Jurisprudence, Interpretation and General Laws Sources of Law

1 Sources of Law

INTRODUCTION

Law is the command of the sovereign, Law is an instrument to regulate human behaviour, be it social
life or business life.

Law is a system of rules that are created and enforced through social or governmental institutions to
regulate behaviour. Law is a system that regulates and ensures that individuals or a community adhere to
the will of the state. The nature and meaning of law has been described by various jurists. However,
there is no unanimity of opinion regarding the true nature and meaning of law. For the purpose of clarity
and better understanding of the nature and meaning of law, we may classify various definitions into five
broad classes:

Nature
School

Realistic Positivistic
Definition of Definition of
Law
Various Law
Definition of
Law

Sociologial Historical
Definition of Definition of
Law Law

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1. Natural School

Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.
“Justice” is the main and guiding element of law.

In other words, the law consists of rules recognised and acted upon by the courts of Justice. It may be
noted that there are two main factors of the definition. First, that to understand law, one should know its
purpose: Second, in order to ascertain the true nature of law, one should go to the courts and not to the
legislature.

Ulpine defined Law as “the art or science of what is equitable and good."
Cicero said that Law is “the highest reason implanted in nature."
Justinian’s Digest defines Law as “the standard of what is just and unjust.”

2. Positivistic Definition of Law

According to John Austin, “Law is the aggregate of rules set by man as politically superior, or
sovereign, to men as political subject.” In other words, law is the “command of the sovereign”. It
obliges a certain course of conduct or imposes a duty and is backed by a sanction. Thus, the command,
duty and sanction are the three elements of law.

3. Historical Definition of Law

 That law is a matter of unconscious and organic growth. Therefore, law is found and not made.
 Law is not universal in its nature. Like language, it varies with people and age.

 Custom not only precedes legislation but it is superior to it. Law should always conform to the
popular consciousness.

 Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important
than the legislator.

4. Sociological Definition of Law

Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s
power of constraint". There are three essentials of this definition. First, in this definition law is treated as
only one means of social control. Second, law is to serve social purpose. Third, it is coercive (force) in
character.

5. Realist Definition of Law

Realists define law in terms of judicial process. According to Holmes, “Law is a statement of the
circumstances in which public force will be brought to bear upon through courts.” Law is nothing but a
mechanism of regulating the human conduct in society so that the harmonious co-operation of its
members increases and thereby avoid the ruin by coordinating the divergent conflicting interests of
individuals and of society which would, in its turn, enhance the potentialities and viability of the society
as a whole.

Separate rules and principles are known as ‘laws’. Such laws may be mandatory, prohibitive or
permissive.

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 A mandatory law calls for affirmative act, as in the case of law requiring the payment of taxes.

 A prohibitive law requires negative conduct, as in the case of law prohibiting the carrying of
concealed weapon or running a lottery.

 A permissive law is one which neither requires nor forbids action, but allows certain conduct on the
part of an individual if he desires to act.

How Laws are made effective ??

 By administering some form of punishment

 By preventing disobedience

 By requiring one, in some instances, to complete an obligation he has failed to perform

 By requiring damages to be paid for an injury due to disobedience

SIGNIFICANCE OF LAW

 Law is not static. As circumstances and conditions in a society change, laws are also changed to fit
the requirements of society. At any given point of time the prevailing law of a society must be in
conformity with the general statements, customs and aspirations of its people.

 The object of law is order which in turn provides hope of security for the future. Law is expected to
provide socio-economic justice and remove the existing imbalances in the socio-economic structure
and to play special role in the task of achieving various goals enshrined in our Constitution.

SOURCES OF INDIAN LAW

The modern Indian law as administered in courts is derived from various sources and these sources fall
under the following two heads:

 Principle Sources of Indian Law

 Secondary Sources of Indian Law

PRINCIPLE SOURCES OF INDIAN LAW

(i) Customs or Customary Law: Custom is the most ancient of all the sources of law and has held the
most important place in the past, though its importance is now diminishing with the growth of
legislation and precedent. The customs may be divided into two classes:

– Customs without sanction: are those customs which are non-obligatory and are observed due to the
pressure of public opinion. These are called as “positive morality”.

