Sources of Law – Jurisprudence, Interpretation & General Laws Important Questions
Write a short note on: Classification of the definition of law.
Law is not universal in its nature. Jurists have defined it differently from various points of view. For the purpose of clarity and a better understanding of the nature and meaning of the law, definitions of law can be classified into five broad classes:
Write a short note on the Positivistic definition of law.
Natural law theory exaggerates the relation of law and morality. Positive law is a reaction against particularly that aspect of natural law theory. It insists on a distinction between human law, which they call positive law, and moral and scientific laws.
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, the 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 three elements of the law are:
- Duty and
Kelsen gave a ‘pure theory of law’. According to him, the law is a ‘normative science’.
The legal norms are ‘Ought’ norms as distinct from ‘Is’ norms of physical and natural sciences.
Law does not attempt to describe what actually occurs but only prescribes certain rules. The science of law to Kelson is the knowledge of the hierarchy of normative relations.
Distinguish between: Prohibitive Law & Permissive Law.
Prohibitive Law: A prohibitive law requires negative conduct.
Example: Law prohibiting the carrying of a concealed weapons or running a lottery are prohibitive laws.
Permissive Law: A permissive law is one that neither requires nor forbids action, but allows certain conduct on the part of an individual if he desires to act.
Example: Passport and Visa.
Write a short note on: Sources of Law.
The modern Indian law as administered in courts is derived from various sources and these sources fall under the following two heads:
(A) Principle sources of Indian law:
- Customs or Customary Law
- Judicial Decision or Precedents
- Statutes or Legislation
- Personal Law
(B) Secondary source of Indian Law:
- Justice, Equity & Good Conscience
- English Law
What do you understand by the term custom? Describe the reasons for the binding force of customs.
(a) A custom is a rule which is a particular family or district or particular sect, class, or tribe has from long usage obtained the force of law.
(b) Custom is the most ancient of all the sources of law and has held the most important place in the past.
(c) It was felt that a particular way of doing things was more convenient than others. When the same thing was done again and again in a particular way, it assumed the form of custom.
(d) Customs have played an important role in molding the ancient Hindu
“Custom is the source of law, provided it satisfies a certain minimum requirement”. Elucidate.
A custom is a rule which is a particular family or district or particular sect, class or tribe has from long usage obtained the force of law.
Requisites of a valid custom: A custom will be valid at law and will have a binding force only if it fulfills the following essential conditions, namely:
Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient. A custom, in order that it may be legal and binding, must have been used so long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is no good custom.
Certainty: The custom must be certain and definite, and must not be vague and ambiguous.
Reasonableness: A custom must be reasonable. It must be useful and convenient to society. A custom is unreasonable if it is opposed to the principles of justice, equity, and good conscience.
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.
Conformity with the 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.
The unanimity of opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.
Peaceable enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.
Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.
Explain Precedent as a source of law.
Precedent literally means a rule followed or a principle applied previously by a competent authority under similar facts and circumstances. If a previous decision by a Court is taken as a basis or source for deciding the case under similar facts and circumstances, it is called judicial precedent.
In general use, the term “precedent” means some set pattern guiding future conduct. In the judicial held, it means the guidance or authority of past decisions of the Courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents.
The rule that a court decision becomes a precedent to be followed in similar cases is known as the doctrine of Stare Decisis. [Stare Decisis, means “, to stand by decided matters ”]
The practice of following precedents creates confidence in the minds of litigants. Law becomes certain and known and that in itself is a great advantage. Administration of justice becomes equitable and fair.
Discuss the various types of precedents.
Various types of precedents are as follows:
- An original precedent is one that creates and applies a new rule.
- The number of original precedents is small.
- In the case of an original precedent, it is the law for the future because it is now applied.
- Their importance is very great.
- A declaratory precedent is one that is merely the application of an already existing rule of law.
- Declaratory precedents merely follow the original precedents.
- Declaratory precedents are numerous. A declaratory precedent is as good a source of law as an original precedent.
The legal authority of both declaratory and original precedents is exactly the same.
- 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.
- In India, the decisions of one High Court are only persuasive precedents in the other High Courts.
- The rulings of the English and American Courts are persuasive precedents only.
- Obiter dicta also have only persuasive value.
Absolutely Authoritative Precedents:
1. An authoritative precedent is one that judges must follow whether they approve of it or not. Thus, decisions of the Supreme Court are a binding force on High Courts and District Courts.
2. 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.
3. Unlike a persuasive precedent which is merely historical, and authoritative precedent is a legal source of law.
Conditionally Authoritative Precedents:
4. 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.
5. The Court is entitled to disregard a decision if it is a wrong one ie. contrary to law and reason.
Example: The decision of a Single Judge of the High Court is absolutely authoritative so far as the subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a Division Bench of the same High Court.
