Do the Judges make Law?

There are two contrary views on the issue. First theory says that judges only declare the existing law while the other theory is of the opinion that judges do make law. The theories are:

Declaratory Theory, Judges declare law:

The theory suggests that judges while delivering judgments do not make law but declare them. They discover a law and then declare it. Blackstone, the great exponent of this view, says, ‘A judge is sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law but to maintain and explain the old one jus di cere et non-jus dare.’  Judges are law-finders rather than law-makers.

Dr. Carter, a strong supporter of Blackstone’s view, says ‘the judges were the discoverers and not the lawmakers of the law. If what the judges did was to declare a law not before existing, the subjection by them of one of the parties to liability for an infraction of the law in a transaction occurring before the existence of law would be an indefeasible outrage.’ Carter suggested that decisions merely declare the existing law.

In Rajeshwar Prasad v. The State of West Bengal,[i]  Justice Hidayatullah stated: “No doubt, the law declared by this court (Supreme Court) binds Courts in India but it should always be remembered that this Court does not enact.”

This theory that judges declare the law and not make it has been highly criticized too. Bentham and Austin both rejected it. Bentham pointed out about this theory, “it is a willful falsehood having for its object the stealing of legislative power by and hands which could not or does not openly claim it.” Austin said that the theory is a childish fiction employed by our judges that Common Law is not made by them; but is a miraculous something made by nobody, existing, I suppose, from eternity and merely declared from time to time by the judges.

Original Law Making Theory, Judges make law:

According to this theory, Judges make law in the same sense in which the legislative body of the State does. This theory owes its existence in English Law where Judges have played a significant role in molding the law as Common Law is also known as the Judge-made law. Prof. Dicey says that a large part and as many would add the best part of the law of England is judge-made law, that is to say, consist of rules to be collected from the judgments of the court. Radcliffe states “There was never a more sterile controversy than that upon the question whether a judge makes law. Of course, he does. How can he help it.― Judicial Law is always a reinterpretation of principles in the light of a new combination of facts. Judges do not reverse principles, one well established, they do modify them, extend them, restrict them and even deny their application to the combination in hand.”[ii]

In Keshwanand Bharti v. State of Kerala[iii], the following observations of Justice Homes were approved: “I recognize without hesitation that judges do, must legislate, but they can do so only interestless; they are confined from molar to molecular motions.”

The application of both the theories depends on the legal system of the State. In common law states, the judges play a vital role in lawmaking while in states where the law is codified, they are less relevant and only interpret laws.

Merits of the Doctrine:

1. Shows respect for the opinion of one’s ancestors.
2. Based on custom and that’s why they get the support of the general public.
3. It brings certainty and solidarity in law.
4. Precedents are based on practicality and it fulfills the needs of the law more suitably.
5. Precedents provide ease to judges, lawyers as well as the general public as it saves expense and avoid delay and inconvenience to them.

Demerits of the Doctrine:

1. The increasing number of cases have brought the possibility of overlooking authorities.
2. The conflicting decisions of superior courts did not help lower court and put them in dilemma.
3. The development of law depends on the litigation i.e. if there is no litigation on an important issue, the law will remain unadjudicated.
4. Due to this doctrine, sometimes, erroneous decisions are settled as law for a long time.

Conclusion:

The courts are performing a valuable role in recent times. They are not only deciding cases but also actively participating in social upliftment. The rule of precedent has established its place in Indian judiciary. It brings integrity and uniformity in law and legal system. The only need of the time is to save energy in finding out the law from the rapidly multiplying volumes of reports and avoid the constant danger of overlooking authorities.

[i] AIR 1965 SC 1887, 1891

[ii] Radcliffe quoted in Robert Stevens, Law & Politics, The House of Lords as a Judicial Body (p. 44).

[iii] AIR 1973 SC 1461

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
3. Singh, Dr. Avtar, and Kaur, Dr. Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.

Read more here

1. Sources of Law – I
2. Sources of Law II

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The post Sources of Law: Precedent IV appeared first on Kailasha Foundation.

Ratio Decidendi:

Generally, a judgment in a case has two distinct aspects, as:

1. A concrete decision binding on the parties to the litigation and therefore, having practical consequences, and
2. A judicial principle which is the basis of the concrete and practical decision.

The general principle applied in a particular decision is known as the ratio decidendi of the case. Such principle is not applicable only to that case, but to other cases also which are similar to the decided case in their essential feature.

