PROJECT OF JURISPRUDENCE

11/4/2021
COMPARATIVE STUDY OF
LEGISLATION AND PRECEDENT AS
A SOURCE OF LAW

NAME :
ROLL NO : 52
TH
CLASS : SY LLB (4 SEM)
DIVISON :A
SR NO. PARTICULAR PAGE NO.
1 INTRODUCTION 2
2 WHAT IS LAW? 2
3 WHAT IS SOURCE OF LAW? 4
4 WHAT IS LEGISLATION AS A SOURCE OF LAW? 8
5 WHAT IS PRECEDENT AS A SOURCE OF LAW? 10
6 COMPARISON BETWEEN LEGISLATION AND PRECEDENTS 13
AS A SOURCE OF LAW:
7 CONCLUSION 15
8 REFERENCE 15

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  Introduction:
For the Comparative Study of Legislation and Precedent As Source Of Law We Need To
Understand;
 what is law?
 What Is Source of Law?
 What Is Legislation As A Source Of Law and
 What Is Precedent As A Source Of Law?

 What is law?
 The word law is derived from a Teutonic word Lag which means definite. On this basis it
can be defined as defined rules and regulations which are need to be followed by the
beings. Law is important in various parts in the lives of people and the system. A single
word cannot suffice the characters of law. The law can be understood in relation to
something or in an analogy. For example- law and temple, it can be said that both are
built up so that one can attain peace and harmony in place. Law and love, both are
inexpressible in nature that is they both cannot be explained in a word, but both of these
affects the human actions.
 A relationship can be drawn among law and ocean. Both law and ocean are immense and
as a drop adds to the amount of water in the sea, similarly every judgment adds itself to
numerous points of reference. Likewise, there is no existence without water, there is no
existence without law.
 Law helps in maintaining proper order in the society and prevents the happening of chaos
in the system. The law not only provides rules and regulations which are need to be
followed by the individual living in the society, but it also provides rights to its citizens,
which can be enforced by the citizens without any exception or restrictions.
 The rights of the citizens are given utmost preference by the law of any democratic
country. While law provides the rights to be enforceable by the people associated with it,
it also imposes some duties on its people which are to be followed by them without any

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 excuse and exception (apart from those explicitly provided by the law). Apart from
duties, law also provides sanctions and restrictions, that what people are not supposed to
do.
 There is no complete or perfect definition for the word law in the current scenario,
because of its universal and dynamic nature, it is applicable to each and every thing in the
universe and it keeps on changing according to the needs of the people and the system
which governs them.
 Still various authors and jurists tried to give definition of law in the most acceptable
manner they can, given below are some of these definitions according to:

o Sir John William Salmond [1]- Law may be defined as the body of principles recognized
and applied by the state in the administration of justice. All in all, law comprises of rules
perceived and followed up on by the Courts of Justice.
o Oliver Wendell Holmes [2]- The prophecies of what the courts will do in fact, and
nothing more pretentious.
o John Austin- Law is the aggregate set of rules set by a man as politically superior, or
sovereign to men, as political subjects. Hence, this definition characterizes law as a bunch
of rules to be trailed by everybody, paying little mind to their position.
o Aristotle- As an embodiment of reasons whether in individual or the community.
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 Of all the definitions, Salmond's definition is considered the most apt definition. Still
there is no complete and perfect definition of law.
 Article 13 (3) of the Indian Constitution also defines law, it states- In this article, unless
the context otherwise requires law includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usages having in the territory of India the force of law;
laws in force includes laws passed or made by Legislature or other competent authority in
the territory of India before the commencement of this Constitution and not previously
repealed, notwithstanding that any such law or any part thereof may not be then in
operation either at all or in particular areas.[3]

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 What Is Source Of Law?
 To have a clear and complete understanding of law, it is essential to understand the
sources of law. Sources of law mean the sources from where law or the binding rules of
human conduct originate. In other words, law is derived from sources. Jurists have
different views on the origin and sources of law, as they have regarding the definition of
law.
 As the term 'law' has several meanings, legal experts approach the sources of law from
various angles. For instance, Austin considers sovereign as the source of law while
Savigny and Henry Maine consider custom as the most important source of law. Natural
law school considers nature and human reason as the source of law, while theologians
consider the religious scripts as sources of law. Although there are various claims and
counter claims regarding the sources of law, it is true that in almost all societies, law has
been derived from similar sources.
 Source Of Law Are Those Factors By Which Rule Of Conduct Acquires The Character
Of Law In The Form Of Objectively Definite, Uniform And Compulsory.
 Classification Of Source Of Law:
o Salmond Has Classified The Source Of Law Into The Following Two Categories:
a) Formal Source Of Law And
b) Material Source Of Law.

