NAME: TOOBA ASIF

REGISTRATION # 06381813084
ASINGMENT: RIGHTS/CUSTOMS/LEGISLATION/PRECEDENT
SUBMITTED TO: MISS SARA ZIKRIYA
LL.B/ 4TH
SECTION: B
QUESTION: Try to explain the following type of legal rights in RE-PROPRIA and in
ALIENA.
RIGHTS:
“A right may be defined as a man’s ability to make an impact on others to act in a particular
manner, not through his own powers but by the power or impact of majority opinion of
society or by law”.
As a noun, the word “right” is used in almost five senses;
1. Frequently it is used in the sense of “INTREST”. A subjectively perceived relation derived
from necessity, between the person feeling the necessity and as object; the object for
which the necessity exist and is felt and through which, by use or consumption actually
or probably, it will or may be satisfied in whole or in one part. It may mean the interest
which one may think should be recognized and secured by law, or an interest as
recognized or delimited for the purpose of securing it through the legal order.
2. The term “RIGHT” is used to designate the chief means which the law adopts in order to
secure interest, namely, a recognition in person, or a conferring upon person, of certain
capacities of influencing the actions of others. It is possible to define each conception in
terms of “claim”. The general claim or demand in the first use of word “right” has now
become a recognized claim to acts or forbearances by another or by all others, in order
to make interest effective.
3. Another sense of “right” is a capacity of creating, divesting or altering “rights” in the
second sense, creating or altering duties. Rights or power in this sense, are legal
institutions devised to give effect to “rights”. In order to secure certain individual
interests, law confers directly or recognizes, as the case may be, certain capacities of
altering the existing legal situation. For example: powers conferred by law directly are
the ius disponendi of an owner, the power of making a will, the power to make a
contract and substitute a duty of paying damages for the pre-existing duties of
performing the promise etc.
4. Another term use for “right” to signify a condition of legal immunity from liability for
what otherwise a breach of duty. Sometimes as in case of self-defense, there may be
absence of legal restrictions upon exercise of one’s natural powers _ a negative
conception for which the English books have used the word “liberty” but it’s a negative
way of looking at a positive facultas agendi, which as a matter of may be exercised as
ones personality as the law may limit it in order to secure some other interest. Privileges
may be conferred directly by the law because of some social or public interest which
may be maintained by exemption by certain persons or certain classes of acts or acts on
certain occasion from the operations of general rules of law.
5. Rights is also used in pure ethical sense of that which is just, so that, even in legal
speech, we in fact not frequently say one has “A RIGHT” to this or that because without
 any definite claim we feel that on the balance of equities we should like to see him have
it.

LEGAL RIGHTS:
“Legal rights are the common claims of people which every cultured society recognizes as
essential claims for their development, and which are therefore enforced by the state”.

ORIGIN OF LEGAL RIGHTS:

Through the various interpretations and definitions of prominent philosophers we will
understand what is the legal right and from where it is originated.
In jurisprudence and the modern theory the mere right does not have a value unless it becomes
a legal right.
According to SALMOND: “an interest recognized and protected by a rule of legal justice”,
where every right has interest but all interests cannot be rights.  It is quite obvious that unless a
right is recognized by the state it would not have any validity or weight to be imposed upon
others. Various scholars defined ‘legal right’ as:
A party has a right when another or others are bound or obliged by law to do or forbear
towards or in regard of him”- Austin
“The authority to compel”- Kant.
“A physical power, which through the commands of authority not only is morally strengthened,
but also can protect this its power against a transgressor by the application of compulsion or
evil”-Kirchmann.
“Legal right is the capacity residing in one man of controlling, with the assent or assistance of
state, actions of others” – HOLLAND
“Rights are those conditions of social life without which no man can seek in general, to be
himself at his best”. – LASKI
“Right is the freedom allowed and power conferred by law”- POLLOCK
According to SALMOND, every legal right has five essentials:
1. The person who is the owner of the right or the person entitled.
2. The person against whom the right is there or the person who is to perform the act on
the wish of the person who has a right.
3. The content of right
4. Subject matter of right
 5. Certain facts or events by which the right has become vested in the owner.
Along with legal rights there exist moral rights as well, which in general have subjective support
while legal rights have the objective support of the State. Every right, whether moral or legal,
implies the carrying out of the wishes of the individual who holds the right, wherever such
carrying out of the wish is the “duty” owed to the individual.  Where it is merely expected by
the general public in the society, it is their ‘moral duty’. A right and duty are said to be
correlative to each other.
DUTY is defined as:
“The acts or forbearances which an organized society commands in order to protect legal
rights or the legal duties of the persons to whom those commands are directed” – Gray.
Whether the origin of the legal right is nature/morality or the state who legislate them? Legal
positivist such as Hart when viewing the concept of ‘right’ and ‘duty’ together comes to a
conclusion about their applicability without necessarily indicating anything about the moral
approval of the people. Some theorists argue that law cannot be said to be spoken of as
imposing duties unless it has some moral claim.
Historically when most of the world was under monarchy, theory of divine right was followed
where one divine Supreme Being was the source of the rights of individuals. Among other
philosophers John Locke considered rights as inalienable and naturally possessed by every man
by birth, in his opinion every man has three natural rights; right to life, right to liberty and right
to estate. According to Locke “governments are formed by people’s choice in their joint
capacity where such governments are formed only to protect rights in a systematic manner”.

