You are on page 1of 25

Chanakya National law University

Law is a system of rules, usually enforced through a set of institutions. It shapes politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and obligations related to the transfer and title of personal (often referred to as chattel) and real property. Trust law applies to assets held for investment and financial security, while tort law allows claims for compensation if a person's rights or property are harmed. If the harm is criminalized in a statute, criminal law offers means by which the state can prosecute the perpetrator. Constitutional law provides a framework for the creation of law, the protection of human rights and the election of political representatives. Administrative law is used to review the decisions of government agencies, while international law governs affairs between Sovereign States in activities ranging from trade to environmental regulation or military action. Writing in 350 BC, the Greek philosopher Aristotle declared, "The rule of law is better than the rule of any individual." Legal systems elaborate rights and responsibilities in a variety of ways. A general distinction can be made between civil law jurisdictions, which codify their laws, and common law systems, where judge made law is not consolidated. In some countries, religion informs the law. Law provides a rich source of scholarly inquiry, into legal history, philosophy, economic analysis or sociology. Law also raises important and complex issues concerning equality, fairness and justice. "In its majestic equality", said the author Anatole France in 1894, "the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread." In a typical democracy, the central institutions for interpreting and creating law are the three main branches of government, namely an impartial judiciary, a democratic legislature, and an accountable executive. To implement and enforce the law and provide services to the public, a government's bureaucracy, the military and police are vital. While all these organs of the state are creatures created and bound by law, an independent legal profession and a vibrant civil society inform and support their progress. A law


Chanakya National law University

The word `law` is a general term and over a period of time attained different connotations to signify varied purposes. Persons carrying different vocations prefer to identify `law` as to the purpose the prescribed set of rules are intended to achieve: A Citizen may think of law as a set of rules, which he must obey. A Lawyer who `practices law` may think of law as a vocation. A Legislator may look at law something created by him. A Judge thinks of law as a guide and principles to be applied to making decisions. A Social Scientist may think of law as a means of social control. A Legal Philosopher may consider law as `dictate of reason` or `right reasoning. It is often preceded by an adjective to give it a more precise meaning e.g. Commercial/ Mercantile law, Civil law, Criminal law, Industrial law, International law. In the legal sense with which we are concerned in our study of Commercial Laws, the definition of `law`

includes all the rules and principles which regulate our relations with other individuals and the State and which are enforced by the State . Clause 3 of Article 13 of the Constitution of India defines `law` as under `law` includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having the force of law; An amendment to an existing law is also law.


Chanakya National law University

`Law` in the context of the provisions of the Constitution of India may also be defined as It is an Act passed by the legislature and assented to by the President of India or Governor of a State. [Arts 111 and 200 of the Constitution of India]. The Constitution of India does not use the term 'Statute' but it uses the term 'law'. Statute has been defined as `the written will of the legislature'. Thus, Statute or law generally means the laws and regulations of every sort without considering the source from which they emanate. It is because of this the term `law` and `statute` are sometimes used interchangeably. `Ignorntia juris non excusat` is a familiar maxim. This means `ignorance of law is no excuse`. Although it is not possible for a layman to be aware of every branch lf law, yet he must acquaint himself with the general principals of the law of the country. This is why the knowledge of law is compulsory. The purpose of law is to maintain justice, continuity and uniformity and impartiality. Although origins of law in any society may be traced in antiquity, yet law is not static. As circumstances and conditions in a society change, laws are changed to fit the requirements of the society. The law can be classified into the following: PUBLIC LAW It is that law which determines and regulates the

organization and functioning of the State. It also determines the relation of the State with its subjects. The following laws form part of the public law: Constitutional law It is the basic and fundamental law of the land, which determines the nature of the State and the structure of the Government. It may be written (as in India, USA and most other

countries) or unwritten (as in England). Administrative law It is the law, which deals with the structure, functions and powers of the organs of the Government. Criminal law It deals with various offences, and has for its object their prevention by providing for and prescribing certain punishments for them.