– Customs having sanction: are those customs which are enforced by the State. It is with these customs
that we are concerned here. These may be divided into two classes:

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(i) Legal Customs: These customs operate as a binding rule of law. They have been recognised and
enforced by the courts and therefore, they have become a part of the law of land. Legal customs are
again of two kinds:

(a) Local Customs: Local custom is the custom which prevails in some definite locality and constitutes a
source of law for that place only. Thus, local customs may be divided into two classes:

– Geographical Local Customs

– Personal Local Customs

(b) General Customs: A general custom is that which prevails throughout the country and constitutes
one of the sources of law of the land.

(ii) Conventional Customs: These are also known as “usages”. These customs are binding due to an
agreement between the parties, and not due to any legal authority independently possessed by them.
Before a Court treats the conventional custom as incorporated in a contract, following conditions must
be satisfied:

– It must be shown that the convention is clearly established and it is fully known to the contracting
parties. There is no fixed period for which a convention must have been observed before it is recognised
as binding.

– Convention cannot alter the general law of the land.

– It must be reasonable.

Customs or
Customary
Law

Customs
Customs with
without
sanction
sanction

Legal Custom Conventional

General
Local Custom
Custom

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Requisites of a Valid Custom

(i) Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

(ii) Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

(iii) Reasonableness: A custom must be reasonable. It must be useful and convenient to the society.

(iv) Compulsory Observance: A custom to be valid must have been continuously observed without any
interruption from times immemorial and it must have been regarded by those affected by it as an
obligatory or binding rule of conduct.

(v) Conformity with Law and Public Morality: A custom must not be opposed to morality or public
policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and
abrogated by a statute, it is inapplicable.

(vi) Unanimity of Opinion: The custom must be general or universal. If practice is left to individual
choice, it cannot be termed as custom.

(vii) Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law
court or otherwise.

(viii) Consistency: There must be consistency among the customs. Custom must not come into conflict
with the other established customs.

(ii) Judicial Decision or Precedents

Judicial precedents are an important source of law. They have enjoyed high authority at all times and in
all countries. This is particularly so in the case of England and other countries which have been
influenced by English jurisprudence. The principles of law expressed for the first time in court decisions
become precedents to be followed as law in deciding problems and cases identical with them in future.
The rule that a court decision becomes a precedent to be followed in similar cases is known as doctrine
of stare decisis.

High Courts

(i) The decisions of High Court are binding on all the subordinate courts and tribunals within its
jurisdiction.

The decisions of one High Court have only a persuasive value in a court which is within the jurisdiction
of another High Court. But if such decision is in conflict with any decision of the High Court within
whose jurisdiction that court is situated, it has no value and the decision of that High Court is binding on

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the court. In case of any conflict between the two decisions of co-equal Benches, generally the later
decision is to be followed.

(ii) In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as
Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on
a Smaller Bench.

(iii) The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High
Court is not binding on the other High Courts and have persuasive value only.

(iv) The Supreme Court is the highest Court and its decisions are binding on all courts and other judicial
tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the
Supreme Court shall be binding on all courts within the territory of India. The words “law declared”
includes an obiter dictum provided it is upon a point raised and argued (Bimladevi v. Chaturvedi, AIR
1953 All. 613). However, it does not mean that every statement in a judgement of the Supreme Court
has the binding effect. Only the statement of ratio of the judgement is having the binding force.

Kinds of Precedents

(i) Declaratory and Original Precedents:

 A declaratory precedent is one which is merely the application of an already existing rule of law. A
declaratory precedent is as good a source of law as an original precedent.

 An original precedent is one which creates and applies a new rule of law. In the case of a declaratory
precedent, the rule is applied because it is already a law. In the case of an original precedent, it is law
for the future because it is now applied.

 In the case of advanced countries, declaratory precedents are more numerous. The number of original
precedents is small but their importance is very great. They alone develop the law of the country. The
legal authority of both is exactly the same.

(ii) Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but
which they will take into consideration and to which they will attach great weight as it seems to them to
deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical
source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the
other High Courts.

(iii) Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow
whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether
excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge
considers it wrong. An authoritative precedent is a legal source of law.

Every court in India is absolutely bound by the decisions of courts superior to itself. The subordinate
courts are bound to follow the decisions of the High Court to which they are subordinate. A single judge
of a High Court is bound by the decision of a bench of two or more judges. All courts are absolutely
bound by decisions of the Supreme Court.

(iv) Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which,

though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain
circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and
reason. In India, for instance, the decision of a single Judge of the High Court is absolutely authoritative

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so far as subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a
Division Bench of the same High Court.

