Sources of law

Analytical Positivist School of Thought- Austin said that the term ‘source of law’ has three
different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in the
country.
2. This term refers to the historical document from which the body of law can be known.
3. This term refers to the causes that have brought into existence the rules that later on acquire
the force of law. E.g. customs, judicial decision, equity etc.

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 formal 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 It cannot be repealed, annulled or controlled by any other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.
Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High
Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd.
v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority,
then the weight should be given on the basis of rational and logical reasoning and we should not
bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger bench
should be followed.
What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the courts. However,
after 19th century, courts started to believe that precedence not only has great authority but must
be followed in certain circumstances. William Searle Holdsworth supported the pre-19 th century
meaning of the precedence. However, Goodheart supported the post-19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the
law, but they ‘declare’ what the law has always been. This theory believes that the Principles of
Equity have their origin in either customs or legislation. However, critics of this theory say that
most of the Principles of Equity have been made by the judges and hence, declaratory theory
fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or not.
They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.

There are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court

loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.
4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.

7. Erroneous Decision
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”.

Ratio Decidendi

The literal meaning of ‘ratio decidendi’ is “the reason for deciding”. Black’s Law Dictionary has
provided many definitions of this term. Let us discuss some of them.

1. The principle or rule of law on which a court’s decision is founded.

2. The rule of law on which a later court thinks that a previous court founded its decision.

3. It is a general rule without which a case must have been decided otherwise.

4. “The phrase ‘’the ratio decidendi of a case’ is slightly ambiguous. It may mean either (1) the
rule that the judge who decided the case intended to lay down and apply to the facts, or (2) the
rule that a later concedes him to have had the power to lay down.

5. “There are two steps involved in the ascertainment of ratio decidendi. First, it is necessary to
determine the facts of the case as seen by the judge; secondly, it is necessary to discover which
of those facts were treated as material by the judge”[2].

Goodhart’s View on ratio decidendi

However, Goodhart did not accept the classical definitions mentioned above. His criticisms
were:

a. That every case must contain an ascertainable principle of law, even though there may be no
opinion delivered by the judge.
b. That the statement of law may be too wide or too narrow.
While defending his definition, he said that “the whole point of my article was based on the
proposition that every case must contain a binding principle, but that this binding principle is
not necessarily to be found in the statement of the law made by the judge”.

He also said that “the judges must interpret statutes, but it would be misleading to say that they
are therefore constructing them[3]”.

He even said to the extent that “the phrase ‘ratio decidendi’ is misleading because the reason
which the judge gives for his decision is not binding and may not correctly represent the
principle”.

He suggested that the ‘principle of the case’ could be found by determining

(a) The facts treated by the judge as material, and

(b) His decision as based on them.

The judge, therefore, reaches a conclusion upon the facts as he sees them. It is on these facts
that he bases his judgment, and not on any others. It follows that our task in analysing a case is
not to state the facts and the conclusion, but to state the material facts as seen by the judge and
his conclusion based on them. It is by his choice of the material facts that the judge creates
law[4].

Thus, Goodhart placed all the emphasis on the material facts as seen by the judge, and not on
the material facts as seen by anyone else.

Current Trends in the English Legal System

Most of contemporary English authors are of the view that it is not the decision that binds (or is
overruled); it is the rule of law contained within the decision. This element of the decision is
termed as the ratio decidendi, and not every statement of law made by a judge in the case forms
part of this ratio[5].

Every decision contains the following basic ingredients:

1. Findings or material facts, both direct and inferential;

2. Statements of the Principles of law applicable to the legal problems disclosed by the facts; and
3. A judgment (or judgments) based on the combined effect of 1 and 2.

Please note that an inferential finding of fact is the inference that the judge draws from the
direct or perceptible facts. For example, negligence may be inferred from the direct facts of the
speed of a vehicle, the length of skid marks, and the state of the road. Negligence is thus as
inferential finding of fact.