Chanakya National law University

2. PRIVATE LAW - It is the law, which regulates relations of the citizens with one another, which are of public importance. In this sense, the State through its judicial organs adjudicates the matters in dispute between them. Private law comprises the following fields.1 Personal laws - It is a special law applicable to a class of people. Law of property It is law relating to transfer of (immovable) property. Law of obligations It is law relating to Contract; Quasi contract and Torts A source of law means the contents of law. The following are the sources of law: Custom Legislation Precedent

This project will deal with the above three sources of law in detail.

The Law Lexicon,


Chanakya National law University

Custom as a source of law

Introduction:In the early stages of the society the customs are most important, and in some cases, the sole source of law. But with the progress of the society they gradually diminish and legislation and judicial precedents become the main sources. In every legal system at all stages of legal development there are some customs but in advance societies they are more rationalized and are certain and definite. Custom, as a source of law, involves the study of a number of its aspects which we will study further. Meaning:Custom may refer to: Mores: Mores, in sociology, are any given society's particular norms, virtues or values. The word mores (English pronunciation: /mrez/ or /mriz/, from the Latin plural mrs; singular ms) is a plurale tantum term borrowed from Latin, which has been used in the English language since the 1890s. Tradition: Tradition includes a number of related ideas: Beliefs or customs taught by one generation to the next, often orally. For example, we can speak of the tradition of sending birth announcements, and family traditions at Christmas.


Chanakya National law University

Beliefs, customs and practices maintained by social interaction, such as saying "thank you", sending birth announcements, greeting cards, etc.

Beliefs, customs and practices maintained by societies and governments, such as Federal holidays in the United States. Beliefs, customs and practices maintained by religious denominations and church bodies that share history, customs, culture, and, to some extent, body of teachings. For example, one can speak of Islam's Sufi tradition or Christianity's Lutheran tradition.

Beliefs, customs and practices that are Prehistoric or have lost/arcane origins, such as trade, the teaching of language and education in general.

Traditions serve to preserve a wide range of culturally significant ideas, specific practices and the various methods used by distinct cultures. The word tradition comes from the Latin traditionem which is the accusative case of traditio which means "handing over, passing on". Convention: A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom. Certain types of rules or customs may become law and regulatory legislation may be introduced to formalize or enforce the convention (e.g., laws that define on which side of the road vehicles must be driven). In a social context, a convention may retain the character of an "unwritten" law of custom (e.g., the manner in which people greet each other, such as by shaking each other's hands). In physical sciences, numerical values (such as constants, quantities, or scales of measurement) are called conventional if they do not represent a measured property of nature, but originate in a convention, for


Chanakya National law University

example an average of many measurements, agreed between the scientists working with these values. Custom (law): Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Norms(sociology): Social norms are the behaviors and cues within a society or group. This sociological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit. Failure to follow the rules can result in severe punishments, including exclusion from the group."2 They have also been described as the "customary rules of behavior that coordinate our interactions with others." The social norms indicate the established and approved ways of doing things, of dress, of speech and of appearance. These vary and evolve not only through time but also vary from one age group to another and between social classes and social groups. What is deemed to be acceptable dress, speech or behavior in one social group may not be accepted in another. Deference to the social norms maintains one's acceptance and popularity within a particular group; ignoring the social norms risks one becoming unacceptable, unpopular or even an outcast from a group. Social norms tend to be tacitly established and maintained through body language and non-verbal communication between people in their normal social discourse. We soon come to know when and where it is appropriate to say certain things, to use certain words, to discuss certain topics or wear certain clothes, and when not to. Such knowledge about cultural norms is important for