According to Thomas Paine all individuals in practicing their personal rights formed a contract
with each other to form a government and the right of government to exist was the
consequence of such contract between individuals of society. Rights are based on the
principles of justice. In Thomas’s opinion statues made by the state doesn’t really give rights
but in contrary deprives citizens from certain rights because all citizens are born with rights,
governments through such statues control the behaviors of individuals by drawing perimeters
around those rights citizens possess by birth.

If we further analyze to see the criticism on natural law, we find Bentham to be among the
most well-known philosophers who called natural rights theory as “nonsense upon stilts”, his
opinion on the matter was that the rights are derived from law and the law itself is being
created by the State as their existence would necessarily require a government. He called
legal rights as real rights and called every such right to be directly dependent upon the very
existence of the government/state itself as if there was no State, no one will be there to
implement rights whether it be contractual rights, individual rights, public rights etc.
It is to a great extent agreed by philosophers that rights are derived from law and in order to
determine the origin of rights, one must find the origins of law. After collectively going through
some famous theories of natural and legal rights, this matter still seems debatable whether the
origin of law is “State” or “nature” but I believe legal right may be distinguished from a moral
or natural right due to the lack of enforceability mechanism unless recognized by the State.
An individual maybe punished under the state law for trespassing on a private property but as
for moral rights, deviating from them may only cause social sanctions. We have come to
understand that the legal rights are derived from law but whether law is derived from nature or
state is not conclusive. It all depends on your personal perspective on the subject as many
scholars have been in debate with opposing theories and strong arguments but one may not be
able to conclusively take sides on this debate. It still remains a subject open for discussion as
one thing tends to link to another in philosophy.

CHARACTERISTICS OF LEGAL RIGHTS:

1. Legal rights exists only in a society. These are the products of social living. They cannot
be exercised against the society.
2. They are to be exercised by the people for their development and hence for the
development of the society
3. They are recognized by the society as a common claim for all the people.
4. They are rational and moral claim that people make in their society.
5. They are equally available to all the people.
6. The concept and content of right keep on changing with the passage of time.
7. They are not absolute. These always bear limitations deemed essentials for maintaining
public health, security, morality, and order.
8. They should be utilize with duties.
9. They need enforcement and only these can be used by the people.
10. It is the duty of the state to protect the right of people.

Kinds of rights on the basis of objects:

1. RIGHT OVER MATERIL THING: it is a right to own a house, furniture, car, land etc.
2. RIGHT OVER INTANGIBLE PROPERTY: It is the right town patents, copyrights, goodwill,
trademarks etc.
3. RIGHT OF A PERSON: It is the right of not to be assaulted or right not to be falsely
imprisoned. Right not to be coerced or deceived.
 4. RIGHT TO HAVE DOMESTIC RELATIONS: it is the right to get married, parental rights,
Master’s right over servant.
5. RIGHT TO HAVE A REPUTATION: it is the right not to be defamed.
6. RIGHT TO RESPECT RIGTS OF OTHERS: if one individual has rights, then other individual
is also empowered with the same right

TYPES OF RIGHTS:
1. PERFECT AND IMPERFECT RIGHTS:
According to SALMOND, a perfect right id the one which corresponds to a perfect duty. A
perfect duty is one which is not merely recognized by law but also enforced by law.
For example: All fundamental rights i.e. rights to religion, right to equality etc. are perfect
rights.
A contract specifically enforceable through court of law is an example of perfect right.
IMPERFECT RIGHT:
IN a fully developed legal system, these are rights and duties which, though recognized by law,
are not of perfect nature. These may be turn into perfect rights.
For example: all the time bound claims or debts claim under category of imperfect rights.

2. POSITIVE AND NEGATIVE RIGHTS:

According to Salmond, “A positive right corresponds to a positive duty and entitles its owner to
have something done for him without the performance of which his enjoyment of the right is
imperfect and incomplete”.
NEGATIVE RIGHTS:
Negative rights have negative duties corresponding to them and enjoyment is complete unless
interference takes place.
The basis of distinguishing right as positive or negative is the nature of correlative duty it carries
with it.

3. REAL AND PERSONAL RIGHTS:

A real right or right in-rem correspond to a duty imposed upon persons in general. Real rights
are generally negative rights as the duties which can be expected from the whole world are of
negative character.
For example: I have the right to deprived of my life is a real right as it available against whole
world.

PERSONAL RIGHTS:
It corresponds to a duty imposed upon determinate individuals. A personal right is available
only against a particular person. Personal rights are generally positive rights as it imposes a duty
on a particular person to do something.
For example: I have a personal right to receive compensation for any individual who harms me.

4. RIGHTS IN REM AND RIGHTS IN PERSONAM:

Just in rem means a right against or in respect of a thing. A right in rem is against the whole
world.
For examples: rights of ownership and possession is protected by laws against all those who
may interfere with the same.