Write a short note on Doctrine of Stare Decisis. [Dec 2019 (5 Marks)]
Stare Decisis means ‘to stand by decided cases.
The doctrine of Stare Decisis means, “adhere to the decision and do not unsettle things which are established”. In simple words, the principle means that like cases should be decided alike.
Important points relating to the doctrine of Stare Decisis:
- This doctrine brings certainty and uniformity to the law.
- As per the stare decisis doctrine, a principle of law that has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.
- The doctrine of Stare Decisis is based on public policy and expediency.
- The doctrine of Stare Decisis should be strictly adhered to by the Courts, but it is not universally applicable. Certain exceptions do exist for the doctrine.
For example, Supreme Court may change its earlier decision.
- Doctrine should not be regarded as a rigid and inevitable doctrine that must be applied at the cost of justice.
Distinguish between: ‘Ratio Decidendi’ & ‘Obiter Dictum’. [Dec 2018 (4 Marks)]
The decision or judgment of a judge may fall into two parts: the ratio decidendi (reason for the decision) and obiter dictum (something said by the way).
Ratio Decidendi: The ratio decidendi of a case is the principle of law on which a decision is based. When a Judge delivers judgment in a case he outlines the facts which he finds have been proved on the evidence. Then he applies the law to those facts and arrives at a decision, for which he gives the reason (ratio decidendi).
Thus, the underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi
Obiter Dictum: The Judge may go on to speculate about what his decision would or might have been if the facts of the case had been different. This is an obiter dictum
In simple words, the obiter dictum is nothing but the supplementary opinion by a judge that is not essential to the actual decision.
The binding part of a judicial decision is the ratio decidendi An obiter dictum is not binding in later cases because it was not strictly relevant to the matter in issue in the original case. However, an obiter dictum may be of persuasive value in later cases.
It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the obiter dictum.
Critically examine the statement by Austin that “Law is the command of the sovereign”. [Dec 2018 (5 Marks)]
According to Austin law is the ‘command of the 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).
Command: It is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties – the commander (political superior) and the commanded (political inferior).
Sovereign: In Austin’s theory, the sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws.
Sanction: Is the evil consequence that follows on the violation of a command. To identify a law, the magnitude of the sanction is not relevant but the absence of sanction disentitles an expression of the sovereign from being a law in the Austinian sense. The sanction should not also be confused with a reward that might be on offer if given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.
Critically examine Roscoe Pound’s theory of interests. [June 2019 (5 Marks)]
Roscoe Pound was a leading jurist of the 20th century and a distinguished American Legal Scholar.
He drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering.
According to Roscoe Pound, for determining the scope and the subject matter of the legal system, the following five things are required to be done:
- Preparation of an inventory of interests and their classification.
- Selection of the interests which should be legally recognized.
- Demarcation of the limits of securing the interest so selected.
- Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and
- Evolution of the principles of valuation of interests.
Roscoe Pound’s classification of interest is as follows:
1. Individual Interest: These are claims or demands determined from the standpoint of an individual’s life and concern. They are
(a) Interest of personality: This includes physical integrity, freedom of will, honor, and reputation, privacy, and freedom of conscience.
(b) Interest in domestic relations: This includes relationships of parents, children, husbands, and wives.
(c) Interest of substance: This includes interests of property, freedom of as¬sociation, freedom of industry and contract, continuity of employment, inheritance, and testamentary succession.
2. Public Interest: These interests are asserted by individuals from the standpoint of political life. They are –
(a) Interests of the state as a juristic person: It includes integrity, freedom of action and honor of the state’s personality, claims of the politically organized society as a corporation to property acquired and held for corporate purposes.
(b) Interests of the state as guardian of social interest.
3. Social Interests: These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society. Social interests include:
- Social interest in general security: This includes general safety, peace and order, general health, security of acquisition, and transaction.
- Social interest in the security of social institutions such as domestic, religious, political, and economic institutions.
- Social interest in general morals like laws dealing with prostitution, gam¬bling, bigamy, drunkenness.
- Social interest in the conservation of social resources like natural and human resources. This social interest clashes to some extent with the individual interest in dealing with one’s own property as on, please.
- Social interest in general progress. It has three aspects – economic, political & cultural
- Social interest in individual life. It involves self-assertion, opportunity, and conditions of life.
Society is interested in individual life because individuals are its building blocks. Having given various interests recognized by law, Roscoe Pound applied himself to figure out to balance competing interests. He said that interests should be weighed on the same plane.
According to him, one cannot balance an individual interest against a social interest, since that very way of stating them may reflect a decision already made. Thus all the interests should be transferred to the same place, most preferably to the social plane, which is the most general, for any meaningful comparison.
