KINNAIRD COLLEGE FOR WOMEN AND UNIVERSITY

LEGAL RESEARCH AND WRITING

Pre-Mid Assignment:
Briefly Explain the Primary and Secondary Sources of law. While explaining the
case laws / precedents as a source, briefly elucidate the concepts of ratio
decidendi and obiter dicta.
Submitted by: Sijal Zafar
Submitted to: Sir Mohsin Mumtaz
Major: B.A-L.L.B (hons)
Semester: 6
Section: A
Registration No: F18BLAW002
Date: 19th February, 2021

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INTRODUCTION:
Law: The law and the legal system are important in any civilization. In modern times, nobody
can imagine a society without law and a legal system. For a common man, law are often
described as “a system of rules and regulations which a country or society recognizes as binding
on its citizens, which the authorities may enforce, and violation of which attracts punishment”.
Sources of Law: The term “sources” in its broadest sense mean it can be anything which
accounts for the existence of a legal rule from the casual point of view or to any place in which
the law is stated. But according to technical legal sense a sources of law can be simply defined
as where we will find law or where rules derives its validity as a rule of law.

CLASSIFICATION OF SOURCES:
Sources can be classified as:
Material Sources: The material sources of law are those from which is derived the matter,
though not the validity of the law. Material sources are classified as:
 Historical Sources: Historical sources are sources where rules, subsequently changed
into legal principles, were first to be found in an unauthoritative form. These aren’t
allowed by the law courts as of right.
 Legal Sources: Legal sources are those sources which are the instruments or organs of
the State by which legal rules are created. Legal resources are categorized as:
 Primary sources
 Secondary sources

PRIMARY SOURCES:
Primary legal sources of law in are the texts of enactments by governments containing rules
that govern a jurisdiction of state. Primary sources of law are:
1. Legislation.
2. Precedent / Case laws.
3. Customs.
Now let’s analyze them one by one.

LEGISLATION:
The term 'legislation' come from two Latin words which means to make or set laws. According
to Salmond: “Legislation is that source of law which consists within the declaration of legal
rules by a competent authority” and these principles constitutes as legal ground for the
recognition as law by the tribunals of the state in future.
According to Salmond, legislation is categorized as supreme or delegated legislation.

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Supreme legislation: When the laws are directly enacted by the sovereign authority, it is
considered as supreme legislation. The basic feature of Supreme legislation is that no other
authority except the sovereign itself can control or check it. The law enacted by the Parliament
also falls in this category. However powers of the Parliament are regulated and controlled by
the Constitution, through the laws enacted by it are not under the control of any other
legislative body. Reference to articles of constitution of Pakistan, 1973, such as:

 As per article 141: parliament has power to make laws for any part of the country and
provincial assembly has power to make laws for provinces.
 As per article 142: law making power of parliament is superior and if there is any matter
which is not in legislative list then on that matter parliament has the power to legislate.
 As per article 143: if there’s conflict between federal law and provincial law federal law
are going to be given priority.
 As per article 144: if the federal legislature don’t have power to make law on any matter
then provincial assembly by passing resolution gave federal legislature the power to
make law on that matter.
Delegated legislation: Delegated legislation is law made by an executive authority under
powers given to them by primary legislation in order to implement and administer the
requirements of that primary legislation. Laws are supposed to be enacted by the sovereign
authority or it may be distributed among the various organs of the State. The three organs of
the State namely legislature, executive and judiciary have three different functions. The
responsibility of law-making vests with the legislature, while the executive is vested with the
responsibility to implement the laws enacted by the legislature. With the passage of time, the
amount of legislation has increased manifold and it’s impracticable for legislative bodies to go
through all the details of law, therefore wide discretion has been given to the executive to fill
the loopholes.
JUDICIAL PRECEDENT AS A SOURCE OF LAW
In simple words, judicial precedent refers to previously decided judgments of the superior
courts, like the High Courts and the Supreme Court, which judges are bound to follow. This
binding character of the previously decided cases is important, considering the hierarchy of the
courts established by the legal systems of a particular country. Reference to the articles of
Pakistan constitution 1973.

 As per Article 189: Any decision of the Supreme Court shall, to the extent that it decides
a question of law or is based upon or enunciates a principle of law, be binding on all
other courts in Pakistan.
 As per Article 201: Subject to Article 189, any decision of a High Court shall, to the
extent that it decides a question of law or is based upon or enunciates a principle of
law, be binding on all courts subordinate to it.

