Class 11 Unit - 3 LS Sources of Law.pptx

Sources of law

1. Unit-2 / Ch-3 Sources of Law

2. Classification of Sources Salmon, an English Jurist, has classified the sources of law into the following categories: Formal sources of law : T hese are are sources from which law derives its force and validity . A law enacted by the state or S overeign f alls into this category. Material sources of law : I t refers to the material of law. In simple words it is all about the matter from where the laws are derived. Customs fall in this category.

3. Custom as a Source of Law

4. Custom as a Source of Law Customs are the earliest sources of law and form the basis of English common law system. They are those l ong established practices or unwritten rules which have acquired binding or obligatory character. In ancient societies custom was considered as one of the most important sources of law. With the advent of modern civilization , the importance of custom as a source of law diminished and other sources such as judicial precedent s and legislation gained importance .

5. Kinds of Customs

6. Kinds of Customs Customs can be broadly classified into two classes: Customs without sanction: Th ese customs are not enforceable by law bu t are still prevalent in society and have societal sanctions attached to them. For example , every society has some customs relating to dressing sense , treating elders , conducting marriages excetra. These are followed because of public opinion.

7. Customs with sanction: These customs are Binding in nature and are enforced by the state. Customs under this category have sanctions which are more stringent than customs without sanction . I f th ese customs gain widespread acceptance they acquire a legal character. On violation of these customs adequate penalty is incurred by the violator.

8. Customs with sanction are further classified into two types: Legal Customs : L egal custom is a custom whose authority is absolute . I t possesses the force of law . I t is recognised and enforced by the courts. They may be further classified into General Customs Local Customs

9. Conventional Customs: C onventional customs are binding on the parties to an agreement . W hen two or more persons enter into an agreement related to a trade, it is presumed in law that they make the contract in accordance with established convention or usage of the trade. For instance an agreement between the landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard .

10. Essentials of a Valid Custom ANTIQUITY: In order to be legally valid customs should have been in existence for a long time even beyond human memory. Recent aur modern practices cannot be custom until they become formally established in the society.

11. CONTINUOUS : A custom to be valid should have been in continuous practice . I t must have been enjoyed without any kind of interruption. L ong intervals and disrupted practice of a custom raise doubts about the validity of the same.

12. EXERCISED AS A MATTER OF RIGHT: Custom must be enjoyed openly and with the knowledge of the community. It should not have been practiced secretly. A custom must be proved to be a matter of right.

13. REASONABLENESS A c ustom to be valid should be based on rationality and reason. If a custom is likely to cause more inconvenience and m ischief than convenience , such a custom will not be valid . F or example , Sati was an accepted custom once but with modern understanding it cannot be considered as a custom today.

14. MORALITY: Custom which is Immoral or opposed to public policy cannot be a valid custom . For instance , the Bombay High Court in a case held that the custom of adopting a girl for Immoral purposes is illegal.

15. Judicial Precedent as a Source of Law

16. Judicial precedent refers to previously decided judgements of the superior courts, which judges are bound to follow It is an important source of law, but it is neither as modern as legislation nor is it as old as custom Judicial decisions can be divided into two parts: Ratio decidendi (Reason of Decision) Obiter dicta (Said by the way) The system of precedent is based on heirarchy of courts

17. Ratio decidendi Obiter dicta It refers to the binding part of the judgement. It is considered as the general principle which is deduced by the courts from the facts of a particular case. It refers to parts of judicial decisions which are general observations of the judge and do not have any binding authority. It generally becomes binding on the lower courts in future cases involving similar questions of law. It is given due consideration by lower courts and has persuasive value.

18. System of Courts during British Rule The British introduced the system of courts in India In 1773, a Supreme Court was established in Calcutta Later on, other Supreme Courts were established in other presidency towns High courts were established in provinces There was no heirarchy of courts between the Supreme Court and High Courts, they were independent of one another. The heirarchy was established only when the judicial committee of the Privy Council became the final appellate tribunal. Another milestone was the establishment of Federal Court by the Government of India Act, 1935

19. Heirarchy of Courts in British India

20. System of Courts Post-Independence India adopted its own constitution, which provided for a heirarchial judicial system It is pyramidal in nature The Supreme Court of India was established by the constitution of India, came into existence on 28 January, 1950 under article 124(1) of the Constitution of India The Supreme Court replaced the Federal Court It is the Apex Court in the heirarchy of courts

21. Heirarchy of Criminal Justice System

22. Heirarchy of Civil Judicial System

23. Do Judges Make Law? The judiciary has the power to examine the consitutionality of the law Courts create new rights for citizens Judiciary makes additions to the existing laws and while doing this judges actually make law Various jurists hold different views in this regard On the basis of these views, it can be inferred that judges do not make law in the same manner in which legislative bodies do

24. In Indian context, former judges of the Supreme Court enlarged the meaning and scope of various provisions of the Constitution. The Supreme Court too has created many new rights such as: right to privacy, right to live in a pollution free environment, right to livelihood etc. It can be concluded that the judicial precedents are important sources of law in modern society and judges do play a significant role in law-making.

25. Legislation as a Source of Law

26. Kinds of Legislation

27. Supreme Legislation Laws are enacted by the sovereign No authority except the sovereign itself can control or check it They are enacted by the highest law-making authority The laws enacted by the Indian and British Parliament fall in this category The Constitution is another example of a Supreme Legislation. The authority of the Constitution cannot be challenged by any other legislative power

28. Subordinate Legislation It is a legislation which is made by any authority which is subordinate to the supreme authority It is enacted under the delegated authority of the sovereign The origin, validity, existence and continuance totally depends on the will of the sovereign authority

29. Subordinate legislation can be classified into the following types: Autonomous Law: W hen a group of individuals recognised or incorporated under the law as an autonomous body , is conferred with the power to make rules and regulation , the laws made by such body fall under autonomous law. For instance , laws made by the bodies like universities , incorporated companies e tc.

30. Judicial Rules: In some countries , Judiciary is conferred with the power to make rules for their administrative procedures. For instance , under the constitution of India , the S upreme C ourt and H igh C ourts have been conferred with such kinds of power .

31. Local Laws: Local bodies are recognized and conferred with the law-making powers. In India, local bodies like Panchayats and Municipal Corporations have have been recognized by the constitution through the 73 rd and 74 th constitutional amendments. The rules and bye-laws enacted by them are examples of local law.

32. Colonial Laws: L aws made by colonial countries for their colonies or the countr ies controlled by them are known as colonial l aw s. For a long time , India was governed by the laws passed by the British Parliament.

33. Laws made by the Executive: T he legislature delegates some of its law - making p ower s t o executive organs which are also termed delegated legislation . The legislative bodies deal with only a fundamental part of the legislation and wide discretion has been given to the executive to fill the gaps .

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