Chanakya National law University

impression management, which is an individual's regulation of their nonverbal behavior. We also come to know through experience what types of people we can and cannot discuss certain topics with or wear certain types of dress around. Mostly this knowledge is derived experientially. Origin:Regarding the origin of customs there are different and divergent views. Historical jurists say that they originate from the common consciousness of people. Some say that they come into existence due to necessity. Any particular conduct imitated by a group of people for a long time becomes a custom. Maine, in his theory of legal evolution, says that in the beginning the judgments of the kings under divine inspiration were the basis of customs. Many say that customs were there in the society from the very primitive age. Position of custom in various legal systems:ROMAN LAW: We find the existence of customs in the ancient legal systems. In Roman Law, customs played a very important part before the Code. But after the promulgation of the Code Roman law was less sympathetic to customs. Later on, the influence of customs was recognized in the substantive as well as the procedural law. But it was assigned only a secondary position as compared to the legislation of the Imperial regime. The tests laid down by the Roman jurists for recognizing a custom as law were reasonableness and antiquity, but they did not fix any period which must elapse before a custom is to be recognized as law.3 HINDU LAW: Customs have been the most potent force in molding the ancient Hindu Law. The variances in the laws given in various smritis is said to be due to their incorporating local customs of places where they were written. Most of the laws

Singh, M.P., V.N Shklas Constitution of India, Eastern Book Company, Lucknow, 10 ed. Pp 35



Chanakya National law University

given in the smritis and commentaries had its origin in customs. The smritis have strongly recommended that the customs should be followed and recognized. The various commentaries which were written on the smritis interpreted them in the light of the local customs. Naturally they became very popular in the respective localities and thus the school of Hindu Law emerged. The recent legislation concerning Hindus has also saved customs at most of the places. ENGLISH LAW: Customs have played a very important role in molding the English Law. English Law is known as common law. Chief Justice Coke spoke about customs as one of the main triangles of the laws of England. But many do dont agree with this view as Salmond says, Common Law is essentially judge made law Classification:The customs in their wider sense may be divided into two classes: Custom without sanction These are those customs which are non-obligatory. They are observed due to pressure of the public opinion. Custom having sanction These 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:1. Legal Customs: These customs operate as a binding rule of law. They have been recognized by the courts and have become a part of the law of the land. They are enforced by the courts. These may be divided into two classes: a) General customs: These are those customs that prevail throughout the territory of the state. b) Local customs:


Chanakya National law University

By local customs is meant those customs which apply only to a defined locality only i.e. to a district or a town. 2. Conventional custom: These are those customs which govern the parties to an agreement. Parties, sometimes, expressly and sometimes impliedly agree to them. They are called usages also. Such customs are binding not due to any legal authority independently possessed by them, but because it has been expressly or incorporated in a contract between the parties to it. There are some conditions which must be satisfied before a court treats the conventional customs as incorporated in a contract (i) It must be shown that the convention is clearly established and it is fully known. It implies that both the parties were aware of such a convention. There is no fixed period for which a convention must have been observed before it is recognized as binding. (ii) Conventions cannot alter the general law of the land. Therefore they are valid only within the area of either observance. (iii) They must be reasonable. The main function of these conventions is to throw light only on such rights and liabilities of parties on which the contract is silent. If certain conditions, or term, those established by convention, are expressly excluded

10 | P a g e

Chanakya National law University

by the parties in the contract, they will not be enforced.

Essentials of a custom: Certain essentials have been laid down by the jurists which a custom must satisfy for its judicial recognition. The essentials are as follows: Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial. This is the rule of English law. Indian rule: In ancient Hindu law also, the antiquity was one of the essentials for the recognition of custom. Manu said Immemorial custom is transcendental law. The law in India at present is that antiquity is essential for the recognition of a custom, but there is no such fixed period for which it must have been existence as it is in the English law. Continuance: The second essential of a custom is that it must have been practiced continuously without any interruption. In England, the custom during the period from 1189 must have been enjoyed continuously without any interruption. If a custom has been disturbed for a considerable time, a presumption rises against it. Peaceable enjoyment: The custom must have been enjoyed peaceably. If a custom is in dispute for a long time in a law court, or otherwise, it negatives the presumption