a) Formal Source Of Law:

 Formal Source Of Law May Be Defined As That Source Of Law From Which A Rule Of
Law Derives Its Force And Validity. In Other Words, The Formal Source Is That Source,
From Which The Authority Of Law Proceeds, For Example The Will Of The State
Embodied In The Statute Or Judgement Of The Court In The Form Of Precedent.

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b) Material Source Of Law:
 Material Source Of Law May Be Defined As That Source From Which The Actual
Matter Of Law Is Derived. The Substance Of The Rule Is Supplied By The Material
Source Of Law.

o Kinds Of Material Source Of Law:

Material Source Of Law Are The Following Two Kinds:
a) Legal Source Of Law And
b) Historical Source Of Law.

a) Legal Source Of Law:

 The Term “Source Of Law” Was Used By Salmond To Mean “Legal Source” Only.
The Source Of Law Are As Under:

i. Custom (Which Gives Rise To Customary Law.)

ii. Precedent (Which Gives Rise To Case Law.)
iii. Legislation (Which Gives Rise To Enacted Law.)

i. CUSTOM:

 It Is An Important Legal Source Of Law. Custom Is Defined As A Habitual

Conduct Of The Society. Custom Means An Established Usage Which Are
Having The Force Of Law. Custom Is A Rule, Which Was In Existence From The
Time Immemorial. IN Order To Become A Valid Local Custom, It Is Necessary
That, Custom Must Be In Existence From Time Immemorial, Must Be In
Continuous Existence With Certainty And Consistency Without Opposing To The
The Statue And Rules Of Morality, Must Also Be Reasonable And Must Be
Peacefully Enjoyed. The Conduct Of The Man In Forming Relationship Is
Regulated By Customary Rules. These Rules Are Recognized And Followed

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 Under The Sanction Of The Sovereign. When Such Rules Become Common Over
A Wide Extent They Are Known As Common Law And When These Common
Laws Or Customary Rules Are Adopted And Are Incorporated In Their Decision
At This Stage The Common Or Customary Law Is Changed Into Judge Made
Laws And When The Judge Made Laws Are Embodied In The Statute, They Are
Called Statute Law. Thus, Custom Giving Rise To Customary Laws Contributes
To The Material Contents Of Legal System.

ii. PRECEDENT:

 A Judicial Precedent Is An Important Legal Source Of Indian Legal System.

Judicial Precedent Is The Decision Of A Court Of Law Which Is Cited As An
Authority For The Purpose Of Deciding The Similar Subsequent Case Having
The Similar Facts, In The Same Manner. Precedent Are The Statement Of Judicial
Practice And Tradition, And They Have Played An Important Role As Legal
Source Of Indian Legal System. The Judicial Decision Of The Highest Court In
India I.E., The Supreme Court Has The Highest Authority. Under Article 137 Of
The Constitution Of India, The Supreme Court Has The Authority To Review
Any Judicial Pronouncement And Also Under Article 141, The Law Declared By
The Supreme Court Is Binding On All Court Within The Territory Of India.
Unreported Cases Or Decisions Are Possessing The Same Binding Authority As
The Reported Case. The Judicial Precedent Enunciates A New Principle Of Law
Which Has Binding Force And Which Requires Observance By The Subordinate
Courts, Whether They Approve Of It, Or Not. Thus, Precedent Played An
Important Role As A Legal Source In Indian Legal System.

iii. LEGISLATION:

 Legislation Is Another Important Legal Source Of Indian Legal System. The

Term Legislation Means The Making Of Law Or The Making Of The Set Of
Rules Or Statues. In Fact An Act Of Legislation Is Known As Statute. Law