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Judicial decisions can be divided into following two parts:
1) Ratio decidendi: 'Ratio decidendi' refers to the binding part of a judgment. 'Ratio
decidendi' literally means reasons for the decision. It is considered as the general
principle which is deduced by the courts from the facts of a specific case. It becomes
generally binding on the lower courts in future cases involving similar questions of law.
2) Obiter dicta: An 'obiter dictum' refers to parts of judicial decisions which are general
observations of the judge and don’t have any binding authority. However, obiter of a
higher judiciary is given due consideration by lower courts and has persuasive value.
Having considered the various aspects of the precedent i.e. ratio and obiter, it is clear that the
system of precedent is based on the hierarchy of courts. Every legal system has its own distinct
features so, the doctrine of precedent is applied differently in different countries. In a recent
case reported as Shahid Pervaiz v Ejaz Ahmad and others 2017 SCMR 206, the Supreme Court
of Pakistan held as under:
“A fourteen Member Bench of this Court in the case of Justice Khurshid Anwar Bhinder v.
Federation of Pakistan (PLD 2010 SC 483), has concluded that where the Supreme Court
deliberately and with the intention of settling the law, pronounces upon a question of law, such
pronouncement is the law declared by the Supreme Court within the meaning of Article 189
and is binding on all the Courts of Pakistan. It cannot be treated as mere obiter dictum. Even
obiter dictum of the Supreme Court, due to high place which the Court holds in the hierarchy in
the country enjoy a highly respected position as if it contains a definite expression of the
Court’s view on a legal principle, or the meaning of law”. 1
CUSTOM AS A SOURCE OF LAW:
A custom to be valid must be observed continuously for a very long time without any
interruption. Further, a practice must be supported not only for a very long time, but it must
also be supported by the opinion of the general public and morality. However, every custom
need not become law. Custom can simply be explained as those long established practices or
unwritten rules which have acquired binding or obligatory character.

SECONDARY SOURCES:
Secondary sources are used to help locate primary sources of law, define legal words and
phrases, or help in legal research. In short, anything that is more than the actual law is
considered a secondary source. Secondary Law consists of sources that explain, criticize,
discuss, or help locate primary law. Secondary sources are important because they may reflect
the prevailing view on how courts interpret primary sources. Some secondary sources are so
authoritative that courts themselves rely on them in their rulings.
Examples of secondary legal sources include:

1
https://cite.pakcaselaw.com/PLD-SUPREME-COURT/2010/483/

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  Legal periodicals: Legal periodical articles are in-depth discussions of narrow areas of
the law and legal issues. Periodical articles can be very good law finders; they tend to
have a great many footnotes with a lot of legal citations. Some articles by eminent
scholars can be persuasive.
 Legal encyclopedias: Legal encyclopedias are immense sets of books that briefly
describe all of the main legal issues for a particular jurisdiction. An encyclopedia can
provide a basic introduction to an area of law and will provide the user with some case
and statutory citations. Legal encyclopedias are available online and in print.
 American Law Reports: ALR provides topical annotations that focus on relatively narrow
areas of the law, but discuss it in some depth. They provide a good basic grounding in
law, as well as serve as good case finding tools.
 Law Reviews: Law review or journal articles are another great secondary source for
legal research, valuable for the depth in which they analyze and critique legal topics, as
well as their extensive references to other sources, including primary sources. They
contain both lengthy articles and shorter essays by professors and lawyers, as well as
comments, notes, or developments in the law written by students.
 Legal Dictionaries: Legal dictionaries give definitions of words related to law. The words
are arranged alphabetically. One common legal dictionary is Black’s Law Dictionary.
 Treatises: Treatises (e.g., hornbooks and class texts) are a rich source of legal
information on a wide variety of topics. They are often written by highly respected
authors.
One important set of books is called restatements. Restatements provide summaries of
rules of law on such topics as conflicts of law, contracts, foreign relations, judgments,
property, torts, and trusts. These rules are followed by comments, illustrations, and
appendix volumes.

Conclusion:
Thus to conclude, primary and secondary sources are the main instruments for any legal
research. And Primary sources of law are legislative, case law. They come from official bodies.
They include treaties, decisions of courts and tribunals, statutes, regulations. Whereas
Secondary sources of law are background resources. They explain, interpret and analyze. They
include encyclopedias, law reviews, treatises, restatements.

References:
 https://lawnotes.wordpress.com/2015/10/23/the-source-of-law-in-jurisprudence/
 https://zallp.com/lectures/jurisprudence/concept/#:~:text=Means%20the%20origins
%20of%20law,descends%20its%20enforcement%20or%20authority
 https://library.law.yale.edu/secondary-sources
 https://legal.thomsonreuters.com/en/insights/articles/the-basics-of-secondary-sources-
what-why-how

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