11 | P a g e

Chanakya National law University

that it originated by consent as most of the customs naturally might have originated. Obligatory force: The custom must have an obligatory force. It must have been supported by the general public opinion and enjoyed as a matter of right. If a practice was maintained by stealth or by something of that sort, it cannot become a custom. Certainty: A custom which is vague or indefinite cannot be recognized. It is more a rule of evidence than anything else. The court must be satisfied by the rule that custom exists as a matter of fact, or as a legal presumption of fact. Consistency: Custom must not come into conflict with the other established customs. There must be consistency among the customs. It is therefore, that one custom cannot be set in opposition to the other custom. Reasonableness: A custom must be reasonable. The reasonableness will not be judged with every change in social conditions. Conformity with the statue law: A custom to be valid must be in conformity with the statue law. It is a positive rule in most of the legal systems that a statue can abrogate a custom.4

Dhyani, jurisprudence, pg. 78

12 | P a g e

Chanakya National law University


Introduction: There are legal systems where much of the development of law has been taken place through this creative role of the judges. The English legal system is an example of it. There, a great reliance is placed upon the decisions of the judges. Before deciding a case the judges look into the 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 them accordingly. This is known as inductive method of making a precedent. Meaning: In Oxford Dictionary, precedent is defined as, 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. In judicial field, it means the guidance or authority of past decisions for future cases. Only such decisions as lay down some new rule or principle are called judicial precedents. Res-judicata; Justinian declarationIn Roman law there was never any theory of binding precedents, though the orators have included Res-judicata among the sources of law, it was not precedent in the modern sense of the term. under the Roman system, much of the development of law to place by the bar and not by the bench however an attempt was always made for judicial infirmity, atleast in the procedural law due to the following of the previous instance. But this cant be regarded as the doctrine of precident.

It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority, which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of law. It is the reason or legal

13 | P a g e

Chanakya National law University

principle of the case, which is known as the ratio decidendi applied by the Doctrine of stare decisis, which forms the law for the future. A decision is not binding because of its conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case Bachan Singh v State of Punjab. In Krishena Kumar v Union of India, the Supreme Court has observed, The Ratio Decidendi is the underlying principle, namely, the general reasons or general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The Ratio Decidendi has to be ascertained by an analysis 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. Obiter dicta on the other hand are observances of the court in the judgments passed by it. Although it is of persuasive value, normally even an obiter dictum of the Supreme Court is expected to be obeyed and followed. Precedents may be classified into original and declaratory precedents. Original precedents are those that create and apply a new rule or law, while declaratory precedents are those that merely declare or apply the same preexisting legal principle on a similar case. Both original as well as declaratory precedents are equally important sources of law. Precedents may also be classified into authoritative and persuasive precedents according to its binding force on the lower courts. An authoritative precedent is one in which judges must follow it whether they approve of it or not. A Persuasive precedent is one in which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach as much weight as it seems to them to deserve. In India, Article 141 of the Indian Constitution says that Law declared by the Supreme Court is binding on all courts while the judgment of one High Court of a state has persuasive authority over another High Court. Precedents are binding

14 | P a g e

Chanakya National law University

only from a higher court to a lower one while persuasive authority exists only between collateral courts or courts of the same rank. One Division Bench decision is binding on another Division Bench of the same court. Judgment of earlier Division Bench of the High Court is binding in subsequent proceedings of the same case. Authoritative precedents may further be classified into absolute and conditional. Absolutely authoritative precedents are binding on lower courts irrespective of however erroneous it may be. Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special case its authority may lawfully be denied if the wrong and unsound nature of the law is proved.5 When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority, and becomes null and void and a new principle is authoritatively substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan. Where a precedent is merely not followed, the result is the two stand side by side conflicting with each other. Such a situation can be solved only when a higher authority formally overrules one of the laws and sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous decisions. It may overrule them either by expressly saying so, or impliedly by not following them in a subsequent case. Judgments are not scriptural absolutes but relative reasoning. The binding force of the precedent may be destroyed when it is overruled by a higher authority or if it is in opposition to a pre-existing statute or an earlier