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 Making Is Done By An Appropriate Organ Of The State Or By Subordinate Body
Or Authority Which Is Empowered To Do So. In Short, Legislation Is That
Source Of Legal Nature, Which Consists In The Declaration Of Legal Rules By
Authorized Or Competent Authority. Legislation Gives Rise To Enacted Law.
The Parliament Of India Under The Constitution Of India, Makes Laws Based On
Expediency, National Interest And For The Development Of The Nation.
Similarly, The State Legislatures Are Authorized And Empowered To Enact
Laws In Addition To The Items Mentioned In The State List Under The
Constitution. The Authorized Organs Or Subordinate Authorities Of The State,
Are Also Empowered To Make To Make Laws Thus, Legislation Has Played An
Important Role As Legal Source Of Indian Legal System.

b) Historical source of law:

 Historical sources are not authoritative. historical sources are not recognized by court as
of right. although, historical sources have their origin in the continuous process of change
and growth of law, or in other words, historical sources influence the process of legal
development, the fact remains that historical source of law are without any authority. For
example, the works of sir Edward coke and Bentham relate to material sources of English
law, but they are not followed by the court as of right. Similarly, the decision of courts
outside England are merely historical source of law, whereas the decision of English
court is merely historical source of law, whereas, the decisions of English court are legal
and authoritative.

c) Literary source of law:

 This is another important source of law. the source of law relating to juristic writings,
standard legal treaties, statues and law report from which knowledge of law is derived,
are known as “literary source of law.”

d) Agreement as a source of law:

 Agreement is one more important source of law. agreement means a common intention
between two or more persons to do or not to do something in accordance with law

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 forming legal relationship between the parties to the agreement. agreement relates to
conventional law confined to the parties to the agreement and having the force with
regard to the parties.

e) Expert opinion as a source of law:

 Opinion of the experts on the subject or opinion of the authority on the subject also
constitutes an important source of law. the works of dicey, Paton, Blackstone, sir Edward
coke and Bentham, are relied on, and cited as authority on the subject. the opinion
expressed by them on the relevant subject is weighed and accepted as authority by the
legislature, judiciary of the state.

 What Is Legislation As A Source

Of Law?
 As discussed above in the study the various sources of law, each source is different and
important in one or the other way. There is no one source which can be considered
superior among the many sources of law.
 Definition of Legislation
o According to Salmond: “Legislation is that source of law which comprises in the
assertion of lawful standards by a competent specialist.”
o According To Austin: “Legislation is the command of the sovereign or the superior
authority which must be followed by the common masses backed by sanctions”.
o According to Gray: “Legislation implies the formal expression of the administrative
organs of the general public.”
o According to Positivist School: “A run of the mill law is a rule and legislation is the
typical source and form of lawmaking.” Most examples of this school don’t affirm
that the courts additionally can figure law. They don’t concede the case of custom as
a wellspring of law. Consequently, they view just legislation as the form of law.

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 o According to Historical School: “The legislation is the least innovative of the forms
of law. The authoritative motivation behind the legislation is to give the better
framework and increasingly viable the custom which is unexpectedly created by the
general population.”

 Types of Legislation
o Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to
give, to authorise, to allow, to proclaim, to confine and to annul. Therefore, in enacting
any legislation and the rule of law, the welfare of the citizens must be kept in mind and
therefore, it is must be adopted in the best interests of the citizens. Some different types
of legislation are as follows:
a) Supreme Legislation
 The Supreme legislation is the legislation adopted by the sovereign intensity of the state.
In this manner, some other authorities which are the organ of the state cannot control or
check it. It is considered incomparable as well as lawfully powerful. An established piece
of this rule can be found in Dicey’s book, ‘The Law of the Constitution.’
 There is no legitimate restriction on its capacity. Indian parliament is likewise
preeminent. Even though there are different constitutional amendments upon its capacity,
it isn’t subject to any other administrative authorities inside the state. Therefore, the
sovereign jurisdiction of the state can’t be revoked, cancelled or constrained by some
other authoritative organ of the state.
b) Subordinate Legislation
 Subordinate legislation will be legislation by some other authority than the Supreme
specialist in the state. It is made under the powers designated by the Supreme
authority. Such legislation owes its reality, legitimacy, and continuation to the Supreme
expert. It can be cancelled and abrogated anytime by the power of the sovereign authority
and therefore, it must offer an approach to sovereign legislation. Subordinate legislation
is liable to parliamentary control. Five unique types of subordinate legislation can be
distinguished. These are as follows.
o Colonial Legislation
o Executive Legislation