The literal meaning of the term ratio decidendi is ‘reason of decision’ i.e. the rule of law which is preferred by the judges as the actual basis of his decision, or the rule of law which permits others to interpret the judgment as being of binding authority. According to Professor Keeton, ratio decidendi of a decision is the principle of law formulated by the judge for the purpose of deciding the problems before him. Rupert Cross says ratio decidendi is a rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion. According to Goodhart, ratio decidendi is to be found by taking into consideration all the facts treated as by the judge who decided the case. Salmond says that a precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The principle of the case must be rationally laid down, it should not be broader than necessary.

Principles to find Ratio Decidendi:

The whole judgment of a case is not binding only a part of the judgment is binding and that part is the ratio decidendi. To ascertain the ratio of a case, certain methods are as follows:

1. Classical or abstraction method: The higher the abstraction, the wider the ratio decidendi. The ratio depends upon a process of abstraction from the totality of facts that occurred in it.
2. Reversal test: Professor Wambaugh says that we should take the proposition of law put forward by the judge, reverse or negate it and see if its reversal would alter the actual decision also. If yes, the proposition is the ratio part of it, otherwise not. This rule does not help when a court gives several reasons for its decision.
3. Material facts theory: Prof. Goodhart opines that ratio decidendi is nothing more than the decision based on the material facts of the case. If in a subsequent case material facts coincide with or are identical with those of the earlier one, then the earlier case is precedent in point.
4. Simpson says that the ratio or precedent is not set and known just by one decision or case but by a series of them. Thus, for knowing the precedent we cannot rely only on one judgment but will have to go through a series of them to clearly understand the direction of law have to go through a series of them to clearly understand the direction of law towards which it is moving.

Obiter Dicta:

The term obiter dicta mean ‘statement by the way’. According to Keeton, obiter dictum are observations made by the judge but which are essential for the decision reached. In Jaiwant Rao and others v. State of Rajasthan,[i] the Court observed dicta which do not form the integral part of the chain of reasoning to the question decided may be regarded as ‘obiter’.  According to Talbot, J., an obiter dictum is an opinion on some point which is not necessary for the decision of the case. The emphasis is not only on the opinion but also on the point. It is not merely an expression of opinion unconnected with the cases for determination.

Obiter dicta merely possess persuasive efficacy because they are the dicta said just by the way, and they do not have any binding authority.

In Municipal committee, Amritsar v. Hazara Singh[ii] it was observed that ‘Even obiter dictum of the Supreme Court should be accepted as a binding force. But statements on matters other than law have no binding force. Supreme Court’s decisions which are essentially on the question of fact cannot be relied upon as precedents for the decision of other cases.

Distinction between Ratio Decidendi and Obiter Dicta:

Ratio decidendi means reason of the decision while obiter dicta mean something said by the judge, by the way, having no binding authority. The difference between the two can be understood better by the case R v. Franklin[iii]. As In this case, in the month of July the deceased was bathing in the sea at Brighton sea-beach. The accused stole a big box from a hotel at the sea-beach and threw that into the sea which struck him and caused his death. The accused Franklin was produced on the charge of manslaughter before the court of Justice Field. The court gave him a sentence of two months imprisonment. According to Justice Field, the ratio decidendi of this case was-

• That, if a person while committing a wrong or as a consequence of the wrong causes death of a person, he cannot be held guilty for manslaughter because of the reason that a death has been caused due to his act.
• A person who causes the death of another person due to his gross negligence shall be guilty of manslaughter.

In this case, Justice Field expressed a view by way of obiter dicta that even if the prosecution succeeds in proving that the alleged tort was committed by the accused, he shall not be guilty of manslaughter until the jury finds him guilty for this offense.

———————————————————————————————————————————————————————————–

[i] AIR 1961 Raj 250

[ii] AIR 1975 SC 1087

[iii] (1883) 15 Cox 163

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
3. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
4. Singh, Dr Avtar and Kaur, Dr Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.

The post Ratio Decidendi and Obiter Dicta appeared first on Kailasha Foundation.

The position of Precedent in India:

Before Independence:

India has followed the doctrine of precedent since inception. The earliest of texts suggest that there was a practice of precedents when so required. Manu, the foremost law-giver in India favored the theory of precedent to settle the disputed and doubtful points of law. “If it be asked how it should be with respect to (points of) law the law which has not been (especially) mentioned, (the answer is), that which Brahmans (who are) Sishtas propound shall doubtlessly have legal (force), Manu said.