RIGHTS IN PERSONUM:
Fus in personum means a right against or in respect of a person. It is available against a
particular individual only.
For example: rights under contract are right in personum as the parties to the contract are
alone bound by it.

5. PROPRIETARY AND PERSONAL RIGHT:

The proprietary right is available to a property that it is related to a property and his assets. The
assets must have some monetary value.
For example: right to debt, the right to goodwill, the right to patent etc.
PERSONAL RIGHTS:
a personal right is related to person’s life i.e. his reputation or standing in a society. These rights
promotes a person’s well-being in society and have no economic value.
For example: Right to life, reputation etc.

6. INHERITABLE AND UNINHERITABLE RIGHTS:

A right is inheritable if it’s survive its owners. Proprietary rights are inheritable. It can be passed
from one generation to another.
For example: A son is a legal heir to his father’s property after his death.
UNINHERITBLE RIGHTS:
The right of inheritable dies with the death of his owner.
For example: all personal rights are uninheritable rights.

7. RIGHTS IN RE PROPRIA AND RE ALIENA:

A right in re propria has the right over one’s own property. These are complete rights to which
other rights can be attached. One can dispose of, destroy, modify or exclude others from his
property. This right gives a person absolute ownership over his property.
For example: my right of ownership of my land is right in re-propria.

RE ALIENA:
A right in re aliena or encumbrance is one whish limits or derogates from some more general
rights belonging to some other person in respect of the same subject matter. Rights in re aliena
are rights over the property of another person.
For example: my right of way across the land is another person’s right in re aliena.

8. PRINCIPAL AND ACCESSORY RIGHTS:

Principal rights exist independently of other rights. It is the basic or main right vested in persona
under law. They are vital and important rights.
For example: X owes money to Y and he executed a mortgage deed in favor of Y. the debt is the
principal right and the security in the form of mortgage is the accessory right.

ACCESSORY RIGHTS:
Accessory right is incidental or consequential right. They are not important but are apparent to
more basic general rights.
Other rights includes legal and equitable rights, primary and secondary rights, public and
private rights, vested and contingent rights.
REFRENCES: Legal rights on jstor
Kinds of legal rights-SRD LAW NOTES /origin of legal rights- legal jurisprudence.
QUESTION: WHAT IS CUSTOMARY LAW AND TRY TO EXPLAIN INSIGHTFULLY THE
REASON OF EXISTANCE OF CUSTOMARY LAW?
DEFINITION:
CUSTOM: Unwritten rules (uncodified) that are a traditional and widely accepted way of how
things should be done in a particular society or place; a long-established and generally
unwritten practice often recognized as having the force of law: Pursuant to Islamic practice,
once a wrong has been committed, a ritual forgiveness ceremony, a sulha may be performed.
CUSTOMARY LAW:
Accepted rules established by or based on the customs and practice in a society rather than
rules established by the parliament or courts.

The laws of war were a matter of customary law before they were codified.

For customs and traditions to become law, they must be:

• Known to the community,
• Followed by the community, and
• Enforceable (able to be carried out)

Codified customary law is often criticized for not being accurate because it:
• Confuses the real principles of unwritten customary law.
• Leaves out some of the principles and areas of unwritten customary law.
• Gives the impression that there is only one system of customary law.
Examples:
CODIFIED CUSTOMARY LAW
• The Black Administration Act of 1927

USE OF CUSTOMARY LAW:

Customary law is used by the ordinary courts . The Law of Evidence Amendment Act says that our
courts should use customary law if it is:
• Easily ascertainable (easy to find), and
• Reasonably certain – in other words, has established rules.
But the customary law is used by magistrates and judges, who rely on written customary law
and cannot find unwritten customary law unless they know it well. Also, the written customary
law doesn’t always give a complete picture of the rules of customary law. This means that
customary law is often not understood or used properly when it is needed in a situation.

USING CUSTOMARY LAW:

The Law of Evidence Amendment Act says that the use of customary law will depend on where
the dispute takes place.
People are free to choose which law to use if the dispute can be decided by both customary
and common law. If people cannot agree on which law to use, the courts can choose the law for
them. In doing this, the courts should consider:
• The type of crime or dispute
• Where it took place
• The law used in that area.
EXAMPLE: If the customary crime of elopement or seduction takes place in the area of a chief,
you can use customary law even if one of the people involved does not usually fall under
customary law.

EXISTANCE OF CUSTOMARY LAW:

Customary law is present throughout the world and in all legal systems as such it is manifest
not only in national minorities and tribal law. It is to be found in municipal and national law
and in court practices. It also forms the basis for a highly influential and universally binding
body of international law. At the local level it provides internal regulation for communities,
clubs, associations, groups of farmers, and other cooperative groups. Its influence is to be
found in many areas of law including contract, tort, family law, and private and public
international law. It plays a crucial role in defining land and resource rights and has increasing
relevance for areas of formal law such as the rules of evidence, equity and criminal law. It
plays a highly influential role in governing international commercial relations under the ley
merchants, which arose from the practice of merchants. Together with other informal and
non-state law it has the power to shape and influence the vast majority of human behavior.
Customary law is the law that has developed over the years in different communities. It
changes gradually over time as people change their ways of doing things. Customary law is
often not written down, because the people in the community know how things are usually
done in that community. Questions about customary law are usually decided by traditional
courts, chiefs, headmen or other traditional leaders. Parliament can change a customary law by
passing a statute that says something different.
Customary law is based on the traditions of the community concerned. Like common law, it has
developed over the centuries. But it is important to be cautious in relying on historical records
to determine what customary law is, because pre-independence accounts of customary law
often distorted its meaning. Customary law changes over time. Flexibility and the ability to
change over time is an important feature of customary law. Traditional authorities have the
right to make new customary law, and to amend and repeal existing customs. But customary
law must be considered in the community context. It is sometimes referred to as “living law”
because the current practices of a particular community must be considered in order to
understand the community’s customary law properly.
Across much of the globe, there has been increasing awareness of the significant role of
customary law in natural resource governance over the past two decades. Many authors
suggests that recognition of customary law may be significant for the sustainable use of
resources of our planet. Use of customary law may not always result in sustainability, as is also
the case with statutory law, but its study can provide influential insight into methods of
sustainability managing resources.
Particularly, in land and water allocation, and settling of dispute related to them, studies have
indicated that customary laws and institutions are the most influential and effective. This
influence may be partially due to acceptance by the community that is inherent in customary
law. The effectiveness may be explained by the fact that customary law, by its very own nature,
has evolved to suit the communities and the environment in which it operates. Despite the
growing awareness of the importance law, state recognition of customary law is still lacking in
many countries, and even where it is recognized there exists conflict between statutory regime
and customary laws. This may be partially explained by the fact that customary law may be
seen to be a challenge to a nation’s sovereignty.
Additionally, customary law has not historically be recognized by many scholars as a valid body
of law, thereby decreasing the chance of recognition by policy makers. By its very nature,
customary law gains its legitimacy from the acceptance of the people subject to it. Therefore, in
situations of conflict between customary law and statutes, traditional communities are likely to
view the customary law as having greater legitimacy and continue to use it. Communities may
also continue using customary law where the statutory law simply makes it impossible for them
to survive using their current knowledge and capacity. This may open them the risk of state
imposed penalty. It may also result in uncertainty of tenure and rights. On the other hand,
systems that effectively link customary institutions and rules with modern ones may improve
natural resource management and have additional social benefits.
Resources:
Customary law- translegal.com
Customary law-section27.org / Customs and constitution- iunc.
QUESTION: TRY TO EXPLAIN LEGISLATION AS A SOURCE OF LAW BY KEEPING IN VIEW THE
CERTAIN ANALYTICAL AND HISTORICAL APPROACH.

LAW: The principles and regulations established in a community by some authority and
applicable to its people, whether in the form of legislation or a custom and policies recognized
and enforced by judicial decisions.
SOURCES OF LAW:
1. Formal sources: The sources that are available in articulated textual form and are
present in the form of authoritative legal document.
For example: executive orders, judicial decisions, constitution, statutes etc.
2. Informal/material sources: the sources from which the law derives the matter or
substance of which it is composed are classified as material sources of law.
For example: social relations, religious views, geographical circumstances etc.
Material sources are further subdivided as:
1. Historical sources
2. Legal sources
Legal sources are further subdivided into:
1. Legislation
2. Custom
3. Precedent
4. Agreement

LEGISLATION: means the process of LAW MAKING. Legis means LAW and latum means Making.
It is a process of law making where a competent authority is given a task of drafting and
enacting the law in a state.
According to SALMOND: “legislation is that source of law which comprises in assertion of lawful
standards by a competent specialists”.
According to AUSTIN: “legislation is the command of sovereign or the superior authority which
must be followed by the common mases backed by sanctions”.
According to GRAY: “legislation implies the formal expression of administrative organs of the
general public”.
ANALYTICAL SCHOOL: A typical law is a statute and legislation is the normal source of law
making. The majority of exponent of this school did not approve that the courts can formulate
law. They do not admit the claim of custom as a source of law. They regard only legislation as a
source of law.
HISTORICAL SCHOOL: Legislation is the least creative of sources of law. The legislative purpose
of legislation is to give better form and more effective the custom which is spontaneously
developed by the people. They do not regard legislation as a source of law. To quote JAMES
CARTER “it is not possible to make law by legislative action. Its utmost power is to offer a
reward or threaten a punishment as a consequence of particular conduct and thus furnish an
additional motive to influence conduct. When such power is exerted to reinforce custom and
prevent violations of it, it may be effectual or rules or commands thus enacted are properly
called law; but if aimed against established customs they will be ineffectual. Law not only made
by directly human action, but cannot be abrogated or changed by such actions”.
According to this view, legislation has no independent creative role at all. It’s only custom
spontaneously developed by the people.

