired the
power of law in a specific location, despite being opposed to or
inconsistent with the common law of the realm. "To be lawful, a local
custom must be maintained, reasonable, continuous, and permanent,
and it must not be in conflict with any existing legislation."
b. GENERAL CUSTOM
A common custom is one of the roots of the law of the land since it is
practiced throughout the country. There was a time when common law
was considered to be an equivalent because the general custom of the
realm followed from the past, but today it's not so. Now only the
legislation gone by British parliament and precedents is considered the
sources of common law. 'A broad custom must also meet specific
characteristics if it is to be a source of law,' according to Keeton. It must
be reasonable, followed, and accepted as binding, should not be in
conflict with the statute law of the country, and must be in existence
from time immemorial.

CONVENTIONAL CUSTOM
Usage is another term for a traditional custom. It is a well-established
practice whose legitimacy is contingent on its acceptance and
incorporation into the contract between the parties who are bound by
it. In basic terms, the customary practice is conditional, meaning that it
will only be binding on the parties if they accept and incorporate it into
their agreement. A traditional custom bind the parties not because of
any legal authority, but because it has been openly or impliedly
integrated into a contract between the parties. When two parties
engage in a contract, the whole parameters of the agreement are
usually not stated explicitly, and the majority of contracts are inferred.
The purpose of the contracting parties can be deduced from the
existing customary law in the trade community. A traditional custom
might be either local or national in nature. A traditional custom must
also meet the requirements of a legitimate custom in order to have
legal status. That is, it must be ancient, it must not be against the law, it
must be logical, and it must be consistent with morals and public policy.
It is crucial to note that in the case of Asarabulla v. Kiamtulla, the court
found that a custom or usage that is opposed to any stated condition
set forth in a contract is not enforceable by law.

b. THEORIES REGARDING TRANSFORMATION

OF CUSTOM INTO LAW

The following are two hypotheses about the transition of custom

into law:
i. Historical theory: -The main exponents of this theory are Karl
Von Savigny, his disciple Puchta, which is based on custom. A
custom carries its justification in itself. The custom, according
to Puchta, is separate from the law of sovereignty. It exists
independently of any official proclamation or recognition.
Custom, according to Sir Henry Maine, is a source of formal
law. The custom, according to Puchta, is separate from
sovereign law. It exists independently of any official
proclamation or recognition. Sir Henry Maine considers
tradition to be a source of formal law. "Custom is transcending
law," Manu claims. J.C. Gray further claims that a large number
of laws were enacted not merely against the preferences of the
people, but also against the views of the vast majority of them.
Allen also stated that all customs cannot be traced to the
people's collective awareness. According to this idea, the
development of law is independent of any individual's arbitrary
desire. People's collective consciousness gives rise to custom. It
comes from a deep feeling of rightness. The people's will is
what gives law its existence. "The formation of most of the
customs is not the result of any conscious thinking but of
tentative practice," Paton says of the historical view.
 ii. Analytical theory: - Austin is the most prominent proponent of
this notion. He claims that custom is not the law in and of itself,
but rather a source of law. A custom will not become law
unless it is recognized by legislation and validated by the
judiciary. The genuine position, according to Gray, is that the
law is what the judges pronounce. All sources of law are
legislation, precedents, traditions, and morals. Customs are not
laws when they develop, according to Holland, but they are
mainly converted into laws by state acknowledgment. A
custom is only a law to the degree that it is sanctioned by the
sovereign and from the moment it is sanctioned. The custom,
he claims, is both a legal element and a source of law. Salmond
agrees with this viewpoint. Gray also admits that custom is one
of the origins of law, but it is far from the only one. “Customs
develop via behavior, therefore assessing their legality purely
on the basis of an element or express sanction provided by
courts of law or other specified authority is a mistake," Allen
said of the Analytical position.

4. Legislation as a Source of Law

The legislation means the process of lawmaking. Legis means "law" and
Latum means "making," therefore it alludes to lawmaking. According to
Austin, it refers to the creation of law by a supreme or sovereign power
that must be obeyed by individuals from all walks of life. Legislation,
according to Salmond, is the process of producing laws by a competent
and capable authority.
Legislation is the process of producing laws in which a responsible
authority is tasked with developing and implementing laws in a specific
state. It is also stated to be a rigorous notion of lawmaking since there
is only one body charged with the task of lawmaking, and there is little
space for any changes because the laws are codified and airtight,
leaving a very small range of adjustment.

