CS Executive: JIGL

CHAPER 1: SOURCES OF LAW- PART I

For the purpose of clarity and better understanding of the nature and meaning of law, we may classify
various definitions into five broad classes:
1. Natural School
Ulpine defined Law as “the art or science of what is equitable and good.”
Cicero said that Law is “the highest reason implanted in nature.”
Justinian’s Digest defines Law as “the standard of what is just and unjust.”

2. Positivistic Definition of Law

law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a duty and is
backed by a sanction. Thus, the command, duty and sanction are the three elements of law.

3. Historical Definition of Law

Savigny’s theory of law can be summarised as follows:
– That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
– Law is not universal in its nature. Like language, it varies with people and age.
– Custom not only precedes legislation but it is superior to it. Law should always conform to the popular
consciousness.
– Law has its source in the common consciousness of the people.
– Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important than
the legislator.

4. Sociological Definition of Law

Duguit defines law as “essentially and exclusively as social fact.”

5. Realist Definition of Law

law is nothing but a mechanism of regulating the human conduct in society so that the harmonious co-
operation of its members increases and thereby avoid the ruin by coordinating the divergent conflicting
interests of individuals and of society which would, in its turn, enhance the potentialities and viability of
the society as a whole.

Laws are made effective:

- By requiring damages to be paid for an injury due to disobedience
- By requiring damages to be paid for an injury due to disobedience
- By preventing disobedience
- By administering some form of punishment

PRINCIPLE SOURCES OF INDIAN LAW

(i) Customs or Customary Law: Custom is the most ancient of all the sources of law
The customs may be divided into two classes:
 Customs without sanction are those customs which are non-obligatory and are observed due to
the pressure of public opinion. These are called as “positive morality”.

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 Customs having sanction are those customs which are enforced by the State. It is with these
customs that we are concerned here. These may be divided into two classes: (i) Legal, and (ii)
Conventional.

(i) Legal Customs: These customs operate as a binding rule of law. They have been recognised and
enforced by the courts and therefore, they have become a part of the law of land. Legal customs are
again oftwo kinds: (a) Local Customs (b) General Customs.
(a) Local Customs: Local custom is the custom which prevails in some definite locality and constitutes a
source of law for that place only. localcustoms may be divided into two classes:
– Geographical Local Customs
– Personal Local Customs
(b) General Customs: A general custom is that which prevails throughout the country and constitutes one
of the sources of law of the land.

(ii) Conventional Customs: These are also known as “usages”. These customs are binding due to an
agreement between the parties, and not due to any legal authority independently possessed by them.
– It must be shown that the convention is clearly established and it is fully known to the contracting parties.
– Convention cannot alter the general law of the land.
– It must be reasonable.

Requisites of a Valid Custom

(i) Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.
(ii) Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
(iii) Reasonableness: A custom must be reasonable.
(iv) Compulsory Observance: A custom to be valid must have been continuously observed without any
interruption
(v) Conformity with Law and Public Morality
(vi) Unanimity of Opinion: The custom must be general or universal.
(vii) Peaceable Enjoyment
(viii) Consistency: There must be consistency among the customs.

(ii) Judicial Decision or Precedents

Judicial precedents are an important source of law. They have enjoyed high authority at all times and in
all countries. The rule that a court decision becomes a precedent to be followed in similar cases is known
as doctrine of stare decisis.
High Courts
(i)The decisions of High Court are binding on all the subordinate courts and tribunals within its
jurisdiction.
(ii) In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as
Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on a
Smaller Bench.
(iii) The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court
is not binding on the other High Courts and have persuasive value only.
(iv) The Supreme Court is the highest Court and its decisions are binding on all courts and other judicial
tribunals of the country.

Supreme Court: Supreme Court is not bound by its own decisions.

Kinds of Precedents:

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(i) Declaratory and Original Precedents: a declaratory precedent is one which is merely the application
of an already existing rule of law.
(ii) Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow
but
which they will take into consideration and to which they will attach great weight as it seems to them to
deserve.
(iii) Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow
whether they approve of it or not. Its binding force is absolute
(iv) Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though
ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances.

Doctrine of Stare Decisis

The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are
established”. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the
stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is
binding on the courts and should be followed in similar cases.
Ratio Decidendi
The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi.
The proposition of law which is necessary for the decision or could be extracted from the decision
constitutes the ratio.
Obiter Dicta
The literal meaning of this Latin expression is “said by the way”. The expression is used especially to
denote those judicial utterances in the course of delivering a judgement which taken by themselves, were
not strictly necessary for the decision of the particular issue raised.

(iii) Statutes or Legislation

Legislation is that source of law which consists in the declaration or promulgation of legal rules by an
authority duly empowered by the Constitution in that behalf. Statute law or statutory law is what is created
by legislation, for example, Acts of Parliament or of State Legislature.