For the purposes of the parties, point number 3 is the material element in the decision, for it is
what ultimately determines their rights and liabilities in relation to the subject matter of the case.
However, for the purpose of the doctrine of precedent, point number 2 is the vital element in the
decision, and it is this that is termed the ratio decidendi. Thus the ratio decidendi may be defined
as the statement of law applied to the legal problems raised by the facts, upon which the decision
is based[6].

Not every statement of law in a judgment is binding; only those statement that based upon the
facts and upon which the decision is based are binding. Any other statement of law is
superfluous and is described as obiter dictum (it means ‘by the way’). It should not, however be
concluded from this that obiter dicta are of little or no weight or importance.

Important Supreme Court Cases

1. Krishena Kumar & another v. Union of India & Others[1] - The ratio decidendi has to be
ascertained by an analysis of the facts of the case and the process of reasoning involving the
major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a
minor premise consisting of the material facts of the case under immediate consideration. If it is
not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it.

Therefore, we find that it is the ratio decidendi which is a binding precedent. The other material
part of a judgment is the Obiter Dictum. However, in the present article we are not concerned
with it.

2. State of Orissa v. Sudhanshu Shekhar Mishra[2] - A decision is only an authority for what it
actually decides. What is of the essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations made in it.

3. Dalveer Singh v. State of Punjab[3] - Even where the direct facts of an earlier case appear to
be identical to those of the case before the Court, the Judge is not bound to draw the same
inference as drawn in the earlier case.

4. Fazlunbi v. K. Khader Vali & Another[4] - Precedents of the Supreme Court are not to be
left on the shelves. Neither could they be brushed aside saying that precedents is an authority
only “on its actual facts”. Such devices are not permissible for the High Court when decisions
of the Supreme Court are cited before them not merely because of the jurisprudence of
precedents, but because of the imperatives of Article 141.
5. A.R. Antulay v. R.S. Nayak & Another[5] - Per incuriam are those decisions given in
ignorance or forgetfulness of some inconsistent statutory provision or some authority binding on
the Court concerned so that in such cases some part of the decision or some step in the reasoning
on which it is based is found, on that account to be demonstrably wrong. If a decision is given
per incuriam, the Court can ignore it.

6. Arnit Das v. State of Bihar[6] - A decision not expressed, not accompanied by reasons and
not proceeding on conscious consideration of an issue cannot be deemed to be a law declared to
have a binding effect as is contemplated by Article 141. That which has escaped in the judgment
is not ratio decidendi in the technical sense when a particular point of law was not consciously
determined (this is the rule of sub-silentio).
Three tests to determine Ratio decidendi
In the present article, we will discuss the three famous tests used by the courts to ascertain ratio
decidendi.

1. Wambaugh’ Test
2. Halsbury’s Test
3. Goodhart’s Test

Wambaugh’s Test

The Inversion Test propounded by Wambaugh is based on the assumption that the ratio
decidendi is a general rule without which a case must have been decided otherwise. Inversion
Test is in form of a dialogue between him and his student. He gave following instructions for
this[1]:

1. Frame carefully the supposed proposition of law.

2. Insert in the proposition a word reversing its meaning.

3. Inquire whether, if the court had conceived this new proposition to be good and had had it in
mind, the decision could have been the same.

4. If the answer is affirmative, then, however excellent the Original Proposition may be, the
case is not a precedent for that proposition.

5. But if the answer be negative, the case is a precedent for the Original Proposition and possibly
for other propositions also.

Thus, when a case turns only on one point the proposition or doctrine of the case, the reason for
the decision, the ratio decidendi, must be a general rule without which the case must have been
decided otherwise[2]. A proposition of law which is not ratio decidendi under the above test
must, according to Wambaugh, constitute a mere dictum.
However, Rupert Cross criticized the Inversion Test on the ground that "the exhortation to frame
carefully the supposed proposition of law and the restriction of the test to cases turning on only
one point rob it of most of its value as a means of determining what was the ratio decidendi of a
case, although it has its uses as a means of ascertaining what was not ratio".