5.1 Definition of Legislation

According to Salmond: “Legislation is that source of law which
comprises in the assertion of lawful standards by a competent
specialist.”
According To Austin: “Legislation is the command of the sovereign or
the superior authority which must be followed by the common masses
backed by sanctions”.
According to Gray: “Legislation implies the formal expression of the
administrative organs of the general public.”
5.2 Types of Legislation
Legislation can be used for a variety of purposes, including to
command, authorize, endorse, provide, authorize, allow, proclaim,
constrain, and cancel. As a result, the welfare of people must be
considered while drafting legislation or the rule of law, and it must be
accepted in the residents' best interests.
The following are some examples of various sorts of laws.
5.2.1 Supreme Legislation
The supreme legislation is that which is enacted by the state's
sovereign intensity. As a result, several other authorities, which are
state organs, are unable to control or check it. It is regarded as
unrivaled as well as legally powerful. Dicey's work, 'The Law of the
Constitution,' has an established element of this rule.
Its capability is unrestricted by any legal means. The Indian parliament
is also a powerhouse. Despite many constitutional revisions affecting its
authority, it is not subject to any other administrative bodies inside the
state. As a result, no other authorized organ of the state may revoke,
annul, or curtail the state's sovereign jurisdiction.
5.2.2 Subordinate Legislation
Subordinate law is legislation enacted by a body other than the state's
Supreme Specialist. It is enacted under the Supreme Power's authority.
The Supreme Expert is responsible for the actuality, validity, and
continuance of such law. It can be revoked and canceled at any
moment by the sovereign authority, hence it must provide a framework
for sovereign law. The control of subordinate legislation is subject to
legislative oversight. There are five distinct forms of secondary
legislation. These are as follows.
5.2.3 Colonial Legislation
Nations that are not independent and are ruled by another state lack
the Supreme authority to enact laws. These countries can fall within a
variety of categories, including colonies, domains, secured or trust
territories, and so on. Their laws are subject to the Supreme Legislation
of the state over which they have power. As a result, it falls within the
category of secondary law.
England has had numerous colonies and territories. The laws they pass
for self-government are subject to amendment, nullification, or
supersession by British Parliament legislation. Because the colonies had
achieved complete freedom and almost all British realms have
unrestricted legislative authority, this type of subordinate legislation
may be phased out sooner rather than later.
5.2.4 Executive Legislation
Executive legislation is created when legislative powers are given to an
executive by a designated authority. Despite the fact that the official's
primary responsibility is to carry out the laws and maintain the
organization, he or she is always reliant on subordinate enactment
powers. For all intents and purposes, today's laws contain assignment
statements that delegate law-making authority from the office to the
executive in order to improve statutory arrangements.
5.2.5 Judicial Legislation
The judicial system has been given the authority to establish and apply
its own laws in order to protect the country's judicial system's
openness. This will also ensure that no other government organ is
involved in the administration of the state's judicial system.
5.2.6 Municipal Legislation
Municipalities are given the authority to enact bylaws governing their
neighborhoods. A bye-law enacted by a local governing body governs
its own territory. Municipal corporations, Municipal Boards, Zila
Parishads, and other municipal authorities exist in India. There is a
movement to give Panchayats broad authority. Along these lines, there
is a chance that this type of subordinate enactment might be expanded
in our country. The Parliamentary Balwant Rai Committee
recommended various parliamentary modifications in the country's
Panchayat structure. The 73rd Amendment eventually included the
proposals into the Constitution.
5.2.7 Autonomous Legislation
When the Supreme authority provides powers to a group, the law
made by the last is known as autonomous law, and the body is known
as a self-ruling body of individuals to administrate on problems that
concern them as a group. A railway is a self-contained entity. It
produces bye-laws for its organization's guidelines, and so forth. A
college is a self-governing body as well. In India, several universities
have been designated as autonomous organizations.
5.2.8 Delegated Legislation
• Delegated (subordinate or subsidiary) Legislation alludes to those
laws made by people or bodies to whom parliament has delegated law-
making powers.
• Where Acts are made by Parliament, a Principal Act may cause
arrangement for Subsidiary Legislation to be made and will to indicate
who can make laws as such under that Act.
• Delegated Legislation can just exist in connection to an
empowering or parent Act.
• Delegated Legislation provides the myriad regulatory nuances
required to ensure that the Act's arrangements function properly. It
might be ordered by the government, local governments, or the courts.
• The most well-known kinds of Delegated Legislation are Guidelines
and Statutory Rules. They are decisions taken by the Executive or a
Minister that affect the entire public. A Local Government Authority
makes By-laws and, on rare occasions, Ordinances that apply to the
general public who live in the area. When there is a defect in delegated
legislation, the Principle and Parent Act frequently reflects the
approach to be followed in Courts.