B N M Trpathi, An introduction to jurisprudence, edn 5 2006, pg 190


15 | P a g e

Chanakya National law University

decision of a superior court. A number of decisions on Constitutional law have been abrogated by constitutional amendments such as the decisions in Golak Nath v State of Punjab. The binding force of the precedent may also be weakened if a particular point of law involved in the decision is not perceived by the court, which is known as precedents sub silentio and does not have any precedental value. The value of the doctrine of precedent has been much debated. Judges have been criticised on the grounds that precedents give them the power to transform from law-implementors to law-makers. However, it has also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law.cpp At a time of commercial development and constitutional jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents keeping in mind future developments. Standard of Justice is used in cases where there is no statutory provision for a particular case in which the judge has to depend on his own common sense or standard of justice or borrow the relevant legislations from other countries so that no injustice is done to any party concerned in the case. There are a number of judicial decisions where the courts, without any special authorization by the positive law to decide the unprovided case according to considerations of equity have granted relief to novel situations on grounds of natural justice and reason. In the areas of conflict of laws, general considerations of fairness and justice have played a particularly important part in developing this particular branch of law. Courts have also resorted to considerations of justice in interpreting vague and ambiguous clauses in constitutional and statutory documents. The notion of justice has been used rather extensively by the judiciary and as played a prominent role in the decision of controversies. It is particularly in situations where the scales are heavily weighed on one side and where a strong need for relief is apparent that the courts are willing to allow new claims or defences on grounds of essential justice and equity.

16 | P a g e

Chanakya National law University

Doctrine of `stare decisis` This doctrine means adherence to the earlier decision and not unsettling

things, which are already decided. This doctrine is based on expediency and public policy.

Why precedents are recognized The practice of following precedents is necessary to secure the certainty of

and predictability of decisions. This creates confidence in the minds of the litigants and the administration of justice becomes fair. Hierarchy of Courts The general rule of doctrine of precedent as regards hierarchy of Courts is

that each Court is absolutely bound by the decisions of the Courts superior to it. As regards higher Courts, they are, to a certain extent bound by their own decisions. Supreme Court This is the highest Court in India. Its decisions are

binding on all Courts within the territory of India (Article 141 of the Constitution). The decisions of the Full Bench are binding on the smaller

Benches of the Court. CASE EXAMPLE In Golaknath Vs. State AIR (1967) SC 1643, the Supreme Court by a 6-Judge Bench gave a decision that Fundamental Rights are not amendable. Six years later, the Supreme Court in Kesavananda Bharti Vs. State of Kerala (1973) SCC 225 by a 13-Judge Bench overruled the Golaknath Case.

High Courts the decisions of a High Court are binding on all the Courts Subordinate or District Courts These Courts are in districts. They are

below it, within its jurisdiction (District Courts/Court of Sessions).

bound to follow the decisions of the higher Courts. SOME IMPORTANT JUDICIAL DOCTRINES ratio decidendi (reasoning behind the decision) A decision of a Court can be seen from two aspects viz

17 | P a g e

Chanakya National law University

1. 2.

What does the case decide between the parties? and What principle or rule of law does it lay down? In delivering judgment the judge gives reasons for his decisions, and it is these

reasons which may be important as precedents in future cases. No two cases, which come before the courts, are exactly alike, and to discover whether there is a binding precedent it is necessary to establish the ratio decidendi, that is, the exact reason or reasons for the decision. obiter dictum (an incidental or collateral opinion by a judge) It means an incidental or collateral opinion which is uttered by a judge while

delivering a judgment and which is not binding. These are peripheral statements that may be found in the main decision but which do not deal with the central issue. Obiter dicta are not binding, but they may be treated as of "persuasive

authority" CASE EXAMPLE obiter dicta In D Cowasji & Co. Vs. State of Mysore (AIR 1975 813), the petitioner claimed refund of a huge amount of Excise duty paid by it several years after the duty was paid. The Court rejected the claim for refund pointing out that it would be unjust to require its refund after such lapse of time because the Government would have, spent the amount for governmental purposes. By this decision the dispute was settled. But the Court went a step further and added a sentence in judgement as obiter dicta that nor is there any provision under which the court could deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them or for any reason it is impracticable to do so. This observation of the Court contained an implication. Excise duty is collected by the manufacturer from a large number of customers and paid it to the Government. The manufacturer does not pay a pie from his pocket. If the duty