(iv) Personal Law

Vedas, Koran etc.
SECONDARY SOURCE OF INDIAN LAW
(i) Justice, Equity and Good Conscience: the Indian courts apply to the decision of a case what is
known as “justice, equity and good conscience”, which may mean the rules of English Law in so far as
they are applicable to Indian society and circumstances.
(ii) Sources of English Law
(i) Common Law: The Common Law, in this context is the name given to those principles of law evolved
by
the judges in making decisions on cases that are brought before them.
(ii) Law Merchant: The Law Merchant is the most important source of the Merchantile Law. Law Merchant
means those customs and usages which are binding on traders in their dealings with each other.
(iii) Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor
written law
(iv) Statute Law: “Statute law is that portion of law which is derived from the legislation or enactment of
Parliament or the subordinate and delegated legislative bodies.”

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MERCANTILE OR COMMERCIAL LAW
Mercantile Law is related to the commercial activities of the people of the society. It is that branch of law
which is applicable to or concerned with trade and commerce in connection with various mercantile or
business transactions.

The following are the main sources of Mercantile Law:

1. Law Merchant 2. Principles of Equity 3. Common Law 4. Statute Law

Sources of Indian Mercantile Law

(i) English Mercantile Law: The Indian Mercantile Law is mainly an adaptation of English Mercantile Law
However, certain modifications wherever necessary, have been incorporated in it to provide for local
customs and usages of trade and to suit Indian conditions.
(ii) Acts enacted by Indian Legislature or Statute Law: The Acts enacted by the Indian legislature from
time to time which are important for the study of Indian Mercantile Law include, (i) The Indian Contract
Act, 1872,(ii) The Sale of Goods Act, 1930, (iii) The Indian Partnership Act, 1932, (iv) The Negotiable
Instruments Act, 1881, (v) The Arbitration and Conciliation Act, 1996, (vi) The Insurance Act, 1938.
(iii) Judicial Decisions: Judges interpret and explain the statutes. Supreme Court of India is the final Court of
Appeal.
(iv) Customs and Trade Usages: Most of the Indian Law has been codified. Many Indian statutes make
specific provisions to the effect that the rules of law laid down in a particular Act are subject to any
special custom or usages of trade.

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CHAPER 1:SOURCES OF LAW- PART II

Legal Theory
Legal theory is a field of intellectual enterprise within jurisprudence that involves the development and
analysis of the foundations of law. Two most prominent legal theories are the normative legal theory and
the positive legal theory. Positive legal theory seeks to explain what the law is and why it is that way, and
how laws affect the world, whereas normative legal theories tell us what the law ought to be.

Prof. HLA Hart British Legal Philosopher listed many meanings associated with the term ‘positivism’ as
follows:
 Laws are commands.
 The analysis of legal concepts is (a) worth pursuing, (b) distinct from sociological and historical
enquiries into law, and (c) distinct from critical evaluation.
 Decisions can be deduced logically from predetermined rules without recourse to social aims,
policy or morality.
 Moral judgments cannot be established or defended by rational argument, evidence or proof.
 The law as it is laid down should be kept separate from the law that ought to be.
 Positivism is most commonly understood as the fifth description above. Natural law theory claims
that a proposition is ‘law’ not merely because it satisfies some formal requirement, but by virtue of
an additional minimum moral content. According to it, an immoral rule cannot be ‘law’ even if it
satisfies all the formal requirements.

Austin’s theory
Austin is known for the Command Theory of law. According to Austin law is the command of sovereign
that is backed by sanction. Austin has propagated that law is a command which imposes a duty and the
failure to fulfill the duty is met with sanctions.Thus Law has three main features:
1. It is a command.
2. It is given by a sovereign authority.
3. It has a sanction behind it.

Command :It is an expression of wish or desire of an intelligent person, directing another person to do or
to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the
person s directed.
Sovereign: He has defined sovereign as an authority that receives habitual obedience from the people
but itself does not obey some other authority habitually.
Sanction : Is the evil consequence that follows on the violation of a command.

Criticism of Austin’s Command Theory of law

1. Welfare states pass a number of social legislations that does not command the people but confer
rights and benefits upon them. Such laws are not covered under the command theory.
2. According to Austin the sovereign does not have to obey anyone but the modern states have their
powers limited by national and international laws and norms. For example, the Government of India
cannot make laws that are violative of the provisions of the Constitution of India.
3. Austin does not provide for judges made laws. He said that judges work under the tacit command of
the sovereign but in reality judges make positive laws as well.
4. Since the presence of sovereign is a pre-requisite for a proposition to called law, Austin did not
recognize international laws as such because they are not backed by any sovereign.

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Roscoe Pound According to Roscoe Pound, for determining the scope and the subject matter of the
legal system, following five things are required to be done:
1. Preparation of an inventory of interests and their classification.
2. Selection of the interests which should be legally recognized.
3. Demarcation of the limits of securing the interest so selected.
4. Consideration of the means whereby laws might secure the interests when these have been
acknowledged and delimited, and
5. Evolution of the principles of valuation of interests.
Roscoe Pound’s classification of interests are as follows:
1. Individual interest: These are claims or demands determined from the standpoint of individual’s life
and concern. They are-
(i) Interest of personality: This includes physical integrity, freedom of will, honor and reputation, privacy
and freedom of conscience.
(ii) Interest in domestic relations: This includes relationships of parents, children, husbands and wives.
(iii) Interest of substance: This includes interests of property, freedom of association, freedom of industry
and contract, continuity of employment, inheritance and testamentary succession.