Thus, the merit of Wambaugh’s test is that it provides what may be an infallible means of
ascertaining what is not ratio decidendi. It accords with the generally accepted view that a ruling
can only be treated as ratio if it supports the ultimate order of the court[3].

Halsbury’s Test

The concept of precedent has attained important role in administration of justice in the modern
times. The case before the Court should be decided in accordance with law and the doctrines.
The mind of the Court should be clearly reflecting on the material in issue with regard to the
facts of the case. The reason and spirit of case make law and not the letter of a particular
precedent[4].

Lord Halsbury explained the word “ratio decidendi” as “it may be laid down as a general rule
that that part alone of a decision by a Court of Law is binding upon Courts of coordinate
jurisdiction and inferior Courts which consists of the enunciation of the reason or principle upon
which the question before the Court has really been determined. This underlying principle which
forms the only authoritative element of a precedent is often termed the ratio decidendi”.

In the famous case of Quinn v. Leathem[5], Lord Halsbury said that:

“Now, before discussing the case of Allen v. Flood[6] and what was decided therein, there are
two observations of a general character which I wish to make, and one is to repeat what I have
very often said before, that every judgment must be read as applicable to the particular facts
proved, or assumed to be proved, since the generality of the expressions which may be found
there are not intended to be expositions of the whole law, but governed and qualified by the
particular facts of the case in which such expressions are to be found. The other is that a case is
only an authority for what it actually decides. I entirely deny that it can be quoted for a
proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the
law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not
always logical at all.”

Thus, according to Lord Halsbury, it is by the choice of material facts that the Court create law.

Goodhart’s Test

In 1929, Goodhart had argued that the ratio of a case must be found in the reasons for the
decision and that there is no necessary connection between the ratio and the reasons. He laid
down following guidelines for discovering the ratio decidendi of a case[7]:

1. Ratio decidendi must not be sought in the reasons on which the judge has based his decision.

2. The reasons given by the judge in his opinion are of peculiar importance, for they may furnish
us with a guide for determining which facts he considered material and which immaterial.

3. A decision for which no reasons are given does not necessarily lack a ratio; furthermore, the
reasons offered by a court in reaching a decision might be considered inadequate or incorrect, yet
the court’s ruling might be endorsed in later cases – a ‘bad reason may often make good law’.

4. Thus, ratio decidendi is whatever facts the judge has determined to be the material facts of the
case, plus the judge’s decision as based on those facts. It is by his choice of the material facts
that the judge creates law.

If we accept Goodhart’s conception of ratio decidendi, we could explain why hypothetical

instances are unlikely to be accorded the same weight as judicial precedents as hypothetical
instances are by definition obiter dicta[8]. Also, this conception of ratio decidendi links the
doctrine of precedent with the principle that like cases be treated alike. Any court which
considers itself bound by precedent would come to the same conclusion as was reached in a prior
case unless there is in the case some further fact which it is prepared to treat as material, or
unless fact considered material in the previous case is absent[9]

Obiter Dicta

There are two types of obiter dicta.

1. A statement of law is regarded as obiter if it is based upon facts that either were not found to
be material or were not found to exist at all.
2. Even where a statement of law is based on the facts as found, it will be regarded as obiter if it
does not form the basis of the decision. A statement of law made in support of a dissenting
judgment is an obvious example.

Although obiter dicta lack binding authority, they may nevertheless have a strong persuasive
influence[7].

Custom as a Source of Law

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’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by the
courts and applied as a source of law because they are generally followed by the political society
as a whole or by some part of it”.

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.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law
which got its content from habits of popular action recognized by courts, or from habits of
judicial decision, or from traditional modes of juristic thinking, was merely an expression of
the jural ideas of the people, of a people’s conviction of right – of its ideas of right and of
rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as source
of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human
association becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity
2. Continuous in nature.
3. Peaceful Enjoyment
4. Obligatory Force
5. Certainty
6. Consistency
7. Reasonableness