In Mahabharat, it has also been suggested that “that path is the right one which has been followed by a virtuous man, since the texts might conflict with each other and purport of law is difficult to arrive at.” [i]However, it must be noted here that the modern meaning of the term ‘precedent’ was not accepted in ancient India as a decision originated from a court.

The medieval period brought no improvement to the theory. The Muslim rulers established various courts but there was no organized system for the judiciary. The present Indian system was developed by the British. The development can be traced down by going through the various legislation passed by them for the smooth functioning of the judiciary. There were Presidency Courts for presidency towns and Mofussil Courts in districts subjected to High Court. The Privy Council was the highest appellate tribunal. The decision of the superior court was made binding upon the lower courts. However, the Privy Council was not bound by its own decision. By the Act of 1935, a Federal Court was established in India and the Act provided that the decisions of the superior courts will have the binding effect on the courts below.

After Independence:

The Privy Council ceased to be the appellate court of India and Federal Court was abolished. The Constitution of India established a Supreme Court as the final appellate tribunal. High courts in each state and under them, civil and criminal courts in districts were established. The hierarchy of the courts is as follows:

In Supreme Courts:

Article 141 of the Constitution of India says that ‘the law declared by the Supreme Court shall be binding on all courts within the territory of India.’ Here the term ‘all courts’ came into controversy as there was some confusion whether the Supreme Court is bound by its own decision or not. In Dwarkadas v. Sholapur Spinning and Weaving Co.[ii], Chief Justice Das expressed his view, “Accepting that the Supreme Court is not bound by its own decisions and may reverse a previous decision especially on constitutional questions the Court will surely be slow to do so unless such previous decision appears to be obviously erroneous.”

In Bengal Immunity Co. v. State of Bihar[iii], the Supreme Court observed, “There is nothing in Indian Constitution which prevents the Supreme Court from departing from its previous decision if it is convinced of its error and its baneful effect on the general interest of the public.”

Thus, the Supreme Court is not bound by its own decisions, except to the extent that a smaller Bench is bound by the decision of a larger Bench and that of a co-equal Bench. The Supreme Court is not bound by the decisions of the Privy Council or the Federal Court[iv], they are more of persuasive nature having great value and the Supreme Court may overrule them if necessary. The position of precedent in the Supreme Court may be summed up as follows:

“The law declared by the Supreme Court under Article 141 shall be binding on all courts. The term ‘all courts’ does not include the Supreme Court itself. The trend is that the overrules those cases which cause hardship or have been decided erroneously, the Supreme Court does not listen to the decisions where their effects are baneful.”

In High Courts:

By virtue of Article 141, High Courts in India are bound by the law declared by the Supreme Court.[v] The decision of a High Court is not binding on other High Courts as they are courts of co-ordinate jurisdiction. The decision of a High Court, therefore, holds a persuasive value for other High Courts. All the District Courts, Magistrate Courts and Munsif Courts are bound by the decisions of Supreme Court and High Courts (within its jurisdiction). Likewise, Musnif’s Court and Magistrate’s Court are bound by the decisions of District Court (within its Jurisdiction). The question as to which extent a High Court is bound by its own decision has been controversial. The general rule is that the decisions of a larger Bench are binding on a smaller Bench or co-ordinate Bench.[vi]

 “A single judge constitutes the smallest Bench. A bench of two judges is called a Division Bench. Three or more judges constitute a Full-Bench.

The statement made by Justice Krishna Iyer in K.C. Dora v. G. Annamanaidu, AIR 1974, SC 1069, sums up the practice of the doctrine of precedent in Indian Courts:

“Precedent should not be petrified nor judicial dicta divorced from the socio-economic mores of the age. Judges are not prophets and only interpret laws in the light of the contemporary ethos. To regard them otherwise is unscientific.

My thesis is that while applying the policy of statutory construction we should not forget the conditions and concepts which moved the judge whose rulings are cited, nor be obsessed by respect at the expense of reason.”

To be continued…

[i] The Mahabharat, Vanaparva Ch. 313, Verse 117.

[ii] AIR 1954 SC 119

[iii] AIR 1955 SC 661

[iv] Delhi Judicial Services Association, Tis Hazari Court v. State of Gujrat, AIR 1991 SC 2176

[v] Behram Khurshid Resikak v. State of Bombay, AIR 1955 SC 123

[vi] V.R.G. & G.O.M.C. Co. v. State if A.P., AIR 1972 SC 51

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
3. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
4. Singh, Dr Avtar and Kaur, Dr Harpreet, Introduction to Jurisprudence, Lexis Nexis, Gurgaon, 2013.