Write Short Notes on
1. John Simonds Theory
2. Hans Kelson’s Pure theory of Law
3. Jeremy BenthanTs theory
- A law professor in New Zealand who later also served as a judge of the Supreme Court of New Zealand.
- Salmond differentiated between a law’ and ‘law’ and said that the former refers to the concrete and the latter to the abstract.
- In its abstract application, we speak of civil law, the law of defamation, criminal law, etc. Similarly, we use the phrases law and order, Law and justice, courts of law. In its concrete sense, on the other hand.
- According to Sahnond law is the body of principles that are recognized and applied by the state 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. ‘Lawn 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.
- Salmond says that human experience has made it clear that some form of compulsion is required to maintain justice.
- Salmond argued that the administration of justice was the primary task of a state and the laws were made to achieve that objective.
- 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.
- Gradually from various sources-precedent, custom, statute there is a collected body of fixed principles which the courts apply to the exclusion of their private judgment.
- Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.
Criticism of Salmond’s theory:
- Salmond’s assertion that justice is the end and law is only a medium to realize it does not always hold true because there are a number of laws that can be called ‘unjust’.
- The pursuit of justice is not the only purpose of the law, the law of any period serves many ends and these ends themselves change with the passage of time.
- There is a contradiction when Salmond says that the purpose of the law is the administration of justice but limits ‘jurisprudence’ to the study of the ‘first principles of civil law of a national legal system because justice is a universal concept, the jurisprudential analysis of law should not be constrained by national boundaries.
2. Hans Kelson:
- He was an Austrian philosopher and jurist who is known for his ‘Pure Theory of Law’.
- Kelsen described the law as a ‘normative science’ as distinguished from natural sciences which are based on cause and effect, such as the 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 preferred to call it ‘norm’.
- According to Kelsen, ‘law is a primary norm which stipulates sanction’.
- According to Kelsen, ‘norm (sanction) rules forbidding or prescribing a certain behavior’.
- Parliament and the President, derive their authority from a normie., the Constitution. As to the question from where does the Constitution derives its validity there is no answer and, therefore, it is the Grundnorm, § according to Kelsen’s conception of the pure theory of law.
Criticism of Kelsen’s Pure Theory:
- It is difficult to trace ‘Grundnorm’ in every legal system. Also, there is no rule or yardstick to measure the effectiveness of Grundnorm.
- The Pure Theory also did not give the timeframe for which the effective¬ness should hold for the requirement of validity to be satisfied.
- Kelsen’s theory ceases to be ‘pure’ the moment one tries to analyze the Grundnorm because then one will have to draw upon subjects other than law like sociology, history, and morality.
- International law does not sit well with Kelsen’s Pure theory.
3. Jeremy Bentham:
- He was the pioneer of analytical jurisprudence in Britain.
- Bentham was of the initial contributors to the function that laws should perform in a society. He claimed that nature has placed the man under the command of two sovereigns- pain and 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.
Bentham said that every law may be considered in eight different respects:
- Source: The source of law is the will of the sovereign, who may conceive laws which he personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws to be issued in future by subordinate authorities.
- Subjects: These may be persons or things. Each of these may be active or passive subjects, ie., the agent with which an act commences or terminates.
- Objects: The goals of a given law are its objects.
- Extent: Direct extent means that law covers a portion of land on which acts have their termination; indirect extent refers to the relation of an actor to a thing.
- Aspects: Every law has a ‘directive’ and a ‘sanction part. The former concerns the aspects of the sovereign will towards an act-situation and the latter concerns the force of law. The four aspects of the sovereign will be command, prohibition, non-prohibition, and non-command, and the whole range of laws are covered under it. These four aspects are related to each other by opposition and concomitancy.
- Force: The motivation to obey a law is generated by the force behind the law.
- Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the judges cure the evil (compensation), stop the evil, or prevent future evil.
- Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises the problem of discovering the will from the expression.
Criticism of Bentham’s theory of law:
- As per Bentham, all laws have to be either command or permission, it does not take proper account of laws conferring power like the power to make contracts, create a title, etc.
- Bentham did not give fair treatment to custom as a source of law. He said customs could never be ‘complete’.
- Bentham’s theory did not allow for judge-made laws and hoped that such laws would be gradually eliminated by having ‘complete laws’.
- To judge an action according to the pleasure-pain criterion is to judge it subjectively. The theory did not provide how a subjective criterion of pain and pleasure can be transmuted into an objective one.
- It is not always true that an increase in the happiness of a certain segment of society will lead to an increase in the overall happiness level because it might be associated with a diminution in the happiness of some other rival section of the society.