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 o Judicial Legislation
o Municipal Legislation
o Autonomous Legislation
o Delegated Legislation

 What Is Precedent As A Source Of

Law?
 Precedent form the primary source of law these days, they tend to strengthen the laws and
judicial system of the country and help us to improve the formation of laws of the country
and make them suitable according to the situations. But the basic problem in its
application is the unavailability of proper records for its effective implementation,
improving which will improve the situation and make the system more flexible.
 History of Precedent
o Indian law is largely based on English common law because of the long period of British
colony influence during the British raj. Precedents became a source of law only during
the British rule in India. The government of India act 1935 established a federal court and
Privy Council whose decisions were binding on all the other courts in the country and
this was the beginning of using precedents in making judgments, soon with passage of
time precedents acquired a lot of importance.
 Meaning of precedent:
o a precedent is an event or an action that has occurred earlier and acts as a guide for
similar situations. According to Bentham precedents are judge made laws. Any particular
precedent establishes a principle or a rule that is followed while taking similar decisions.
 Definition:
o According to black's law dictionary: Rule of law established for the first time by a court
for a particular type of case and there after referred to deciding similar cases.[1]
o According to Keeton: A judicial precedent is judicial to which authority has in some
measure been attached.[2]

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 Doctrine:
 a Latin term called stare decisis is the doctrine of legal precedent. The term stare decisis
refer to courts looking at similar or historical case as a guide to take a judgement in
future, it means to stand by the decided cases. This doctrine is mentioned in the article
141 of the constitution. It is used in all courts and in all legal issues.
 Article 141 of constitution:
 The doctrine of precedent is expressly incorporated in India by Article 141 of the
Constitution of India, 1950. Article 141 provides that the decisions of the Supreme Court
are binding on all courts within the territory of India. Although there is no express
provision, but by convention the decisions of a High Court are binding on all lower courts
within the territorial jurisdiction of that High Court. Similarly, a decision of a higher
Bench, is binding on the lower Bench.[3] In the article all courts refer to all the other
courts except Supreme Court, the Supreme Court is not bound by its decisions.
 Kinds of precedent:
 Precedent are classified into 2 categories viz. a) declaratory precedent b) original
precedent
a) declaratory precedent: declaratory precedent may be defined as a precedent which is
merely the application of an already existing rule of law.in other word, declaratory
precedent do not make laws. according to the theory of declaratory precedent, they are
only declaratory.
b) Original precedent: an original precedent may be defined as “a precedent which lays
down a principal of law or rule of law for the first time” original precedent are classified
into 2 categories followed by the judges, whether they approve of it or not. These judges
are under the obligation to follow the authoritative precedents. authoritative precedent are
recognized as a source of law. authoritative precedent are further classified into 2
categories, namely I) absolutely authoritative and II) conditionally authoritative.in case
absolutely authoritative precedents, the court are required to follow them, because, such
precedent are absolutely authoritative, whether they approve of it or not. on other hand
conditionally authoritative precedent are not absolutely binding. a conditionally
authoritative precedent maybe disregarded by the court, and the court will be justified in
doing so.

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c) Persuasive precedent: a persuasive precedent is one which is not binding on the court,
and therefore is no obligation upon the courts to follow. for example the decision given
by the supreme court of India is authoritative precedent with to all other subordinate
courts including high courts.in the case of persuasive precedent, a decision given by
Mumbai high court is authoritative with regard to all other subordinate courts in the state
of Maharashtra, but a decision of madras high court or Patna high court ,may only be
persuasive in the state of Maharashtra.
 Good examples of precedents:
o Vishakha and others vs. State of Rajasthan (air 1997 sc 3011)
 It is regarded as one of the landmark cases in India because this case was the first
of its kind to provide safety for women at their work places. The roots of the case
are attached to miss bhanwari devi who was a social worker and was brutally
gang raped by upper case men, as she opposed a child marriage. though she filed
a case she was unable to get a justice. Bhanwari Devi's determination attracted
many women and ngos to file a public interest litigation (PIL) collectively under
the platform of Vishakha for the violations of article 14,15,19(1)(g) and 21.the
judgment given by the bench of J.S Verma, Sujata Manohar and B.N Kripal laid
down the vishakha guidelines to protect women against sexual harassment at
work place ,later in 2013 it was transformed into a the sexual harassment of
women at workplace act,2013, which enabled one of the biggest victories of
women.