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The post Sources of Law: Precedent III appeared first on Kailasha Foundation.

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The position of precedent in England:

The concept of judicial precedent is well settled in English system. The inferior courts are bound by the decisions of superior courts. The superior courts are not under obligation to follow the rules of inferior courts. One court of similar jurisdiction is not bound by the decision of the courts of coordinate jurisdiction. In England, the lowermost courts/ the courts of the first instance are the County Courts and the Magistrate Courts then come the High Court. The High Court is divided into three Divisions i.e., Queen’s Bench Division, Chancery Division, Probate, Divorce and Admiralty Division. Above them, there are the Courts of Criminal Appeal (appellate court for criminal cases) and the Court of Appeal (to deal with appeals for other than criminal cases). The House of Lords is the highest judicial tribunal and the Privy Council is the highest appellate tribunal of the British colonies and the dominions. The hierarchy of courts in England is given below:-

The two rules that govern the concept of precedent are – i) each court is absolutely bound by the decisions of the courts above it, and ii) to some extent, higher courts are bound by their own decision.

The House of Lords:

The highest judicial tribunal for the United Kingdom is House of Lords. The decision given by it are binding on all the courts below. Whether the House of Lords is bound by its own decisions was a disputed question till, in Attorney General v. Dean of Windson[i], Lord Campbell laid down that the House of Lords is bound to accept its own decision. In his words, “ By the Constitution of this United Kingdom, the House of Lords is the Court of Appeal in the last resort, and its decisions are the authoritative and conclusive declaration of existing state of the law and are binding upon itself judicially as much as upon all inferior tribunals.” The view was re-affirmed by Lord Halsbury in London Street Tramways Co. v. London County Council[ii] . However, in Boys v. Chaplin[iii], Lord Chancellor announced that the House would no longer consider itself absolutely bound by its own decisions.

The Supreme Court of the United Kingdom in 2009 replaced the appellate committee of the House of Lords as the highest Court in U.K. consisting 12 members including the Chief Justice of the Supreme Court. The Court deals with the issues of the greatest public importance, for the whole of the United Kingdom in civil cases and for England, Wales, and Northern Ireland in criminal cases.

Court of Appeal and Court of Criminal Appeal:

The Court of Appeal is bound by its own decision as well as the decisions of Supreme Court. The rule was approved in case of Young v. Bristol Aeroplane co. Ltd.[iv] by the full bench. However, following are the cases when the Court of Appeal is not bound by its own decision:

1. The Court shall refuse to follow a decision of its own which, though not expressly overruled cannot, in its opinion stand with the decision of the House of Lord.[v]
2. The Court is not bound to follow a decision if it is satisfied that the decision was given per incurium.[vi]
3. The Court is not bound by its own decision in case there are two conflicting decisions of its own.[vii]

The Court of Criminal Appeal is also bound by its own decision and decisions of the Supreme Court. The Court of Appeal and the Court of Criminal Appeal are not bound by the decisions of each other as both are Courts of coordinate jurisdiction. The Court of Criminal Appeal can disregard its own previous decision in cases where it finds that there was misconstruction or misapplication of law and reconsiders the previous decision. As clear from the chart above, High Court is bound by the decisions of the Supreme Court, Court of Appeal, Court of Criminal Appeal and by its own previous decision. County Courts and the Magistrates’ Courts are bound by the decisions of House of Lords, Court of Appeal, Court of Criminal Appeal, High Court and its own decisions.

The Position of precedent in India:

to be continued…

[i] (1860) 8 HLC 369 at pp. 391-392

[ii] 1898 A.C. 375

[iii] (1968) 1 All ER 283

[iv] 1944 KB 718

[v] Lyus v. Stepney Borough Conneit, (1940) 2 KB 663

[vi]Young v. Bristol Aeroplane co. Ltd, 1944 KB 718

[vii] King v. King, (1943) 2 All ER 253

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
3. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.

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The post Sources of Law: Precedent II appeared first on Kailasha Foundation.

Judicial precedents, originated from Britain, have acquired the binding authority of law and are one of the foremost sources of law. Judges play a significant role in developing a legal system and when there is no statutory law or there is ambiguity in law on a particular issue, judges apply their own mind to formulate and define a law. The decisions on such points become the authority or guide for subsequent cases of a similar nature. They hold the same status as a statutory law does and that is why precedents are also called as judge-made laws.

