Sources of Law by Isha Baloni (Custom, Precedents, Legislations) | Law Notes | Legal Methods



Ø  Law is originated from religion as well as morality and that’s why there is some sort of interaction between the legal system and religious system in our society.
Ø  Customs and morality had been always dominative role over Law. People generally follows customs and moral values more than law. But in today’s society, life is changing very rapidly and Law is controlling over morality and religion. Law is the only option which is leading to development of society. As our society is multi-communitarian and multi-religious, so law is the only weapon to fight against impartiality.
Ø 
SoGenerally, sources of law are- Custom, Precedents and Legislation.

Customs
Ø Customs may be defined as the social activity which has been followed by since the time immemorial and plays a very significant role in society.
Ø Customs are one of the ancient sources of Law.
Ø It is the root of many laws.
Ø There are two types of sources of law- Principle sources of law and secondary sources of law. Customs falls under principle sources of law.
Ø When a particular activity which is happening again and again in society becomes a custom.
Ø Customs are classified into two types- with sanctions and without sanctions.
Ø Customs without sanctions can be defined as those customs which are enforced by the society or law does not pressurize them on society.
Ø It is also known as ‘positive morality’.
Ø  Customs with sanctions may be defined as which are obligatory and enforceable by the ruling body. These customs are divided into two types- Legal customs and Conventional Customs.
Ø Legal customs are those customs which are enforceable to everyone and violation of these customs leads to punishment by law. There are two aspects of Legal system- Local customs and General Customs.
Ø Local customs are those customs which exists in a particular locality and followed by the people of that locality only.
Ø When communities shift from one place to another, they take their customs with them to that place.
Ø Local customs are also divided into two parts- Geographical local system and personal local system.
Ø General customs are those customs which are not limited to a locality or region, it is being followed all over the nation.
Ø Conventional customs are those customs which are legally binding to the society and has been registered as an implied contract.
Ø There are some characteristics of a valid custom: -
l Antiquity: - Custom should be followed since the time immemorial so that it can be enforceable.
l Reasonable: - A custom should have certain reasons to be enforceable to society.
l Certainty: - Custom should be clear so that it can be easily understood by society and it should not be confusing.
l Consistency: - custom should be so consistent so that two valid customs should not intersect each other in order to values and principles.
l Conformity with the law and public morality: - custom should not oppose law of land and public policy then it will be a valid custom.

Precedents
Ø  Precedents are the rule of law which provides reasoning for the Judge’s decision which sets out the principles for further cases.
Ø  There are two types of precedents: - Binding precedents and persuasive precedents.
Ø  Binding precedent are those types of precedents which are referred to as a legal principle sets by the high courts which are followed by lower courts in a hierarchical way while deciding the same types of cases.
Ø  Features for the binding precedent are: -
l  It must from the same hierarchy of courts.
l  It must from the supreme court- higher in the hierarchy of courts.
Ø  All lower courts are binding to follow the decisions of supreme court while supreme court is binding to follow its previous decisions.
Ø  Persuasive precedents are those precedents which are not enforceable on lower courts.
Ø  It is more based on arguments, one who can convince judge by his arguments, decision will be in his favor.
Ø  Benefits of using precedents as a source of law: -
l It provides stability, fair justice and predictability.
l It increases efficiency.
l It makes the people believe in justice.
Ø  Limitations of using precedent as a custom: -
l  There are large number of cases so, it is very difficult to recognize which one should be considered as precedent.
l  Maximum number of ratios leads to confusion that which ratio should be considered as precedent.

Legislations
Ø  Legislation is derived from two words- Legis and latum. It means to make the law.
Ø  Legislation is mainly classified in two types- Supreme and Subordinate.
Ø  Supreme legislation is that legislation which is adopted by the supreme authority of the state.
Ø  Examples of Supreme legislation are laws made by Parliament or state legislature.
Ø Subordinate legislation is that legislation which is dependent on its continuous existence or validity on superior authority of the state.
Ø  Examples of Subordinate legislation are Delegated legislation.

Ms. Isha Baloni is a Student Editor at MyLawman, who can be reached at [email protected] alert-info


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