Introduction :- For a complete understanding of the concept of law it is necessary to understand the source of law. The expression 'source of law' means the fact from where the rule of human conduct came into existence and derive legal force of binding character. Since the origin, growth and basis of law has been different in different stages of social development. Some of the jurist have emphasized one source to the conclusion of the law in the society itself, while others have insisted on the will of the sovereign as the exclusive basis of law. Some have observed as, will be seen later, that the source of law is the society itself, while other have insisted on the will of the sovereign as the Exclusive basis of law.
To make things simpler Salmond has made and artificial classification of the source of Law, e.g., formal and material; which is of course discarded by Dr Glenville Williams- the editor of Salmond's Jurisprudence. Formal source of law is from which a rule of law derives its force and validity e.g., statute, judicial pronouncement or precedents, etc. The material source of law is that form where the matter of law is derived e.g., custom, tradition etc.
However, all jurist agreed that there are three main source of Law viz. custom, legislation and judicial precedent. These main sources of law has been discussed below:-
Custom:- In all societies weather of the West of East developing, primitive or modern; custom has enjoyed a respectable place in varying degree in the regulation regulation of human conduct. Custom may be defined as a continuing course of conduct with by the express approval of the community observing it, has came to be regarded as fixing the norms of conduct for members of society. With the historical process and gradual evaluation of the societies, the institution of custom also acquired great potency and came to be regarded as one of the important source of law.
In England the entire English law including the law of merchants, in Germany the codification of German civil cold 1901, is based on German custom. In India Hindu and Muslim personal laws have been mostly based on custom. Manu declared that it is the duty of the King to decide all cases according to the principles drawn from the local usages.
Although custom is generally accepted and recognized as law, by law courts, provided it is proved to the satisfaction of the court. Custom as a source of law comprises legal rules which have neither been promulgated by the legislatures nor formulated by professionally trained judges, but arises from popular opinion and are sanctioned by long usage. Therefore all the customs which have the sanctity of law are of two kinds, namely,
Legal custom :- Legal customs are those which are operative par se as binding rules of law independent of any agreement between the parties. Legal customs are of two types- namely local custom and general custom. A local custom is that which prevails in some defined locality whereas a general custom is operative throughout the relm.
In order to be valid custom it must be consistent, reasonable, compulsory, observance, immemorial antiquity and certainty.
To make things simpler Salmond has made and artificial classification of the source of Law, e.g., formal and material; which is of course discarded by Dr Glenville Williams- the editor of Salmond's Jurisprudence. Formal source of law is from which a rule of law derives its force and validity e.g., statute, judicial pronouncement or precedents, etc. The material source of law is that form where the matter of law is derived e.g., custom, tradition etc.
However, all jurist agreed that there are three main source of Law viz. custom, legislation and judicial precedent. These main sources of law has been discussed below:-
Custom:- In all societies weather of the West of East developing, primitive or modern; custom has enjoyed a respectable place in varying degree in the regulation regulation of human conduct. Custom may be defined as a continuing course of conduct with by the express approval of the community observing it, has came to be regarded as fixing the norms of conduct for members of society. With the historical process and gradual evaluation of the societies, the institution of custom also acquired great potency and came to be regarded as one of the important source of law.
In England the entire English law including the law of merchants, in Germany the codification of German civil cold 1901, is based on German custom. In India Hindu and Muslim personal laws have been mostly based on custom. Manu declared that it is the duty of the King to decide all cases according to the principles drawn from the local usages.
Although custom is generally accepted and recognized as law, by law courts, provided it is proved to the satisfaction of the court. Custom as a source of law comprises legal rules which have neither been promulgated by the legislatures nor formulated by professionally trained judges, but arises from popular opinion and are sanctioned by long usage. Therefore all the customs which have the sanctity of law are of two kinds, namely,
Legal custom :- Legal customs are those which are operative par se as binding rules of law independent of any agreement between the parties. Legal customs are of two types- namely local custom and general custom. A local custom is that which prevails in some defined locality whereas a general custom is operative throughout the relm.
In order to be valid custom it must be consistent, reasonable, compulsory, observance, immemorial antiquity and certainty.
Conventional custom:- A conventional custom is also called usage. It is an established practice whose authority is conditional on its acceptance and incorporation in the agreement between the parties bound by it. A conventional custom is legally binding not because of any legal authority independently possessed by it, but because it has been expressly or impliedly incorporated in the contract between the parties concerned. A conventional customs are of two types- local andnational.
Legislation:- The term legislation has been derived from the Latin word 'legis' which means law and 'letum' to which means to make or set. Thus legislation means to making of law. By the word legislation we understood that the law which consists in the declaration of legal rules by a competent authority. The term legislation has been used in different senses. In its board sense it includes all method of law making and its technical sense it includes every expression of the will of the Legislature, weather making law or not.
Legislation may be either supreme or subordinate. Legislation is known as Supreme when it is proceeds from the sovereign power of the state and it is incapable of being repealed or annulled or controlled by any other legislative authority. Whereas subordinate legislation proceeds from any authority other than the sovereign power. It is dependent for its continued existence and validity from Supreme authority. Some of the examples of subordinate legislation are executive legislation, judicial legislation, Municipal legislation etc.
Precedent:- judicial precedents or stare decisis is an independent source of law, is not an ancient as custom and as modern as legislation. The term stare decisis means to stand by past decision or precedents and not to disturb settled points. When a point of law has been settled by a judicial decisions, it forms a precedent which is not to be departed from afterwards. A precedent may be either authoritative or persuasive. Authoritative precedent is one which has a binding force and the judges must follow it, whether he approves it or not. These are the decision of the Superior Court of Justice which are binding on subordinate courts; whereas persuasive precedents are those which are the judges and under no obligation to follow, but which may take into consideration e.g., foreign judgement, decision of the superior courts to other parts of British Empire, judgement of the Privy Council when sitting as the final Court of appeal from the colonies obiter dicta, authoritative textbooks and commentaries.
Legislation may be either supreme or subordinate. Legislation is known as Supreme when it is proceeds from the sovereign power of the state and it is incapable of being repealed or annulled or controlled by any other legislative authority. Whereas subordinate legislation proceeds from any authority other than the sovereign power. It is dependent for its continued existence and validity from Supreme authority. Some of the examples of subordinate legislation are executive legislation, judicial legislation, Municipal legislation etc.
Precedent:- judicial precedents or stare decisis is an independent source of law, is not an ancient as custom and as modern as legislation. The term stare decisis means to stand by past decision or precedents and not to disturb settled points. When a point of law has been settled by a judicial decisions, it forms a precedent which is not to be departed from afterwards. A precedent may be either authoritative or persuasive. Authoritative precedent is one which has a binding force and the judges must follow it, whether he approves it or not. These are the decision of the Superior Court of Justice which are binding on subordinate courts; whereas persuasive precedents are those which are the judges and under no obligation to follow, but which may take into consideration e.g., foreign judgement, decision of the superior courts to other parts of British Empire, judgement of the Privy Council when sitting as the final Court of appeal from the colonies obiter dicta, authoritative textbooks and commentaries.
Conclusion:- From the above discussion at conclusion we safely can say that may jurist had given different views regarding sources of law but there are some particular source where the most of the jurist have uniform opinion there are like' law like custom, legislation, precedents.
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