LAW MAKING BY LEGISLATION AND COURTS:

An important distinction between law making by legislature and law making by court must be
understood. When the legislature makes the law, it does not have any actual disputes before it
and it lays down general rules for the future, without reference to any actual dispute.
Courts, on the other hand, are engaged in the settlement of dispute and any law making they
may do is only with reference to actual dispute before them and only in so far as is necessary
for their solution. Thus we may say that judicial lawmaking is incidental to the solving of legal
disputes; while law making is the main function of legislature.
A legislation is more accurately termed as enacted law, all other forms being distinguished as
uneacted. However, jurisprudence includes only will of the legislature directed to making of the
rules of law.
Legislation or statutory law is the process of making the law which is “enacted” by a legislature
while the legislature id the body or chamber of people who make, amend or repel laws.
An item or piece of legislation is known as a bill before it becomes a law.
LEGISLATION AND JURISTS LAW: Legislation is sometimes, compared with jurists law or
the legal principles enunciated in jurists writings. There are number of points of distinction
between the two:
First, the legal principle laid down in juristic writing are of a very general and abstract nature
while in statutes they are concrete, precise and specific.
Second, the statute law possess a positive sanction from the sovereign authority of the state,
whereas, there is no such sanction behind the jurist aw.
Relationship between the two: the statute law is generally helped by the jurist law. Sometimes,
the latter ushers the former and the legal principles enunciated by jurists are embodied in the
statutory law.

PURPOSE OF LEGISLATION: legislation can have many purposes like to regulate, to

authorize, to prescribe, to provide, to sanction, to grant, to declare or to repel and restrict.

CLASSIFICATION OF LEGISLATION:
Legislation may be broadly classified as SUPREME AND SUBORDINATE LEGISLATION:
SUPREME LEGISLATION:
The supreme legislation is by the sovereign power of the state. Therefore, any other authority
within the state cannot check or control it. It is considered not only supreme but legally
omnipotent. There is no legal limitation on its power.
SUBORDINATE LEGISLATION:
Subordinate legislation is by any other authority than the supreme authority in the state. It is
made under the power delegated under the supreme authority. Such legislation owes its
existence, validity and continuance to the supreme authority. It can be replaced and must give
way to sovereign legislation. Subordinate legislation is subject to parliamentary control.
There are five different forms of subordinate legislation:
1. COLONIAL LEGISLATION
2. EXECUTIVE LEGISLATION
3. JUDICIAL LEGISLATION
4. MUNICIPAL LEGISLATION
5. AUTONOMOUS LEGISLATION.
DELEGATED LEGISLATION: it is a kind of subordinate legislation. Generally, it means the laws
made by executive under the power delegated to it by supreme legislative authority. The
committee on minister’s power said that the term delegated legislation has two meanings:
Firstly, it means the exercise of power that is delegated to executive to make rules.
Secondly, it means the output or the rules or regulations made under the power so given.

ADVANTAGES OF LEGISLATION AS A SOURCE OF LAW:

Some main advantages of legislation are as follows:
1. Abrogative power: it can change or annul old law, which isn’t controlled by different
sources.
2. Effectiveness: it separates the elements of making law and overseeing it between the
legislature and legal executive.
3. Declaration: it gives that principle of law will be known before they are authorized.
4. Reliance on accidental legislation: legislation is independent and emerges out as the
authoritative source of law it need not hold up until original case of legislation.
5. Unrivalled in form: it is pre dominant in structure, brief, clear, effectively available and
understandable as against case laws.

CONCLUSION:
Legislation is regarded as the most important source of law in prevalent times. It is considered
to be the codified form of law which is commanded by the sovereign to the common masses
and it becomes a predicament situation to regard legislation as an authoritative source of law.
Although some lacunae and loopholes are there which exists in present form but then too the
difficulties such faced from the other sources of law such as custom and precedent, as
legislation as a source of law tries to bring uniformity by avoiding the ambiguity.
REFRENCES:
Legislation as a source of law in jurisprudence google.com

QUESTION: EXPLAIN THE CONCEPT OF STARE DECISIS AND TRY TO ANSWER THEQUESTION
THAT DO JUDGES MAKE LAW? WHEN THE PRECEDENT IS CONSIDERED CERTAIN, COMPLETE
AND REASONABLE?

Precedent: PRECEDENT IS A LEGAL PRINCIPLE OR RULE THAT IS CREATED BY A COURT

DECISION. This decision becomes an example, or authority for judges deciding similar issues
later.
Common law and equity as found in English and American legal systems, rely strongly on the
body of established precedents, although in the original development of equity the court
theoretically had the freedom from precedent.
In the common law system it is the doctrine of ‘Precedent’ which courts depend upon, more
than any other legal doctrine, while arriving at their decisions. The elements that constitute the
doctrine of precedent are numerous and complex. Despite its considerable importance in
Pakistani legal system, the operation of this doctrine has so far drawn little academic attention.

STARE DECISIS: it is a Latin term means “let the decision stand”. It is a doctrine used in all
court cases and with all legal issues.
A doctrine is simply a principle, or an instruction, but it’s not necessarily a rule that cannot
ever be broken. The doctrine of stare decisis means that courts looks to the past similar
issues to guide their decisions.
Stare decisis is a doctrine that obligates courts to look to precedent when making their
decisions.

CITING PRECEDENT: stare decisis is essentially ‘the rule of precedent’. Courts cite precedent
when a court has already considered a particular legal issue and the court has already issued a
ruling.

