Juris Module 1 Part 2.pptxSourves hvj jvyvh

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1. SOURCES OF LAW

2. WHAT ARE SOURCES OF LAW? Prof. Fuller : Sources relates to the question “Where does the judge obtain the rules by which to decide cases?” The sources of law can be listed as: Statutes Precedents Customs Opinion of experts, morality and equity

3. CLASSIFICATION OF SOURCES Salmond : Classified the sources into – Formal Sources Material Sources Keeton : Classified sources into – Binding sources Persuasive sources

4. CUSTOMS AS A SOURCE OF LAW A habitual course of conduct observed uniformly and voluntarily by the people concerned. Not written and is established by long use and consent of our ancestors. Existence of uniformity of conduct of all persons under like circumstances.

5. DEFINITION OF CUSTOM Halsbury’s Laws of England : A custom is a particular rule which has existed either actually or presumptively, from time immemorial and has obtained the force of Law in particular locality, generally consistent with the principles of common law.

6. KINDS OF CUSTOMS Customs without sanctions Customs with sanctions: Legal Customs General Customs Local Customs 2. Conventional Customs

7. IMPORTANCE OF CUSTOMS It influences the development of legal institutions It provides the law giver and codifier the material out of which law can be fashioned It is the reflection of the will of the people in an uncontaminated form It helps the court where no codified or judicial law exists.

8. ESSENTIALS OF A VALID CUSTOM It must be reasonable The custom must be immemorial antiquity There must be continuity There must be peaceable enjoyment The custom must be certain and definite

9. ESSENTIALS OF A VALID CUSTOM The custom must be consistent with statute law The custom must be supported by public opinion The custom is valid if its observance is compulsory

10. LEGISLATION Salmond : Legislation is that source of law which consists in the declaration of legal rules by a competent authority. Austin and Bentham : any form of law making. The declaration in codified form of rules of law by a competent authority i.e. Parliament, Congress.

11. ADVANTAGES OF LEGISLATION It is abrogative It lays down law in advance It is superior in form It is more efficient

12. CLASSIFICATION OF LEGISLATION Direct/Supreme Legislation : it is which directly proceeds from the supreme or sovereign power in the state. It is Supreme because no authority has jurisdiction to annul, modify or control it. For e.g. laws made by the Parliament. Indirect/ Subordinate Legislation : it is enacted by any other authority than the supreme authority and is capable being controlled by the supreme authority.

13. Kinds of subordinate legislation Autonomous Legislation Municipal Legislation Colonial Legislation Judicial Legislation Executive Legislation

14. OPERATION OF LEGISLATION AND CONSTITUTIONALITY Statutes can be enforced either with prospective or with retrospective effect. Under Article 13 of the Constitution of India if any legislation, rules or regulation violate Part III of the Constitution, it needs to be declared void by the apex court. The presumption is always in favour of the constitutionality of the enactment.

15. PRECEDENTS AS A SOURCE Precedent is judgment or decision of court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy. Salmond : Precedent is a judicial decision which contains in itself a principle. May include mere reported case law to be cited or may include a case law which has binding authority.

16. CLASSIFICATION OF PRECEDENTS ORIGINAL : it is created and applied as a rule of law for the first time. E.g. principles involved in Donogue v. Stevenson. DECLARATORY : One which does not create anything for the first time but merely declares an already existing rule of law.

17. CLASSIFICATION OF PRECEDENTS AUTHORITATIVE : one which judges must follow whether they approve of it or not. E.g. Decisions of superior courts. PERSUASIVE : one which the judges are under no obligation to follow but which they will take into consideration and will attach great weight as it seems to them to deserve. E. g. foreign judgments.

18. DOCTRINE OF STARE DECISIS Promotes uniformity and certainty of legal administration. Shows respect for the opinion of the elders. A settled question and principle should not be disturbed. Individual caprice of the judge is controlled. Tends to place the law in a straight jacket.

19. LEGAL & JUDICIAL PROCESSES Declaratory Theory : Propounded by Sir William Blackstone Judges do not make law; they merely declare Role is to interpret and apply existing legal principles rather than create new ones Law exists independently of judicial decisions

20. LEGAL & JUDICIAL PROCESSES Legislative Theory : Propounded by Justice Oliver Wendell Holmes Jr. & Justice Benjamin Cardozo Judges actively create law, especially when dealing with novel legal issues Judicial decisions can establish new legal principles, modify existing laws, or even override previous interpretations

21. HIERARCHY OF COURTS