5.3 Advantages of Legislation as a Source of Law

In addition, when compared to other sources of law, legislation has
consistently been seen as a key wellspring of law. There are two
obvious justifications for why legislation is regarded as one of the most
important sources of law. To begin with, it entails the establishment of
valid principles by lawmaking organizations that the State considers to
be law.
Furthermore, it wields State power and authority. Dias and Hughes
claim that conscious law-making by a legitimate power, i.e., the State, is
referred to as 'legislation,' implying that the sovereign is appropriately
regarded as the highest power by the courts. Below is a discussion of
the relative merit of legislation versus precedent and traditions.
Some of the main advantages of legislation are as follows.
1. Abrogative Power—It has the authority to amend or repeal ancient
laws that are not under the control of several sources.
2. Effectiveness—It divides the responsibilities of drafting and
enforcing laws between the Legislature and the legal executive.
3. Declaration — it gives those principles of law will be known before
they are authorized.
4. Reliance on Accidental Legislation — Legislation is independent and
emerges out of as the authoritative source of law it need not hold up
until the original case of legislation.
5. Unrivalled in Form — It is predominant in structure, brief, clear,
effectively available, and understandable as against case law, which is
an increase of sense in a considerable number of pointless issues.

5.4 Precedent and Legislation

1. Legislation is derived from the legal process, which is essentially
legislated and enforced by the state, whereas precedent is derived
from ancient and historic court declarations.
2. The assembly has the authority to impose legislation on the judiciary.
On the other side, the courts establish precedents.
3. Legislation is the official proclamation of law by the governing body,
and precedents are the recognition and application of new legal norms
by courts in the administration of fairness, justice, and good
conscience.
4. Legislation is enacted prior to the emergence of a case. On the other
hand, precedent arises only after the case has proceeded and been
determined by the court.
5. Legislation has an exhaustive structure, but the legal precedent is
limited to similar circumstances.
6. Legislation is frequently and typically forthcoming, but the precedent
is inherently retroactive.
7. Legislation is proclaimed or circulated before it takes effect, whereas
precedent takes effect simultaneously, i.e., when the decision is
expressed.
8. Legislation is supposed to be completed at the end of the legislative
process, but it isn't because of precedent. The precedent, which
incorporates ratio decidendi and obiter dicta, is intended to put an end
to a specific legal
9. While it is not difficult for the general public to understand the
legislation enacted by the legislative body, the precedent established by
case law is not well understood. Attorneys in charge of legal affairs
aren't always up to date on the latest case law. As a result, it sets an
ambiguous precedent.
10. Legislation is created using a deductive process, whereas case law is
created using an inductive strategy.

5.5 Custom and Legislation

1. Legislation exists primarily through statute, although customary law
is universally recognized within a given border.

2. Laws are enacted based on imaginary norms.

Customary law, on the other hand, is progressively being implemented

as a result of its long and well-established history.

3. In contrast to custom, which is the most established sort of law and

is followed by a certain sect, legislation as a source is actually a long-
lasting nature of law.

4. Legislation is an essential feature of modern society, whereas

customary law sprang from a primitive social order.