o People’s union for civil liberties vs. union of India 2001: right to food:
 This case made India the first nation to protect right to food under its constitution.
The case deals with providing food to the starving population through effective
PDS system. outside the city of Jaipur the go downs of food corporation of India
(FCI) were over flowing and were a rotten and villagers nearby were eating food
on rotational basis and also the government had 40 million tons above the buffer
stock, which lead the PUCL of Rajasthan to file a case and the FTFM LECTURE
41 FOREXjudgment introduced various acts like mid-day meals, integrated child

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 development system, Annapurna scheme and many more to protect the people
below poverty line and provide food to them at subsidized rates.

Comparison between Legislation and

Precedents as a source of law:

 Repudiating power of legislation:

o It is its abrogative force and altering characteristic that gives legislation
prevalence over precedents. legislation in both constitutive and abrogative while
precedent simply has constitutive adequacy. The legislation isn't just a wellspring
of law. Precedent, then again, can't repeal the current principle of law in spite of
the fact that it might deliver better law and in some regard in a way that is better
than legislation. What it does, it does for the first and last time. It can't backtrack
its position.

 Proficiency:
o Legislation permits a profitable division of work by separating the two elements
of making law and managing it. This outcome in expanded effectiveness.
Precedence, unexpectedly, clubs both the work that is making and implementing
of law.

 Declaration:
o Justice states that law should be known before it is applied and upheld by the law
courts, however the case law worked reflectively, being applied to realities that
are earlier in date to the law itself. statute law only occasionally reviews in its
activity. At that point, legislation withstands the trial of a translation of the
resolution by the official courtrooms. In the event that any modifications are
proposed in the ordered law, they are distributed and assessments welcomed. Case

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 law, despite what might be expected, is made and pronounced at very much the
same time.

 Structure or form:
o Statue law is incredibly better than case law in the purpose of the structure.
Statute law is positive, brief, clear, and effectively justifiable. In Precedence, to
know standards and rules one should investigate the subtleties of the case. As
Salmond notices, case-law is gold in mine – a couple of grams of valuable metal
to the huge load of futile material – while rule law is the coin of the domain,
prepared for guaranteed use.

 Clearness and Accessibility:

o A statute is communicated in theoretical terms as a progression of general
principles. It is, accordingly, clear and compact and might be perceived by the
layman. A law settled on by legal choices, then again, exists no place in a general
and conceptual structure. In precedence, rules and standards are set somewhere
near the inductive strategy. In legislation, the deductive strategy is turned to. The
courts take the standard from the resolution and apply it to a specific case.

 Coherency:
o Judiciary law will undoubtedly be deficient with regards to incoherency and
fulfilment since it is limited to the specific case just at without fail. Through
legislation, then again, the law fits precise treatment. This is no mean bit of
leeway to legislation over case-law.

Conclusion:

 The study includes the meaning of the law, its definition by various authors which are
widely accepted in the current scenario, since there is no particular definition of law,

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 Salmond's definition of law is considered the aptest definition of law. Since the law is
involved in everyday actions and activities of the people and is directly engaged with the
people's life. It is important to understand the various sources through which a particular
law is enacted, so as to get a proper essence of the law enacted.
 Further, the study discussed the various sources of law, which are broadly divided in
primary and secondary sources. The major or the primary sources are legislations,
judicial precedents. The meaning and definitions of each source were discussed and on
doing a comparative analysis on the same the legislation as a source of law had some
advantages over the other sources of law, but it also had its own disadvantages.
 On doing the analysis it can be said and also it is a well-established fact that no source of
law is complete or apt in itself, each one of the sources has its own importance, the
essence or importance of which can vary from time to time, as the needs and
requirements of the people in the society changes.

REFERENCE:
1. https://blog.ipleaders.in/legislation-source-law/
2. http://www.legalserviceindia.com/legal/article-4751-importance-of-judicial-precedent-a-
comparative-analysis.html
3. http://www.legalserviceindia.com/legal/article-2216-precedents-as-a-source-of-law.html
4. http://www.legalserviceindia.com/legal/article-4922-analysis-of-legislation-as-a-source-
of-law.html
5. “JURISPRUDENCE” BOOK BY PROF PRAKASH K MOKAL. (PUBLICATION
SHRUTISHREYA PUBLICATION).

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