The principle of stare decisis is was not always applied with uniform strictness. In medieval
England, common law courts looked to earlier cases for guidance, but they could reject those
which they considered bad law. For stare decisis to be effective, each jurisdiction must have
one highest court to declare what the law is in precedent setting case. The principle of stare
decisis has always been tempered with a conviction that prior decisions must comport with
notion of good reasons or they can be overruled by the highest court in jurisdiction.
According to FRED SCHAUER “an argument from precedent seem at first to look backward. The
traditional perspective on precedent has therefore focused on the use of yesterday’s precedent
in today’s decision. But in an equally if not more important way, an argument from precedent
looks forward as well, asking us to view today’s decision as a precedent for tomorrows decision
makers. Today is not only yesterday’s tomorrow; it is also tomorrow’s yesterday”.

LAW OF BINDING PRECEDENTS:

In view of the hierarchical character of the judicial system in Pakistan, it is of paramount
importance that the law declared by courts should be certain, clear and consistent.
Inconsistencies create distrust in the administration of justice. It is an established fact that most
decisions of the courts are of significance, not merely because they constitute adjudication over
the rights of parties and resolve disputes between them, but a fortiori in doing so they embody
a declaration of law, operating as a binding principle (stare decisis) in future cases. In this latter
aspect lies their particular value in developing the jurisprudence of law.
In the Constitution of Pakistan, the doctrine of stare decisis is reflected in Article 189 and 201,
which read as under:
“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.”
“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.“
Judgments of the Federal Shariat Court, a Service Tribunal, the Income Tax Appellate Tribunal
and the National Industrial Relations Commission have the force of precedent which can be
inferred from the Explanation to section 5 of the Law Reports Act 1875 which reads as follows:
Explanation:
“For the purpose of this Act the expression, Court or Tribunal includes the Federal Shariat
Court, a Service Tribunal, the Income Tax Appellate Tribunal and the National Industrial
Relations Commission.”
As evident from the above, the doctrine of stare decisis has constitutional and statutory
command and thus needs to be implemented in letter and spirit. Any violation of this rule will
amount to a violation of the Constitution and the law of the land.
 In the Panama Case (Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif & 9
Others PLD 2017 SC 265, Imran Ahmad Khan Niazi v Mian Muhammad Nawaz Sharif & 9
Others PLD 2017 SC 692 and order in CRP 297 to 299 of 2017, CRP 303 of 2017, 308 to 3012 of
2017) and on constitutional petitions against Imran Khan and Jahangir Khan Tareen.
 In case of an allegation of corruption, the matter in the case of Nawaz Sharif and family has
rightly been referred to the National Accountability Bureau (NAB). The argument that elected
members could not be disqualified under Article 62(1) (f) of the Constitution without recording
evidence, in a proceeding under Article 184(3) of the Constitution, is against the settled
principle (stare decisis). Our Supreme Court in the case of Syed Mahmood Akhtar Naqvi v.
Federation of Pakistan (2012 PLD SC 1089) while exercising jurisdiction under Article 184(3) of
the Constitution, disqualified a person for making a false declaration on solemn affirmation in
his nomination papers. Therefore, under the law of binding precedent, this will be applicable
wherever there is any false declaration on oath by any public officeholder.
Elaborating further, it is the policy of the court to stand by the ratio decidendi, that is the rule of
law, and not to disturb a settled point. This policy of the courts is conveniently termed as the
doctrine of the rule of stare decisis. The rationale behind this policy is the need to promote
certainty, stability and predictability of law. This, however, does not mean that the rule is
inflexible. In this context, it will be advantageous to sum up what Hamoodur Rahman, C.J., in
the case reported as Asma Jilani v Government of the Punjab PLD 1972 SC 139, said:
“I am not unmindful of the importance of this doctrine but in spite of a Judge’s fondness for the
written word and his normal inclination to adhere to prior precedents I cannot fail to recognize
that it is equally important to remember that there is need for flexibility in the application of
this rule, for law cannot stand still nor can we become mere slaves of precedents.
It will thus be seen that the rule of stare decisis does not apply with the same strictness in
criminal, fiscal and constitutional matters where the liberty of the subject is involved or some
other grave injustice is likely to occur by strict adherence to the rule.”

Nature of precedent:
A precedent is purely constitutive and in no degree abrogative. This means that a judicial
decision can make a law but cannot alter it. Where there is a settled rule of law, it is the duty of
the judges to follow the same.

PRECEDENT AS A SOURCE OF LAW:

CREATIVE ROLE OF THE JUDGES: Every developed legal system possesses a judicial organ. The
main function of the judicial organ is to adjudicate the rights and obligations of the citizens. In
the beginning, in this adjudication the courts are guided by customs and their own sense of
justice. As society progresses, legislation becomes the main source of law and the judges decide
the cases according to it. Even at this stage, the judges perform some creative function. In the
cases of first impression, in the law made by the legislature, the judges depend on their own
sense of right or wrong.
INDUCTIVE AND DEDUCTIVE METHODS: In the English legal system, a great reliance is places
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’.
There are legal systems where most of the law is embodied in legislation (known as ‘Civil Law
Systems’). The judges decide the cases according to the law laid down in the code, and they are
not to look for the previously decided cases of the similar nature. This is called the ‘Deductive
Method’.
Judicial precedent when it speaks with authority, the embodied principle becomes binding for
future cases and it thus becomes a source of law. Blackstone has pointed out that it is an
established rule to abide by the former precedents where the same points come again in
litigation. Authoritative precedents are a legal source of law, in so far as they are binding on
the judges and persuasive precedents are a historical source of law, in so far as they are only a
persuasive or guiding efficacy, and thus provide a historical basis on which law may be built by
the judge if he is favorably inclined to that precedent and accepts it.
Each original precedent laid a new pillar of law and helped in the growth and development of
the common law of England. Each declaratory precedent strengthened and confirmed each
original precedent, thereby making the law certain and safe to be followed. The doctrine of
precedent as pointed out by Salmond, two meanings-a strict sense and a loose sense.
In the strict meaning, precedents have a great value and should be regarded as authoritative
and should be followed except under certain circumstances.
In the loose sense, the doctrine of precedent implies that precedents are reported judgements
of law courts meant to be cited, and that these judgements will probably be followed by the
judges. Precedents carry some legal principles. The legal principle on which a case is decided is
called the ratio decidendi of that case. The ratio decidendi means the reasoning factor behind
the decision. The ratio decedendi refers mainly to questions of law-abstract questions. Ratio
decidendi is that principle of law on which a judicial decision is based. A precedent has a ratio
decidendi, i.e. the basic principle on which it rests. The ratio decedendi is the very heart of a
precedent. This abstract principle laid down in a particular case is followed by judges thereafter
on such issues.

AUTHORITY OF PRECEDENT: The reason why a precedent is recognized in that a judicial

decision is presented to be correct. That which is delivered in judgment must be taken for
established truth. Decisions are given by judges who are expert in the study of law.

DO JUDGES MAKE LAWS?

What is a judge?
A judge is someone who leads courts action, judges are either by themselves or part of panel of
judges that includes up to 7 judges. The judge must conduct the trial with an open mind and in
an open court to allow for a just outcome. In some circumstances, the judge can share power to
jury to come to a final decision.
INTRODUCTION:
A law is an obligatory rule of conduct imposed and enforced by the sovereign. Therefore the
law is the body of principles recognized and enforced by the state in the application of justice.
The law is mainly made by a parliament, a legislative body given power by the constitution to
draft law. However in the last few decades there has been a notion that judges make law. A
judge is a public official appointed or elected to hear and decide legal matters in court, Judges
exercise judicial power. This involves making binding decisions affecting the rights and duties of
citizens and institutions. In carrying out this task, a judge can use any of the following three
sources, Acts of Parliament or legislation, the common law or previous decisions by the courts
and a constitution.
There had been a debate on the functions of judges in the process of performing their judicial
functions. The debate based on whether judges makes law or not? In order to understand and to
make a critical argument in this regard, it is important for the proposing party or opposing party to
take some serious measures to study and to acquire full knowledge about doctrine of precedents
and separation of powers.
DOCTRINE OF PRECEDENT: provides that the decision of the superior courts will be binding upon
the subordinate courts. The ratio decidendi established by the court in its decision of earlier case
becomes an authority on the lower court when deciding subsequent cases which material fact are
the same.

Doctrine of separation of powers: The government powers are divided into three organs of
state that are executive, judiciary and legislature. Each organ has its jurisdiction and functions
different from others. No organ interfere with functions of others. The judiciary is vested with
power of interpreting of laws and administrating justice. The power to make laws is vested under
the parliament. Therefore, it’s against the doctrine of separation of powers for judicial officers to
make laws.
This debate has raised two different point of views in legal jurisprudence. Many jurists and judges
do not agrees with the same point of view. Some of them thought that they should not make laws
and they declare it called declaratory theory, while some others argue that they should make laws.

DECLARATORY THEORY:
Supporters of this theory says that judges do not make laws, they only discovers the law and
declare it and not more than that. This view has been supported by various jurists:
According to BLACKSTONE: They (judges) are depositories of the law. A judge is sworn to
determine, not to accord his private judgment but according to the known laws and customs of
the land, not delegated to pronounce a new law but to maintain and explain the old one.
EDWARD COKE: The judicial decisions do not constitute a source of law but rather a proof what
the law is.
SIR MATHEW HALE: the decision of court of justice do not make law properly so called, for that
only king and parliament do.

CRITICISM ON DECALATORY THEORY:

Bentham criticize this declaratory theory as a willful falsehood having intention of stealing
legislative power of the parliament by and for hands which could not openly claim it.
John Austin, Salmond, Munroe smith observed a theory as only a fiction that must not been taken
seriously because the truth is that judges make laws. It seems judges do not agree that they make
law in order to avoid contradiction with the parliament and to show that they are not against the
separation of powers.

