Second-year Law Notes & Flashcards

Introduction

The word ‘Jurisprudence’ is derived from the Latin word jurisprudentia, which means science or knowledge of law. It is a very vast area of study and it consists of several ideologies and theories on how law has been made. It also includes the relationship of law with individuals and other social institutions within the scope of its study. There are various sources from which we derive law. Several jurists and scholars have attempted to classify the sources of law. However, the most common sources in all these classifications are legislations, judicial precedents, and customs.

Law and Sources of Law

According to John Chipman Grey, who was a Harvard Law School professor, “the Law of the State or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body, lays down for the determination of legal rights and duties”. Though Gray’s definition has been criticised for being narrow, he distinguished law from the sources of law. According to him, law has evolved through case laws and sources of law are where we get the content and validity of law from. Essentially, law refers to the rules or code of conduct and its sources refer to the materials from which it gets its content.

Types of Sources of Law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories, i.e., material sources and formal sources.

Material Sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources.

Legal Sources

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories:

• Legislation
• Precedent
• Customary law
• Conventional law

Historical Sources

Historical sources are sources that influence the development of law without giving effect to its validity or authority. These sources influence legal rules indirectly. The difference between legal and historical sources is that all laws have a historical source but they may or may not have a legal source. Decisions given by foreign courts serve as an example for this kind of source.

Formal Sources

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law into binding sources and persuasive sources.

Binding Sources

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs.

Persuasive Sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgements, principles of morality, equity, justice, professional opinions, etc.

Precedent as a Source of Law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases with similar facts.

Important Judicial Precedents

• Kesavananda Bharati Sripadagalvaru vs. State of Kerala (1973) – Introduced the Basic Structure Doctrine.
• Gian Kaur vs. State of Punjab (1996) – Right to die is not part of Article 21, but right to die with dignity exists.
• Maneka Gandhi vs. Union of India (1978) – Section 10(3)(c) of Passports Act held void for violating Articles 14 and 21.
• Indra Sawhney vs. Union of India (1992) – Reservation ceiling fixed at 50%.

Doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare decisis which means to not disturb what is already settled. In India, subordinate courts are bound by precedents of higher courts. As per Article 141 of the Constitution of India, decisions of the Supreme Court are binding on all courts in the country.

Doctrine of Res Judicata

The term res judicata means subject matter adjudged. Once a suit is decided, the same issue cannot be raised again between the same parties unless new facts are discovered.

Ratio Decidendi

Ratio decidendi means the reason for the decision. It is the authoritative part of a judicial decision that binds subordinate courts.

Obiter Dicta

Obiter dicta refers to statements made by judges which are not necessary for deciding the case. These statements are persuasive but not binding.

Legislation as a Source of Law

Legislation refers to laws enacted by the legislative organ of the government. The term is derived from legis (law) and latum (making). It is one of the most important sources of law.

Types of Legislation

Supreme Legislation

Supreme legislation is enacted by a sovereign law-making body whose laws cannot be challenged. The British Parliament is sovereign, whereas the Indian Parliament is not.

Subordinate Legislation

Subordinate legislation is enacted by bodies that derive authority from the sovereign legislature. Types include executive, judicial, municipal, autonomous, colonial, and delegated legislation.

Custom as a Source of Law

Custom refers to practices that have received community approval and have become legally binding over time. Many personal laws in India are derived from customs.

Requisites of a Valid Custom

• Reasonable
• Ancient
• Certain
• Continuous
• Not opposed to public policy
• Conformity with statute

Conclusion

To conclude, the major sources of law in jurisprudence are legislation, judicial precedents, and customs. While legislation is the primary source, precedents and customs play a vital role in interpreting, shaping, and supplementing the law to meet societal needs.

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