Definition and Meaning:

According to Keeton: “A judicial precedent is a judicial decision to which authority has, in some measure, been attached.”[i]

Gray said, “A precedent covers everything said or done which furnished a rule for subsequent practice.”[ii]

According to Jenks: “A judicial precedent, in a decision by a competent court of justice upon a disputed point of law, becomes not merely a guide but an authority to be followed by all courts of inferior jurisdiction administering the same system until it has been overruled by superior court of justice or by a statute e.g. the Act of Parliament.”[iii] 

Oxford Dictionary defines precedent as “a previous instance or case which is, or may be taken as an example of a rule for subsequent cases, or by which some similar act or circumstances may be supported or justified”.

In general terms, precedents may be construed as a guidance by superior court which it has decided in a past case to the inferior courts for future cases on the same point which must be followed.

Reasons behind enforcement of Precedent:

1. Precedents are based on practical experiences and not only on logic. Allen says “The Judge is the interpreter of social mind and he can easily adapt the law to changing wants of those amongst whom the law is administered.”
2. Precedents are based on convenience in the sense that it provided settled law and thus help in saving time and labour of the system.
3. Precedents have prevented an error of judgment by individual judges.
4. There cannot be partiality on the part of judges due to precedent.
5. It also helps the lawyers by giving them a cautious view of the law on the basis of past judicial experiences.
6. The reason why precedents are so recognized is that a judicial decision is presumed to be correct. That which is delivered in judgment must be taken for established truth.
7. 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.

To be continued…

[i] Keeton, op. cit., p. 96

[ii] Gray, op. cit., p. 198

[iii] Jenks, op. cit., p. 70

Books referred:

1. Aggarwal, Nomita, Jurisprudence (Legal Theory), Central Law Publications, Allahabad, 2012.
2. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
3. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.

The post Sources of Law: Precedent I appeared first on Kailasha Foundation.

Read Sources of Law: Meaning and Classification

Essentials of a valid Custom:

All the customs are not approved in judicial interpretation. There are some conditions which must be fulfilled for recognition. These requisites have been laid down by Blackstone, Allen, Carter, Littleton, etc. They are:

Antiquity: 

To be a law, a custom must be in existence from time immemorial. Blackstone says, “A custom, in order that it may be legal and binding, must have been used so long that the memory of man runneth not to the contrary. So that is anyone can show the beginning of it, it is no good custom.” The question lies here that what is that exact time when a custom may be called an antique. The English rule is that a custom must have originated prior to the year 1189, the year in which the reign of Richard started. However, this arbitrary time limit has not been accepted all over. The legal fiction considers human memory to extend for approximately 800 years. So where the origin of the custom is known at 800 years back it’ll be a valid custom but when the origin cannot be ascertained, it must have come into existence before 1189. The Indian law does not consider a fixed time for antiquity. In Baba Narayan v. Saboosa[i], Sir George Rankin observed, “In India, while a custom need not be immemorial, the requirement of long usage is essential since it is from this that custom derives its force as governing the parties’ rights in place of the general law.”

Conformity:

Custom and a statutory law should not be in conflict with each other. A state can nullify a custom by an enactment and not vice versa. According to Coke, “No custom or prescription can take away the force of an Act of Parliament.” This view has been highly questioned by many writers. Their view is that legislation and custom stand equal. According to Allen, “Age cannot wither an Act of Parliament, and at no time, so far as I am aware, has it ever been admitted that a statute might become inoperative through obsolescence.”    

Bernhard Windscheid says, “The power of customary law is equal to that of statutory law. It may, therefore, not merely supplement but also derogate from the existing law. And this is true not merely of rules of customary law inter se but also of the relations of customary law to statute law.”

Continuity:

A custom must have been in use continuously without any interruption or disturbance. If there has been a considerable gap of time in the practice of a custom, it may be presumed against the existence of the custom.

Consistency:

Other established customs are not hampered by a custom; this is one of the most important requisites of a valid custom. One custom cannot be established by opposing to the other custom.

Reasonableness:

A tough task to judge a custom lies in examining the reasonableness of a custom. The custom must be useful, convenient to the larger section of society. The rule regarding reasonableness, according to Allen is, “not that a custom will be admitted, if reasonable, but that it will be admitted unless it is unreasonable.” The unreasonableness of the custom needs to be proved and not the reasonableness. The idea is that a custom must not oppose ‘public policy’.

Peaceful Enjoyment:

There must be a peaceful enjoyment of a custom. If a custom is in question for a long time, it loses the presumption that there was consent in the origin of that particular custom.