Doctrine of Stare Decisis

The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are
established”. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under
the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally
is binding on the courts and should be followed in similar cases. In simple words, the principle means
that like cases should be decided alike. This rule is based on public policy and expediency.

Ratio Decidendi

When we say that a judicial decision is binding as a precedent, what we really mean is that a rule or
principle formulated and applied in that decision must be applied when similar facts arise in future. This
rule or principle is the ratio decidendi which is at the centre of the doctrine of precedent. The expression
ratio decidendi has different meanings. The first meaning which is the literal translation of the
expression is ‘the reason for deciding’. Ratio decidendi is as ‘the rule of law proffered by the judge as
the basis of his decisions.

Where an issue requires to be answered on principles, the principles which are deduced by way of
abstraction of the material facts of the case eliminating the immaterial elements is known as ratio
decidendi and such principle is not only applicable to that case but to other cases also which are of
similar nature.

It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the
obiter dictum

Obiter Dicta

The literal meaning of this Latin expression is “said by the way”. The expression is used especially to
denote those judicial utterances in the course of delivering a judgement which taken by themselves,
were not strictly necessary for the decision of the particular issue raised. These statements thus go
beyond the requirement of a particular case and have the force of persuasive precedents only. The
judges are not bound to follow them although they can take advantage of them. They sometimes help the
cause of the reform of law.

(iii) Statutes or Legislation

Legislation is that source of law which consists in the declaration or promulgation of legal rules by an
authority duly empowered by the Constitution in that behalf. It is sometimes called Jus scriptum (written
law) as contrasted with the customary law or jus non-scriptum (unwritten law). Statute law or statutory
law is what is created by legislation, for example, Acts of Parliament or of State Legislature. Legislation
is either supreme or subordinate (delegated).

Supreme Legislation is that which proceeds from the sovereign power in the State or which derives its
power directly from the Constitution. It cannot be repealed, annulled or controlled by any other
legislative authority.

Subordinate Legislation is that which proceeds from any authority other than the sovereign power. It is
dependent for its continued existence and validity on some superior authority. The Parliament of India
possesses the power of supreme legislation.

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In our legal system, Acts of Parliament and the Ordinances and other laws made by the President and
Governors in so far as they are authorised to do so under the Constitution are supreme legislation while
the legislation made by various authorities like Corporations, Municipalities, etc. under the authority of
the supreme legislation are subordinate legislation.

(iv) Personal Law

In many cases, the courts are required to apply the personal law of the parties where the point at issue is
not covered by any statutory law or custom. In the case of Hindus, for instance, their personal law is to
be found in:

(a) The Shruti which includes four Vedas.

(b) The ‘Smritis’ which are recollections handed down by the Rishi’s or ancient teachings and precepts
of God, the commentaries written by various ancient authors on these Smritis. There are three main
Smritis; the Codes of Manu, Yajnavalkya and Narada.

The personal law of Mohammedans is to be found in:–

(a) The holy Koran.

(b) The actions, percepts and sayings of the Prophet Mohammed which though not written during his
life time were preserved by tradition and handed down by authorised persons. These are known as
Hadis.

(c) Ijmas, i.e., a concurrence of opinion of the companions of the Prophet and his disciples.

(d) Kiyas or reasoning by analogy. These are analogical deductions derived from a comparison of the
Koran, Hadis and Ijmas when none of these apply to a particular case.

(e) Digests and Commentaries on Mohammedan law, the most important and famous of them being the
Hedaya which was composed in the 12th century and the Fatawa Alamgiri which was compiled by
commands of the Mughal Emperor Aurangzeb Alamgiri.

Mohammedans are governed by their personal law as modified by statute law and custom in all matters
relating to inheritance, wills, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship
and pre-emption.

SECONDARY SOURCE OF INDIAN LAW

(i) Justice, Equity and Good Conscience

In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the
decision of a case what is known as “justice, equity and good conscience”, which may mean the rules of
English Law in so far as they are applicable to Indian society and circumstances.

In its modern version, justice, equity and good conscience as a source of law, owes its origin to the
beginning of the British administration of justice in India. The Charters of the several High Courts
established by the British Government directed that when the law was silent on a matter, they should
decide the cases in accordance with justice, equity and good conscience. Justice, equity and good
conscience have been generally interpreted to mean rules of English law on an analogous matter as
modified to suit the Indian conditions and circumstances. The Supreme Court has stated that it is now

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well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases
on the principles of justice, equity and good conscience.