5. Legislation is complete, accurate, written in the correct format, and

available to the public. Customary legislation, on the other hand, is
often unwritten and difficult to follow.
5.6 Demerits of Legislation
There is no source of law that is faultless and comprehensive in every
way; every source of law includes defects and gaps, which are as
follows in the case of legislation.
1. Rigid nature—While the law in the statutes is inflexible, the law in
precedents is varied and adaptive.
2. In light of Hypothesis — Legislation is commonly noted to be
blemished in its application to the mind-boggling challenges that
emerge in real life via piecemeal solutions arising from sensible needs
and convenience.
3. Excessive Importance of the Wordings—Wordings in legislation are
given a great deal of weight. As a result, if the articulation is incorrect,
the law is effectively flipped on its head. The phrasing of the precedents
is almost irrelevant because there is a legitimate introduction that
performs different tests on the precedent's application as a source of
law. The same may be said about customary law.

5. Judicial precedent is a source of Law

6.1 Judicial precedents
A precedent is a concept or rule stated or established in a previous legal
case. When a comparable case with identical circumstances is brought
before it, it is binding or advisory to tribunals and courts. These are
nothing more than earlier legal decisions made by judges in comparable
instances in these courts that define what must be done in similar
situations that come up before the court, similar cases that come up in
lower courts, or similar cases that come up before a lower bench.
When the number of judges on a bench is smaller than the number of
judges who determined the case on which the new bench would base
their judgment, it is referred to as a lesser bench. The Government of
India Act of 1935, enacted in the 18th century, stated that decisions
made in Federal courts and Privy Councils would be binding on the
courts throughout the British monarchy. Precedents have been a legal
feature of the Indian legal system since the 18th century, and they have
helped numerous judges create conclusions and overturn rulings that
were later proven to be arbitrary or thoughtless.
6.2 Types of precedents
1. Declaratory and original precedents: Declaratory precedents rely
only on the application of a rule in a previous legal case. New laws are
created as a result of original precedents. New laws are enacted and
enforced here. For example, we once believed that the ability to alter
the constitution was unrestricted until it was established that such
authority must be limited and that all legislation in the Ninth Schedule
must henceforth be examined against the fundamental framework.
2. Persuasive: In this case, precedent is not needed to be followed. This
case will be strongly weighted by the judge and taken into account. It is
not regarded as a direct source of legislation, but rather as a collection
of past precedents. This is most common in High Courts when one High
Court's rulings can be used as convincing precedents in another. When
identical matters emerge in several High Courts, the verdict might be
reached by relying on the decisions of other High Courts. They will not
be binding, but they will be compelling, and they will operate in favor of
the litigating party who has already received earlier verdicts.
3. Absolute authority: In certain instances, the judge is required to
follow the previous ruling. Even if the judge believes the decision is
incorrect, he or she is bound by the precedent due to the sheer
quantity of cases. This is most common when the bench is smaller than
the bench that established the precedent on which the judge is relying.
This is also feasible in circumstances of hierarchy when lower courts
must rely on higher courts' rulings.
4. Conditionally authoritative: In this scenario, precedents are deemed
authoritative as a general rule, but they can be ignored in cases when
the parties are appearing before the Supreme Court. It is also possible
to reverse the decision. For example, we formerly thought that the
ability to change the constitution was unlimited until it was decided
that it needed to be limited and that all legislation in the Ninth
Schedule would have to be examined against the fundamental
framework.
6.3 Jurisprudential precedents' importance
With a single constitution, India has a unified judicial system. This
indicates that the Constitution's interpretation is delegated to only one
branch of the judiciary. The Supreme Court is the last arbiter of
interpretation. This is part of our Constitution's core basis. Unlike the
United States, where federalism is practiced in the real sense, we are
federal with a strong center. This was done in order to ensure that,
although having their separate State Legislatures, the individual
provinces remain kept together by a strong central. This was done to
prevent riots and demonstrations in the newly established nation,
which had not only been administered by Britishers but had also
recently seen a partition that resulted in a refugee crisis comparable to
Europe's post-World War II refugee crisis. The Supreme Court and its
judges are the most qualified to make a judgment. When it comes to
interpreting the law, there is no doubt about who the most effective,
suitable, and only body should be. It's the Supreme Court, after all.
Judicial precedents assist us to ensure that the law of the nation is
consistent in these situations.