Obligation:

The observation of a custom must be obligatory for the society. If there exists an option, it would be ineffective. The general public opinion must consider it as a matter of right. A custom to be unreasonable,  it must be proved that it is opposed to reason.

Certainty:

Certain and definite customs are accepted in the court of law. A vague or indefinite custom cannot be recognized. Like the rule of evidence, there must exist a clear proof that a custom was in operation and not a mere presumption can uphold a custom.

Universality:

A custom must be universally accepted in the society, it must be general in nature. Carter writes, “Custom is effectual only when it is universal or nearly so. In the absence of unanimity of opinion, custom becomes powerless, or rather does not exist.”

Kinds of Customs:

Custom may be divided into two kinds, i.e. i) customs without sanction, and ii) customs with sanction.

Those customs which are non-obligatory are customs without sanction. They are backed by public pressure. Austin called such customs as ‘positive morality’.

Customs enforceable by State are customs with sanction. They are of types-

1. Legal Customs- They are binding rule of law having absolute legal authority. They are recognized by courts and are a part of the system. There are two classes of legal customs: i) general custom, prevailing throughout the territory of the State and ii) local custom, having application in a defined locality or sect, viz. to a district, to a town, to a village, to a family, etc.
2. Conventional customs- The customs which govern the parties to an agreement are known as conventional customs. They are backed not by the law of the land but because of the express or implied incorporation of the contract between the parties.

Conclusion:                                                          

The custom was the only source of law in the primitive society. The society kept changing and the so did the sources. The relevancy of customs came down and other means such as courts’ judgment, enacted laws started to prevail. Though customs are now a part of our enacted laws, a major portion of customs are still uncodified. The Courts and the Parliament have a huge task to filter those aged customs and take whatever suits the needs of the modern world.                                                                                                                                                                                                                                                                                                                                                                                                                             

[i] 1943) 2 MLJ 186

Books referred:

1. Mahajan, V.D., Jurisprudence, and Legal Theory, Eastern Book Company, Lucknow, 2016.
2. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.

The post Primary Source of Law : Custom appeared first on Kailasha Foundation.

Definition:

Salmond: “Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility.”
Keeton: Customary law may be defined as “those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as source of law because they are generally followed by the political society as a whole or by some part of it.”
Holland: “Custom is a generally observed course of conduct.”
Carter: “The simplest definition of custom is that it is uniformity of conduct of all persons under like circumstances.”
Allen: “Custom as a legal and social phenomenon grows up by forces inherent in society, forces partly of reason and necessity and partly of suggestion and limitation.”
Austin: “Custom is a rule of conduct which the governed observe spontaneously and not in pursuance of law settled by a political superior.”
Halsbury: “A custom is a particular rule which has existed either actually or presumptively from time immemorial and has obtained the force of law in a particular locality, although contrary to or not consistent with the general common law of the realm.”
Judicial Committee of Privy Council: “A rule which in a particular family or in a particular district has from long usage obtained the force of law.”

Origin of custom:

The prime question lies how customs have emerged. Jurists of different schools have divergent views about it. Holland points out that custom originated in the conscious choice by the people of the more convenient of the two acts. Imitation also must have played an important part in the growth of customs.

According to Vinogradoff: “Social customs themselves obviously did not take their origin from an assembly or tribunal. They grew up by a gradual process in the households and a daily relation of the clans, and the magistrate only came in at a later stage, when the custom was already in operation and added to the sanction of general recognition the express formulation of judicial and expert authority.”
The laws were not made by the King or Sovereign at first. People had a particular way of life and doing things that were, later on, recognized by the sovereign by putting the imprimatur on it. This is how customs got the status of law. With the passage of time vague customs became definite and strong. Once authorized by the King, customs became the rule of law. Salmond says that the importance of custom diminishes as the legal system grows. Customs are considered as transcendental law.

Why is custom binding?

There may be questions as to why customs are recognized as law and why they have the same force as a law. Considering the same, Salmond observed, first, “Custom is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. The national conscience may well be accepted by the courts as an authoritative guide, and of this conscience, national custom is the external and visible sign.” “Custom is to society what law is to the State.”
Second, “The existence of an established usage is the basis of a rational expectation of its continuance in the future.” If the society has for a long time continued a practice which determined their rights and liabilities, and aroused expectation, and if it is not opposed to public policy or reason, there is no need to remove or amend it. Other logics behind enforceability of custom may be considered as customs are observed by a large part of society and in contemporary need, the same can have the force of law, customs are considered as in the interest of society and going against may hamper the public policy. Paton observes, “Custom is useful to the law-giver and codifier in two ways. It provides the material out of which the law can be fashioned—it is too great an intellectual effort to create law de novo. Psychologically, it is easier to secure reverence for a code if it claims to be based on customs immemorially observed and themselves true even though historically claim cannot be sustained. There is inevitably a tendency to adopt the maxim ‘Whatever has been an authority in the past is a safe guide for the future’.”

