What
constitutes law?
Law encompasses regulations endowed with legal
authority, serving as universal guidelines applicable to all. It represents the
will of the state or sovereign, dictating behavior and fostering conformity. In
civil society, law is indispensable, facilitating governance and maintaining
order. There are multiples sources from where law is derived such as
customs, legislation, religion, judicial decision, precedent, etc.
What are the
sources of law?
We'll focus on three primary sources: customs,
precedent, and legislation. Customs, regarded as one of the oldest sources, are
supplemented by traditions, norms, and values in shaping legal systems.
Additionally, laws draw inspiration from religious and moral principles. Since
the 13th century, legislation has emerged as a significant source of law. In
modern times, judicial decisions also wield considerable influence as a source of
law. Further sources include principles of justice, equity, and good conscience.
1.
Customs
2.
Precedent
3.
Legislation
CUSTOMS
Customs are unwritten rules or practices widely adhered to by people,
carrying a sense of obligation. In ancient times, customs governed societal
behavior and were later embraced by significant social institutions. Their
formalization occurred when adopted by legal or political entities, marking a
historical transition into law. A vivid example is evident in Hindu marriage
ceremonies, where couples traditionally take seven rounds around a holy fire.
This customary practice was enshrined in Section 7 of the Hindu Marriage Act,
1955, illustrating the evolution of customs into codified law.
Not all customs qualify as laws; certain essential characteristics must
be met for a custom to attain legal recognition. In the ensuing paragraph, we
will delve into these requisites. Firstly, customs must have a longstanding
practice, indicating antiquity. Secondly, they must be openly known and
practiced by all, avoiding secrecy. Furthermore, customs should exhibit
reasonableness and align with societal morality and established norms and
values. Additionally, customs must not contradict existing legislation; indeed,
there are instances where laws supersede customs, such as in cases of child
marriage and dowry.
Precedent consists of two components: Ratio Decidendi and
Obiter Dicta. Only the ratio decidendi carries binding force. It represents the
reasoning employed by the judge in reaching a decision. Lower courts are
mandated to adhere to it when confronted with the same legal issue. Conversely,
obiter dicta lacks binding authority. It comprises general remarks made by the
judge and holds only persuasive influence over lower courts.
PRECEDENT
Precedent, or judicial precedent, plays a crucial role in the
legal system of any nation. It occupies a unique position, neither as ancient
as customs nor as contemporary as legislation. Judicial precedent refers to
prior decisions made by courts, and it carries binding authority on lower courts. The
hierarchical structure is crucial in determining which decisions hold sway. The
Supreme Court's rulings bind higher courts, mandating their compliance. High
courts, in turn, are subordinate to one another, with their judgments carrying
persuasive weight. This hierarchical arrangement is enshrined in the Indian
constitution. Courts play a pivotal role in interpreting the law, providing
broader perspectives on its application.
LEGISLATION
The term "legislation" originates from the Latin language,
literally translating to "making the law." It stands as a significant
source of law due to its endorsement by legal authority, widely acknowledged by
various institutions. "Legislation" holds dual meanings: firstly,
denoting the process of making laws, and secondly, referring to the laws themselves
Legislation can be categorized into two main types: supreme legislation
and subordinate legislation. Supreme legislation refers to laws enacted by the
Parliament. Subordinate legislation, on the other hand, is crafted by
authorities who are subordinate to the supreme authority or have been delegated
authority by the sovereign. Subordinate authorities include:
a.
Autonomous
laws
b.
Judicial
rules
c.
Local laws
d.
Colonial
e.
Laws
enacted by the executive
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