18 | P a g e

Chanakya National law University

paid by him is ordered to be refunded the beneficiary of refund would be the manufacturer because he may not be in a position to pay back the Excise duty collected by it to the customers. It would be impossible for the manufacturer to trace out the customers who were in thousands or perhaps lakhs. Though the manufacturer had claimed refund of that amount to himself no opportunity had been given by the Court to the Government to argue on the tenability of the claim. What obviously weighed with the judge in ordering the refund was the the dharma of the situation. He assumed that since the excess duty was paid by the manufacturer belonged to him. While in fact it did not belong to him. It only unjustly enriches him. This observation of the Supreme Court i.e. obiter dicta was noticed by many High Courts. Taking the view that since this expression of opinion was of the highest court of the land and should receive respect, they treated this as ratio and started giving refund orders to a number of manufacturers. In course of time the refund amounted to hundreds of crores of rupees. Later on, the legislature had to rectify the situation by bringing amendments to the stature.

19 | P a g e

Chanakya National law University

LEGISLATION as a source of law

Legislation has become the commonest source of new laws or of law reforms today. It is the source of law which consists in the declaration of acts legal rules enforceable by a competent authority. To legislate is to make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature does not confine its action to the making of rules, yet all its functions are included in the term legislation. Law that has its source in legislation may be most accurately termed a enacted law, all other forms being distinguished as unenacted. The more familiar term used is, however, statute law. Blackstone and other writers use written and unwritten law to distinguish between legislation and other sources of law. Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power. Such legislation is subordinate in that it can be repealed by, and must give way to, sovereign legislation. It may also be of a derivative nature, the power to legislate having been delegated by the sovereign to the subordinate. In Delegated legislation, power to bring an Act into operation; power to apply the Act; power to exempt from or extend the scope of the Act; powers to make rules, regulations and bye-laws; power to impose tax etc. Besides delegation, there is sub-delegation also. In sub-delegation, the agency to whom the power is delegated in the Act may further delegate it to another agency to perform the duty.

20 | P a g e

Chanakya National law University

Subordinate legislation may be delegated to the Executive. The essential function of the executive is to conduct the administrative departments of the state. But it combines with this certain subordinate legislative powers which have been expressly delegated by the Parliament. The statutes entrust to some executive department the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the matter. Certain delegated legislative powers are also possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. The Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the areas under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal. It is a law that is created by legislation Parliament or State Assembly. Legislation is that source of law, which consists in the declaration, or promulgation (transmission) of legal rules by an authority duly empowered by the Constitution in that behalf. It is some times called jus scriptum (written law). Some prefer to call it as `enacted law`. In modern times, `legislation` is the most important source of law in all the countries. Types of Legislation 1) Supreme Legislation A legislation is said to be supreme when it proceed from the supreme or sovereign power in the State Parliament or the State Legislature- and is incapable of being repealed, annulled or controlled by any other legislative authority. However - any law which takes away or abridges the Fundamental Rights conferred by Part III and any law made in contravention of this clause