(ii) Sources of English Law: The chief sources of English law are:

(a) Common Law: The Common Law, in this context is the name given to those principles of law
evolved by the judges in making decisions on cases that are brought before them. These principles have
been built up over many years so as to form a complete statement of the law in particular areas.

(b) Law Merchant: The Law Merchant is the most important source of the Merchantile Law. Law
Merchant means those customs and usages which are binding on traders in their dealings with each
other. But before a custom can have a binding force of law, it must be shown that such a custom is
ancient, general as well as commands universal compliance. In all other cases, a custom has to be
proved by the party claiming it.

(c) Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor
written law, but the imperative dictates of conscience and which had been set forth and developed in the
Courts of Chancery. The procedure of Common Law Courts was very technical and dilatory. Action at
Common Law could be commenced by first obtaining a writ or a process.

The Equity Courts had their separate existence from the Common Law Courts in England until the
passing of the Judicature Act of 1873, when the separate existence of such courts was abolished and all
High Courts were empowered to grant either or both the remedies (Common Law as well as Equity)
according to the circumstances of each case.

(d) Statute Law: “Statute law is that portion of law which is derived from the legislation or enactment of
Parliament or the subordinate and delegated legislative bodies.” It is now a very important source of
Mercantile Law. A written or statute law overrides unwritten law, i.e., both Common Law and Equity.

MERCANTILE OR COMMERCIAL LAW - Sources of Mercantile Law

Law
Merchant

Principles
Sources of Statute
Mercantile
of Equity Law
Law

Common
Law

Mercantile Law in India

Prior to 1872, mercantile transactions were regulated by the law of the parties to the suit (i.e., Hindu
Law, Mohammedan Law etc.). In 1872, the first attempt was made to codify and establish uniform
principles of mercantile law when Indian Contract Act, 1872 was enacted. Since then, various Acts have

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been enacted to regulate transactions regarding partnership, sale of goods, negotiable instruments, etc.
The main sources of Indian Mercantile Law are:

1. English Mercantile Law: The Indian Mercantile Law is mainly an adaptation of English Mercantile
Law. However, certain modifications wherever necessary, have been incorporated in it to provide for
local customs and usages of trade and to suit Indian conditions.

2. Acts enacted by Indian Legislature: The Acts enacted by the Indian legislature from time to time
which are important for the study of Indian Mercantile Law include, (i) The Indian Contract Act,
1872,(ii) The Sale of Goods Act, 1930, (iii) The Indian Partnership Act, 1932, (iv) The Negotiable
Instruments Act, 1881, (v) The Arbitration and Conciliation Act, 1996, (vi) The Insurance Act, 1938.

3. Judicial Decisions: Judges interpret and explain the statutes. Whenever the law is silent on a point,
the judge has to decide the case according to the principles of justice, equity and good conscience. It
would be accepted in most systems of law that cases which are identical in their facts, should also be
identical in their decisions. That principle ensures justice for the individual claimant and a measure of
certainty for the law itself.

4. Customs and Trade Usages: Most of the Indian Law has been codified. But even then, it has not
altogether done away with customs and usages. Many Indian statutes make specific provisions to the
effect that the rules of law laid down in a particular Act are subject to any special custom or usages of
trade.

JURISPRUDENCE

The word Jurisprudence is derived from the word ‘juris’ meaning law and ‘prudence’ meaning
knowledge. Jurisprudence is the study of the science of law. The study of law in jurisprudence is not
about any particular statute or a rule but of law in general, its concepts, its principles and the
philosophies underpinning it.

Jurisprudence also improves the use of law by drawing upon insights from other fields of study.
Different jurists/ legal philosophers have used the term in different ways. The meaning of
‘jurisprudence’ has changed over a period of time as the boundaries of this discipline are not rigid. This
amorphous nature is a subject of intense controversy among the scholars. But as dissatisfaction with
their conception of law grew in the later years and alternative conceptions were offered, the term
‘jurisprudence’ came to acquire a broader meaning but a concrete delineation of the boundary of the
subject has proved elusive.

Howsoever the term jurisprudence is not defined; it remains a study relating to law. The word ‘law’
itself is used to refer more than one thing. Hence one of the first tasks of jurisprudence is to attempt to
throw light on the nature of law. However, various theorists define law in their own ways and this leads
to a corresponding jurisprudential study. For example, law has two fold aspect: it is an abstract body of
rules and also a social machinery for securing order in the community. However, the various schools of
jurisprudence, instead of recognizing both these aspects, emphasize on one or the other.