PROPOSING SIDE (JUDGES MAKE LAWS):

ON THE OTHER SIDE OF COIN, some jurists and judges agrees that judges make law. They term it
as judge-made laws. They argue that in deciding various cases (HARD CASES) judges introduce
different new principles that are binding on the subordinate courts and actually those principles
are law.
According to DICEY: “As all lawyers are aware, a large part and as many would add, the best part
of the law of England is judge made law”.
Sir POLLACK also supports the view by stating that: “no intelligent lawyer would in this day
pretend that the decisions of the court do not add to alter the law”.
BENTHEM JEREMY: “The judge make laws for the same way for you and me”.
A good example is JUSTICE HOLMES who says: “I recognize and without hesitation that judges do
and must legislate, but they can do so interstitially; they are confined to molar, to molecular”.
Looking closely at the present legal system, that judges have played a dominant role in molding
the doctrines of present law i.e. common law.

WHY JUDGES MAKE LAW?

Occasionally, judges are called upon to give a ruling or make a decision when faced with a situation
for which there seems to be no precedent or any guiding rule. In these circumstances, judges can
be said to be formulating original precedents thereby, using his own discretion regarding when he
thinks rules need to be applied, changed, improved or abolished. A judge in using his discretion,
the phrase commonly used here is that, he decides not on precedent but on principle, the
difference is that he is applying a principle illustrated by a previous example, in other case he is
employing a case not previously formulated but consonant with whole doctrine of law and justice.
Further because statutes and common law rules are often too vague and unclear it is often
inevitable in "hard cases" for a judge to create new law by deciding cases. The decision of
courts of justice when exactly in point with a case before the court are generally held to have a
binding authority, as well to keep the scale of justice even and steady because the law in that
case has been solemnly declared and determined.

Judges further make law through statutory interpretation. The trend has always been that the
legislature makes the law while the judges interpret it. Legislation may sometimes be ambiguous
or unclear.  When this occurs, a court will need to decide between different interpretations of
legislation. The common law is judge made law.  It has been developed by the courts. It continues
to be adapted to meet new situations and changing circumstances.
The role of judges in interpreting legislation and the Constitution is similar.  The Constitution is
written in more brief and general language than most Acts of Parliament. This is because it is
expected to last longer and be able to accommodate changing circumstances.  This style leads
to a greater range of interpretations. Over the years, the Supreme Court has made decisions
which have affected the practical operation of the Constitution. The parliament which is in
charge of law making cannot amend each and every law simply because it fast becoming
obsolete. Therefore when the law becomes unclear judges cannot simply say it’s unclear and
ask the parliament to rectify it. Judges must take the law into their own hands to and
interpret the laws to an extent that is reasonable and in the bounds of law and reason thus
they should generally accept responsibility of reforming the law in the interests of clarity,
efficiency and fairness. This is evidence of the power of the courts in their ability to create law
through there simple interpretation of the law. However it should be noted that this is not a
power readily available such that it can be used at the courts convenience.
The above analysis shows how judges can “make” law. However the word make should be used with
extreme caution. The above argument is one that can also be used to support the fact that rather than
make law, judges simply declare law. 

WHY JUDGES DO NOT MAKE LAW?

The Constitution provides for a complete separation of judicial power.  This is one limitation on

judges because it prevents courts from exercising powers which are not "judicial" in character.

The separation of powers is a political and administrative tool that holds the pillars democracy
together. And in a country under the rule of law the judiciary with its well defined limits cannot
step into the shoes of the parliament. The constitution is the most supreme law of the land and
its prohibition of the other arms of government to make law should be taken seriously thus if
the judiciary is exercising such a powerful role, it should be more open to criticism and the
contempt power should be used only rarely. Otherwise, it will reflect on the judiciary as a
dictator.
Further the rules of statutory interpretation further bar judges from making law. It’s generally
agreed that in order to interpret statutes judges must use precision based procedural rules.
Statutory interpretation employs the literal rule, the golden rule and the mischief rule. They
are guidelines that must be followed in the interpretation statutes. This is meant to reduce the
entry of bias or judge’s discretion which may be unethically motivated. Therefore a judge who
formulates a legal principle for the first time does so as an existing part of the law and not as a
legislative innovation of his own. In general, principles are identified by showing that they are
embedded in the established rules and decisions.
For valid precedents, they must be founded in reason and justice; must have been made upon
argument, and be the solemn decision of the court; and in order to give them binding effect
there must be a current of decisions therefore court judges are not at liberty to exercise their
freewill but rather their discretion must pass the test of fairness and reasonability. In this
way, precedents are considered certain, complete and reasonable.

CONCLUSION:
Judicial power involves making binding decisions, affecting the rights and duties of people and
institutions, by reference to existing law. Existing law is found in legislation, judicial decisions or
common law, and the constitutions. In applying any of these sources of law, judges make law to a
limited degree.
The term ‘limited’ should be noted. The power to make law is primarily vested in the parliament
and under the constitution judges are under no obligation to make law. However in today’s
world where time is dynamic there is a need to constantly interpret the law to fit the ever
changing times. Judges are most paramount at this stage because they cannot send laws back for
rectification simply because the times have changed. It’s up to them to exercise the utmost
reasonable discretion and interpret the law in such a manner that is complementary to the current
mode of life in so doing making law.
Indeed the power to make law is one that is not vested in judges but it cannot be denied that to
some extent they actually do make law.

REFRENCES:
(Pdf) DO JUDGES MAKE LAWS? /mbagati nyarigo- academia.edu
Legal education with a purpose: do judges make law?