6.4 The nature of legal precedents

• They must be solely constitutive rather than abrogative. As a result,
while a court ruling can create a law, it cannot change it.
• When there is a well-established rule of law, the judge must follow it.
• A judge cannot make conclusions based on what they believe should
be occurring, should have occurred, or should have happened instead
of the established rule of law.
• The precedent's purpose is confined to filling in the gaps in legal
systems by enacting new legislation.
6.4.1 Importance
The settling of disputes is the principal role of the judiciary. Initially, the
courts are governed by conventions and their own sense of fairness
while adjudicating. Later on, legislations become the primary source of
law, and judges' rulings are based on the Rule of Law.
1. The inductive approach– In this technique, the judges' choices are
heavily relied upon. Before issuing a final decision in a matter of a
similar character that has already been adjudicated upon, the judges
check into previously decided cases in the same or superior courts.
They apply broad rules and concepts from the preceding case to the
instances in front of them. They then make their decision. The Inductive
technique is the name for this approach.
2. The deductive technique– In this strategy, legislators and established
legislation are heavily relied upon. It may appear to be a positivist
approach, but most judges are now allowed to interpret the law as they
think right in order to promote justice, equality, and good conscience.
Cases are decided under this system based on approved laws and
statutes that have been codified, and judges determine cases based on
these statutes. The judges in this case do not make decisions based on
earlier decisions.
6.4.2 In a conventional judicial system,
The significance of decisions as a source of law was recognized from the
beginning. Moses was the first law reporter, according to Sir Edward
Coke's prologue to the sixth section of his report. It has even been
declared in holy scriptures that noble men's paths must be carried
down from generation to generation. Precedents are based on this
concept. Judicial rulings were regarded as a source of law throughout
the Babylonian empire and the Chinese dynasties.
In today's legal system, The Anglo-American legal system is a judge-
made system among current legal systems. It's sometimes referred to
as 'Common Law.' It has only evolved as a result of legal rulings. The
majority of legal areas, such as torts, were formed solely by judges.
Judicial rulings have shaped England's constitutional legislation,
particularly when it comes to citizen freedom. Precedents are valued
highly not just in municipal law but also in international law. The
International Court of Justice's judgments constitutes a significant
source of international law. The International Court of Justice in The
Hague has acknowledged these precedents under Article 38(2)(d) of the
Statute of the International Court of Justice. Article 59 of the same
treaty indicates that the court's rulings only have persuasive value in
future cases, implying that the International Court of Justice is not
bound by its own decisions in future cases with factually comparable
facts. It states that only the parties to the case are bound by the
judgment.

6.3 Stare Decisis Doctrine

The legal principle of stare decisis requires courts to follow and respect
precedents established by comparable former decisions. This legal
concept is based on the Latin adage Stare decisis et, not quieta movere,
which means "to stand by judgments and not disturb the undisturbed."
In the legal context, courts understand this as implying that existing
issues should not be disturbed in order to maintain continuity. If
various judges issued different opinions in different courts on the same
facts, there would be chaos, and many parties would feel as if their
rights had been violated, as well as helpless and as if justice had not
been given to them. This doctrine is basically a rule or a requirement
that a Court must follow the rules established by a superior court.
In most civil law jurisdictions, verdicts that need to be perceived as
having a binding precedent are not legitimate because a plain reading
of the text is considered as interfering with the power of courts to
interpret the law and the authority of the legislature to make the law.
Most of these systems, on the other hand, acknowledge the notion of
jurisprudence constant, which contends that, despite their
independence, judges should make decisions in a predictable and non-
chaotic way. Discretionary power, as a notion, refers to the ability of a
decision-maker to use their own subjective judgment in deciding
amongst numerous plausible possibilities. Because there are no
technically valid options in such a decision, discretionary authority is by
definition broad and allows for a wide range of options. Discretionary
authority should not be granted to just one individual, especially if it
has far-reaching repercussions. In the rare case that it is bestowed on a
single individual, there must be stringent controls in place to ensure
that it is used responsibly. As a result, the right of a judge to interpret
the law does not prohibit the establishment of a small number of
binding case laws.

