MODULE 1 SOURCES OF LAW.pptx

sources of law

1. LAW FOR ENGINEERS INTRODUCTION TO LAW AND LAW MAKING SOURCES OF LAW MS. VAISHALI GUPTA VISITING FACULTY AMITY UNIVERSITY, UTTAR PRADESH

2. SOURCES OF LAW Sources of Law (Salmond) Formal Material Legal Historical

3. FORMAL SOURCES- EXAMPLES STATUTES JUDICIAL PRECEDENTS MATERIAL SOURCES- EXAMPLES LEGAL – legislations, precedents, customary laws, conventional law HISTORICAL – decisions given by foreign courts,

4. Sources of Indian Law Custom Legal Local General Conventional Precedent Binding Persuasive Legislation Primary Legislation Secondary Legislation

5. Requisites of Valid Custom Antiquity Continuity Reasonable Certainty Consistency Peaceful Enjoyment Conformity with statute Not opposed to public morality

6. REQUISITES OF VALID CUSTOM Antiquity: Custom must be in existence from time immemorial Continuity: Should have been continuously in existence from the time immemorial 🞑 Example - Saptapadi

7. REQUISITES OF VALID CUSTO M Reasonable: It must be useful and convenient to the society. Certainty: If a custom is vague or ambiguous it cannot be considered as a valid source of law. Consistency: Difference or inconsistency in custom will amount to different rule of conduct for a given situation Peaceful Enjoyment: enjoyed peaceably without any dispute in a law court or otherwise

8. REQUISITES OF VALID CUSTOM… Conformity with statute law: All customs which are opposed to an existing legislation will be treated as invalid customs 🞑 For example, jalli- kattu, a customary sport of tamil nadu banned by the supreme court because it is not in conformity with constitution Not opposed public morality: All those customs and practices which are opposed to public morality are illegal

9. PRECEDENTS DOCTRINE OF RATIO DECIDENDI Ratio Decidendi is a Latin phrase meaning ‘the reason’ or ‘the rationale for the decision’. The Ratio Decidendi is ‘the point in a case that determines the judgement’ or ‘the principle that the case establishes’. Ratio Decidendi literally means ‘reason for deciding’. DOCTRINE OF OBITER DICTA Obiter dictum is the Latin phrase meaning “other things said”, that is, a remark in a judgment that is “said in passing”. Ratio decidendi is binding, whereas obiter dicta are persuasive only. However, obiter dicta of the Supreme Court are binding on all courts and Tribunals within the territory of India

10. Res Judicata A phrase which has been evolved from a Latin maxim, which stand for ‘the thing has been judged’, meaning there by that the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Stare Decisis The principle by which judges are bound to precedents is known as Stare Decisis (a Latin phrase with the literal meaning of “to stand in the-things-that-have-been-decided”). The doctrine under which courts adhere to precedent on questions of law in order to insure certainty, consistency, and stability in the administration of justice with departure from precedent permitted for compelling reasons (as to prevent the perpetuation of injustice).

11. REASONS FOR CONSIDERING PRECEDENT AS A SOURCE Reasons for Considering Precedent as a Source Final settlement of an Issue Bring certainty Bring flexibility to law Open scope for Judge made law Bring scientific development to law Helps in guiding lower courts

12. LEGISLATION  Word legislation is derived from two Latin words, ‘legis’ and ‘latum’ . The former means law and the latter means to make

13. CLASSIFICATION OF LEGISLATION Supreme Adopted by supreme authority of the state Eg. Parliament or State Legislature Subordina te Dependent for its continued existence and validity on some superior or supreme authority Eg. Delegated Legislation Classification of Legislation

14. THANK YOU