Theories regarding when does a custom become a law:

Mainly, there are two theories as to when a custom is transformed into law, i.e. historical theory and analytical theory.

Analytical theory: The likes of Austin, Holland, Gray, Allen, Vinogradoff supported the analytical view of the transformation of a custom into law. Austin says that customs are not law until so declared by the sovereign. Custom is a source of law and a law in itself. To be a ‘positive law’ customs need to be declared so by the court, or, can say, it is not law until it has received the judicial recognition, or it has been embodied in some statute. The customs are not so recognized or backed by the authority are mere ‘positive morality’. ‘when does a custom become law’, Austin answers, ‘when it is declared so by the sovereign’.

Gray says that customs are not law until approved by the judge. “The true view, as I submit, is that the law is what the judges declare; that statute, precedent, the opinions of the learned experts, customs and morality are the source of law; that at the back of everything lies the opinions of the ruling spirits of the community who have the power to close any of the sources; but that so long as they do not interfere, the judges in establishing law have recourse to these sources. Custom is one of them, but to make it not only one source but the sole source of law itself, requires a theory which is as little to be trusted as that of Austin.” Customs are not law until they commend themselves to the reason of the judge and the judge recognizes and embodies them in judgment.

Holland is of the view that customs are not laws per se. customs are not law when they arise but they become law by State recognition.

Historical theory: This concept is backed by Savigny, Puchta. According to them, Declaration or recognition by the state is not necessary for a custom to become a law. Contrary to the views of analytical school, historical school, Savigny says that custom is per se law. A custom indicates that it has arisen due to the urgent need and by the approval of people. “Custom is the badge and not a ground of origin of positive law.’ Putcha views that custom is not only self-sufficient, and independent of legislative authority, but is a condition precedent of all sound legislation. The state is bound to accept customs and cannot reject the authenticity of the same.

Criticism:

The analytical approach has been criticized because it holds half-truth only. All customs are not approved by courts as they do not come into question, the society itself recognizes customs. Courts shape customs, derives raw materials from them but that would be wrong to say that custom is not law until it has been recognized or declared by the sovereign.
The view of historical school is also not correct completely. Customs have not been always arisen out of the needs of people, the imposition of certain rules by the ruling class has also resulted in the transformation of custom into law. The historical school also neglected the role of judges and lawmakers as they are relevant in the contemporary world.

To be continued…….

Books referred:
1. Mahajan, V.D., Jurisprudence and Legal Theory, Eastern Book Company, Lucknow, 2016.
2. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.

The post Sources of Law: Meaning and Classification appeared first on Kailasha Foundation.

Definitions and meanings

Before going into the discussion as what ‘law’ is, it is necessary to know about the sources from which it emanates. And before knowing the sources, one must understand what ‘sources of law’ means. The term ‘sources of law’ has been used in different senses by different philosophers and many different views have been emerged from time to time. The general meaning of the term ‘sources’ is ‘origin’. The philosophers of jurisprudence have a difference of opinion about the sources of law. The analytical school considers that law originates from the sovereign while the followers of the theological school believe God created law. The Vedas and Quran considered a law to have been revealed by God.  As there are differences, that is why it is desirable to know the various definitions of the term.

K. Allen defines‘sources of law’ as “agencies through which the rules of conduct acquire the character of law by becoming definite, uniform and compulsory”.

Keeton says Source means “the material, out of which is eventually fashioned, through the activity of judges”.

According to Oppenheim source of law is “the name for a historical fact out of which the rules of conduct came into existence and acquire legal force”.

Holland says the term ‘sources of law’ is used to indicate the quarter from which one obtains the knowledge of the law, e.g., the statute book, the reports, treatises. It is also used to mean the final authority which gives the force of law, i.e., the State. The cause which, as it were, automatically brought into existing rules which have subsequently acquired that force viz., custom, religion, and scientific discussion, is also considered as sources of law sometimes. It also denotes the organ through which the State either grants legal recognition to rules previously unauthoritative or itself creates new law, e.g., adjudication, equity and legislation. Holland provided four different meaning of the term in his inclusive definition and denied any other meaning.