21 | P a g e

Chanakya National law University

shall, to the extent of the contravention, be void [Article 13(2) of Constitution of India]. 2) Subordinate Legislation Legislation is said to be subordinate when it proceed from any authority other than the supreme or sovereign authority in the Sate. It is made under the powers delegated to it by the supreme authority. There are 5 forms of subordinate legislation: (i) Executive The rule making power under of the Statues is conferred on the executive (i.e. the branch of the government that executes the laws or runs the administration). (ii) Judicial The judiciary has powers to frame rules for the regulation of their procedures and administration. (iii)Municipal Municipal bodies are delegated powers by the Act, which brings them into existence to frame rules, and by-laws for the area under their jurisdiction for carrying on various activities entrusted to them. (iv) Autonomous The autonomous bodies, like Universities, are given power by the State to make rules and by-laws for their administration. (v) Colonial The laws of the countries which are not independent or which are the control of some other State, are subject to the supreme legislation of the State under who control they are. IV. PERSONAL LAW Sources of Hindu law (a) the `Shruti` (what is heard). This includes the four Vedas (Rig Veda, Yajur Veda, Sama Veda and Atharva Veda);

22 | P a g e

Chanakya National law University

(b) the `Smriti` (what is remembered ). The main three smritis are: the codes of Manu, Yajnanavalkya and Narada. The Statutes codifying the Hindu law enacted post independence era include (a) The Hindu Marriage Act 1955 (b) The Hindu Succession Act 1956 (c) The Hindu Minority and Guardianship Act 1956 and (d) The Hindu Adoptions and Maintenance Act 1956. Sources of Mohammedan Law (a) The Koran (voice of God; paramount authority) (b) The Hadis (actions and sayings of the Prophet) (c ) ijma (opinions of companions of Prophets) (d) Qaiiyas (reasoning by analogy) (e) Digests and commentaries on Mohammedan Law (compiled by command of Aurangzeb, the Mughal Emperor). The Statutes enacted post independence include (a) the Wakf Act 1954 (b) The Muslim Women (Protection of Rights on Divorce) Act 1986. (B) SECONDARY SOURCES OF INDIAN LAW (1) JUSTICE, EQUITY AND GOOD CONSCIENCE In the absence of any rule of specific law, usage or custom or personal law on a particular point arising before the Courts, the Courts apply the doctrine of justice, equity and good conscience which means in substance and in circumstances the rule of English law as applicable to Indian society and circumstances.

23 | P a g e

Chanakya National law University

It is difficult to define law, but it is easy to define about law. Sources of law are an important facet to law as it helps in giving a definition to law. If a study is made of the legal systems in the world in modern times, it would be found that most of the law is made by legislation. In some countries, especially in Common Law countries, the decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a very important parting the framing of laws, and the rights and liabilities of individuals are determined on the basis of customs, especially upon matters on which there are no pre-existent legislation, and no precedent to cover the matter. Sometimes customs are abrogated by the legislation, and at other times are confirmed by their decisions. The judges, in passing their judgment, take help from numerous other sources of law to, juristic or authoritative writings, foreign decisions (Standard of Justice), moral considerations and public opinion. The law generally comes from these sources. Sources of law are the tools, methods an techniques that are availed by the legal system in order to carry out its social goals and objectives, which is to provide justice to the people, most effectively and adequately. Sources of law concerns itself with the methodology, modes of reasoning and the interpretation of law, and not with the problems, principles and rules of specified law. Therefore, it is proved that there are primarily three sources of law which are custom, precedent and legistlaton. Custom is something that has been followed a particular community for a long period. Precedents are the judge made laws. In the present society judges not only interpret laws and give judgments but they also make laws and apply laws that are necessary and they follow those laws in the future cases. Legislation are the rules and regulations made or enacted by the parliament of the country or the state or the sovereign. All these laws are binding on the citizens of a country.

24 | P a g e

Chanakya National law University

Books:Paranjape, N.V, Jurisprudence on Legal Theory, Edn. 5th, Central Law Agency, Allahabad, 2010. Dhayani,S.N, Jurisprudence and Indian Legal Theory, Edn. 4th, Central Law Agency, Allahabad, 2006. Tripathi,B.N.M, An Introduction to Jurisprudence, Edn. 18th, Central Law Agency, Allahabad, 2008. Sites:

25 | P a g e