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Analytical jurisprudence concentrates on abstract theory of law, trying to discover the elements of
pure science which will place jurisprudence on the sure foundation of objective factors which will be
universally true, not on the shifting sands of individual preference, of particular ethical or sociological
views.

Sociological jurisprudence highlights the limitations of pure science of law and says that since the very
purpose for the existence of law is to furnish an answer to social problems, some knowledge of these
problems is necessary if one seeks to understand the nature of law.

The teleological school of jurisprudence emphasizes that a mere collection of facts concerning social
life is of no avail. Law is the product of human reason and is intimately related to the notion of purpose.
Hence, this school seeks to find the supreme ends which law should follow.

Legal Theory

Legal theory is a field of intellectual enterprise within jurisprudence that involves the development and
analysis of the foundations of law. Two most prominent legal theories are the normative legal theory
and the positive legal theory. Positive legal theory seeks to explain what the law is and why it is that
way, and how laws affect the world, whereas normative legal theories tell us what the law ought to be.
There are other theories of law like the sociological theory, economic theory, historical theory, critical
legal theory as well.

Legal Theory Particulars of Theory

given by
John Austin Law is the command of sovereign that is backed by sanction. Austin has
propagated that law is a command which imposes a duty and the failure to
fulfill the duty is met with sanctions (punishment). Thus Law has three
main features:

1. It is a command.
2. It is given by a sovereign authority.
3. It has a sanction behind it.
Roscoe Pound He emphasized taking into account of social facts in making, interpretation
and application of laws. The goal of this theory was to build such a
structure of society where the satisfaction of maximum of wants was
achieved with the minimum of friction and waste. According to him, any
legal order to be successful in structuring an efficient society, there has to
be:

1. A recognition of certain interests- individual, public and social.

2. A definition of the limits within which such interest will be legally
recognized and given effect to.
3. Securing of those interests within the limits as defined.
John William Law is the body of principles which are recognized and applied by the state
Salmond in the administration of justice. His other definition said that law consists of
a set of rules recognized and acted on in courts of justice. ‘Law’ in this
definition is used in its abstract sense. The constituent elements of which
the law is made up are not laws but rules of law or legal principles.

He argued that the administration of justice was the primary task of a state
and the laws were made to achieve that objective. Administration of justice

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was thus antecedent to the laws. Laws thus are secondary, accidental,
unessential. Law consists of the pre-established and authoritative rules
which judges apply in the administration of justice, to the exclusion of their
own free will and discretion.
He further said that the administration of justice is perfectly possible
without laws though such a system is not desirable. A court with an
unfettered discretion in the absence of laws is capable of delivering justice
if guided by equity and good conscience.
Hans Kelsen He described law as a “normative science’ as distinguished from natural
sciences which are based on cause and effect, such as law of gravitation.
The laws of natural science are capable of being accurately described,
determined and discovered whereas the science of law is knowledge of
what law ought to be. Like Austin, Kelsen also considered sanction as an
essential element of law but he prefered to call it ‘norm’. According to
Kelsen, ‘law is a primary norm which stipulates sanction’.
Jeremy Bentham He said that concept of law is an imperative one. He claimed that nature
has placed man under the command of two sovereigns- pain and pleasure.
‘Pleasure’ in Bentham’s theory has a somewhat large signification,
including altruistic and obligatory conduct, the ‘principle of benevolence’;
while his idea of ‘interest’ was anything promoting pleasure. The function
of laws should be to bring about the maximum happiness of each individual
for the happiness of each will result in the happiness of all. The justification
for having laws is that they are an important means of ensuring happiness
of the members of community generally. Hence, the sovereign power of
making laws should be wielded, not to guarantee the selfish desires of
individuals, but consciously to secure the common good.

Let us Recapitulate

Sources of Law

Principle Sources of Law Secondary Sources of Law

1. Customs or Customary 1. Justice, Equity and

Law. Good Conscience.
2. Judicial Decisions or 2. Sources of English Law
Precedents i. Common Law
3. Statues or Legislations ii. Merchant Law
4. Personal Law e.g., iii. Principle of Equity
Hindu and iv. Statue Law
Mohammedan Law etc.

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