6.4 Authority of judicial precedents

There are several circumstances where issues must be addressed based
on legal principles included in the constitution's language. Such
principles are derived by identifying the material realities of the
situation in order to develop a set of rules that may be applied
universally. The principle that emerges from such a case is relevant not
just to that case, but also to instances that are substantially comparable
to the decided case in terms of significant facts and features. Ratio
Decidendi is the name of this principle. Tissue that do not necessitate
the establishment of general principles and are resolved based on the
facts of the case do not establish any general principles. Obiter Dictum
is the name for them.
It is the Ratio Decidendi of a case that is binding and not the Obiter
Dictum that has the binding effect on a precedent. It is for the judge to
determine the Ratio Decidendi of the decision and the method of
application of the Ratio Decidendi to the case which he is going to
decide. This gives an opportunity to him to mold the law according to
the changed conditions.
6.5 Merits and demerits of judicial precedents
Whether we comprehend or not, there is a purpose for a case's
decision. It is imperative that the same be followed in the future. It is
unnecessary to re-argue settled cases since it wastes the time of the
court. Precedents represent public opinion since they are founded on
customs. It ensures that the legislation is clear. While the law
establishes specific scenarios, precedents provide for aspects that
cannot be accounted for in theory. It instructs judges on how to think
logically and without bias. Certain critical points may not be discussed
in precedents that might jeopardize a party's case, and a lower court
cannot overrule a higher court's decision. The judgment itself may be
incorrect, but it cannot be reversed.

6. Other Sources of Law

a. Religion:

Religion played a significant impact in the formation of rules in the early

community. In most nations, religion was used as the basis for
legislation. "Indeed, the early law of Rome was little more than a corpus
of technical religious regulations, a system of procedures for attaining
religious privileges via the appropriate execution of particular
theological formulae," writes Woodrow Wilson.
The origins of Hindu law in India may be traced back to Manu's code.
Similarly, Shariat may be traced back to the origins of Mohammedan
law. Divine law, in the meaning of the phrase, is a law revealed by God
via man. Though man may spread it, God is the ultimate wellspring of
divine law.

7.2 Equity:

Equity is another source of law. Equity is "anybody of regulations

existing alongside the original civil law, built on independent principles
and claiming incidentally to transcend the civil law in virtue of a higher
sanctity inherent in those principles," according to Sir Henry Maine. It's
an "informal way of enacting new legislation or amending existing
legislation based on inherent fairness or equality of treatment."
A judge's job is to interpret the law and administer justice, as everyone
knows. However, laws might not always apply to every situation.
Principles of equity are employed in circumstances when laws do not fit
in or are confusing, and cases are determined based on common sense
and fairness.
 Conclusion

In the beginning periods of the general public, the customs were the most significant, and in some
cases, the sole wellspring of law. The customs lie in the establishment of the entirely legitimate and
lawful framework. They appear with the presence of the general public. Custom is the continuous
practice with regards to the primitive society.

Custom is a standard or practice which is trailed by the general population from time immemorial.
Customs are supported and are fused and exemplified in legitimate standards. The impact of
custom can be followed in any legitimate and legal framework. Custom is a valid and authoritative
source of law but the only condition is that it must be valid and a lawful custom.

Legislation is therefore regarded as the most important source of law in the prevalent times. Hence it is
considered to be the codified form of law which is commanded by the sovereign to the common masses,
and it becomes a predicament situation to regard legislation as the authoritative source of law.

Legislation is one of the foremost and most important sources of law in today’s world. Most countries in
today’s world regard legislation as an essential source of law and follow this system of lawmaking.
Although some lacunae and loopholes are there which exists in the present form but then too the
difficulties such faced are relatively less than that faced from the other sources of law viz. custom and
precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.

The use of precedents in the legal system is important for various reasons. Precedents serve as a
reminder and as a base to build on cases. 
 BIBLIOGRAPHY

JURISPRUDENCE AND LEGAL THEORY

by Dr. N.V. Paranjape (Author)
Publisher:  Central Law Agency (CLA); 2016th edition (1 January 2016)

 Works written by John Austin (legal philosopher) 

Custom as a Source of Law

https://blog.ipleaders.in/customs-source-law/

Judicial precedent is a source of Law

https://blog.ipleaders.in/judicial-precedent-source-law/

Legislation as a Source of Law

https://blog.ipleaders.in/legislation-source-law/