2. Public interest: These interests are asserted by individual from the standpoint of political life.
Theyare:
(i) Interests of the state as a juristic person (ii) Interests of the state as guardian of social interest.

3. Social interests: These are claims or demands thought of in terms of social life and generalized as
claims of the social group. It is from the point of view of protecting the general interest of all members of
the society. Social interests include-
(i) Social interest in the general security
(ii) Social interest in the security of social institutions
(iii) Social interest in general morals like laws dealing with gambling, bigamy, drunkenness.
(iv) Social interest in the conservation of social resources like the natural and human resource.
(v) Social interest in general progress. It has three aspects- economic, political and cultural.
(vi) Social interest in individual life. It involves self-assertion, opportunity and conditions of life.
Criticism of Roscoe Pound’s theory of law
Criticism of Roscoe Pound’s theory of law
1. Pound said that interest pre-exist laws and the function of legal system should be to achieve a balance
between competing interests but we see that a lot of interests today are a creation of laws.
2. The theory does not provide any criteria for the evaluation of interest
3. his theory gives more importance to judiciary in comparison to the legislature.
4. Pound’s distinction between Public ans Social interests is doubtful and even the distinction between
Individual and Social Interest is of minor significance.
5. The recognition of a new interest is a matter of policy. The mere presence of a list of interests is, of
limited assistance in helpting to decide a given dispute.
John William Salmond
- law was the deliverance of justice to the people
- Salmond differentiated between ‘a law’ and ‘the law’ and said that the former refers to the concrete and
the latter to the abstract
- According to Salmond law is the body of principles which are recognized and applied by the state in the
administration of justice. His other definition said that law consists of a set of rules recognized and
acted on in courts of justice. ‘Law’ in this definition is used in its abstract sense. The constituent
elements of which the law is made up are not laws but rules of law or legal principles.
- Salmond argued that the administration of justice was the primary task of a state and the laws were
made to achieve that objective.

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Criticism of Salmond’s theory.
1. Salmond’s assertion that justice is the end and law is only a medium to realize it does not always hold
true because there are a number of laws that can be called ‘unjust’.
2. The pursuit of justice is not the only purpose of law, the law of any period serves many ends and these
ends themselves change with the passage of time.
3. There is a contradiction when Salmond says that the purpose of law is the administration of justice but
limits ‘jurisprudence’ to the study of the ‘first principles’ of civil law of a national legal system because
justice is a universal concept, the jurisprudential analysis of law should not be constrained by national
boundaries.
Hans Kelson- ‘Pure Theory of Law’
- Kelsen described law as a “normative science’ as distinguished from natural sciences which are based on
cause and effect, such as law of gravitation.
- According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’. He saw
legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms
which comprised legal order.
- Kelsen’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their
validity from the basic norm
Criticism of Kelsen’s Pure Theory
1. It is difficult to trace ‘grundnorm’ (basic norm)in every legal system. Also, there is no rule or yardstick to
measure the effectiveness of grundnorm.
2. The Pure Theory also did not give the timeframe for which the effectiveness should hold for the
requirement of validity to be satisfied
3. Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyse the grundnorm because the one
will have to draw upon subjects other than law like sociology, history and morality.
4. International law does not sit well with Kelsen’s Pure theory.
Jeremy Bentham
Bentham said that every law may be considered in eight different respects:
1. Source: The source of a law is the will of the sovereign.
2. Subjects: These may be persons or things
3. Objects: The goals of a given law are its objects.
4. Extent: Direct extent means that a law covers a portion of land on which acts have their termination;
indirect extent refers to the relation of an actor to a thing.
5. Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the
sovereign will towards an act-situation and the latter concerns the force of a law.
6. Force: The motivation to obey a law is generated by the force behind the law.
7. Remedial appendage: These are a set of subsidiary laws addressed to the judges
8. Expression: A law, in the ultimate, is an expression of a sovereign’s will.
Criticism of Bentham’s theory of law
1. Due to Bentham’s strait-jacketing of laws into an imperative theory- all laws have to be either
command or permission, it does not take proper account of laws conferring power like the power to make
contracts, create title etc.
2. Bentham did not give a fair treatment to custom as a source of law. He said customs could never be
‘complete’.
3. Bentham’s theory did not allow for judge made laws and hoped that such laws would be gradually
eliminated by having ‘complete laws’.
4. The theory did not provide how a subjective criterion can be transmuted into an objective one.
5. It is not always true that an increase in the happiness of a certain segment of society will lead to an
increase in the overall happiness level because it might be associated with a diminution in the happiness
of some other rival section of the society.

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