Rupert referred different senses to the term ‘sources of law’. He says,(i) there is the literary source, the original documentary source of our information concerning the existence of rule of law, e.g. law reports; (ii) there are historical sources, the sources-original, mediate or immediate from which the legal rules of law derive their content as a matter of legal history, e.g. works of eminent jurists like Bracton and Coke; Roman Laws, medieval customs. The sense of the ‘source of law’ can be extended to anything which accounts for the existence of a legal rule from the causal point of view. It may include public opinion, moral principles and judicial idiosyncrasies(a mode of behavior or way of thought peculiar to an individual).[i]

John Austin gave three different meanings of the term. First, the term refers to the immediate or direct author of the law, i.e. the sovereign. Second, the term refers to the historical document from which the body of law can be known, e.g., the Digest and Code of Justinian. Third and the last, the terms refer to the causes which have brought into existence the rules which later on acquire the legal force, e.g. the customs, judicial decisions, equity etc.

This view of Analytical school has been criticized by the exponents of Historical School represented by Savigny, Sir Henry Maine, Puchta etc. they contended that law is not made but formed. A common consciousness of the people is the foundation of people manifested by usages, practices, and customs. Customs and usages, and not the sovereign’s commands, are the sources of law.

School of Natural Law considers the law as of Divine origin. Every law is a gift of God and the decision of sages. The Quran, the Hades, the Vedas are prime examples. The law of Lycurgus in Greece had a divine origin. Moses got the Commandments from Jehovah and Hammurabi got his code from the Sun God.

Sociological School of law represents an opposite view and considers that law does not emanate from a single authority, a law is taken from many sources and not from one. Ehrlich opines “At the present as well as any other time, the center of gravity of legal development lies not in legislation, not in juristic science nor judicial decisions, but in society itself.” Duguit says that law is not derived from a single source and the basis of law is public service. There need not be any specific authority in a society which has the power of making laws.

Classification:

Salmond was of the view that the two main sources of law were formal and material. Material sources could be subdivided into legal and historical sources. Legal sources were legislation, precedent, custom, agreement and professional opinion.

1. Formal sources are those sources from which the law derives its force and validity. E.g. the will of the State as manifested in statutes and judicial decision.
2. Material sources mean the source from which the law derives the matter of which it is composed and not the validity. a)Legal sources of law are authoritative. They are the instrument which creates legal rules. They are the gates through which new principles find their admittance in the legal sphere. They can further be classified into following classes:  i) Enacted law, emanating from Legislations; ii) Case laws as Precedents; iii) Customary laws, having authority from Customs; iv) Conventional law, backed by agreements.  b) Historical Sources are unauthoritative. They have no legal recognition. They are operated indirectly and mediately. Foreign decisions, juristic writings and other things a judge derives while giving his judgment may be included in this class. Historical sources may become legal by recognition by law as such or incorporation in law.

An Act of Parliament and a work of eminent Jurist are material sources of law but Act of parliament are more authoritative and the work of the Jurist may or may not become so much authoritative law. Similarly, the decisions of Indian Supreme Court are binding precedents for courts in India but the decisions of Supreme Court of USA are not binding in India. They may or may not be so recognized and followed in India.

The classification is criticized by Allen. He was of the view that Salmond gave less importance to historical sources, historical sources, too, carry weight.

Keeton while criticizing Salmond, said that the only formal source of law is the State. But the state is an organization enforcing the law. Therefore, it cannot be considered as the source of law in the technical sense. He gave his own classification of the sources of law:

1. The binding sources of law which are binding on judges, and they are not free in their application, e.g. legislation, precedents, and customary laws.
2. The persuasive sources of law which are used when there is no binding sources are available on a particular issue, e.g. opinions on professionals, principles of equity, morality.

Conclusion:

Source of law must not be construed as the authority sanctioning or enforcing a law. It should mean the agency from which the law originates, or can say from where the rule of action has come into existence. That is why Giorgio Del Vecchio regards the nature of the man as the source of law.

In the contemporary world, a law is made by legislation, the decisions of apex courts are also law, customs play a vital role too. In absence of these, courts take opinions of renowned personalities on a particular issue, foreign decisions, morals, principles of equity are also taken into consideration where there exists no direct authority.  Mainly there belong two classes of sources i.e. binding and persuasive. Binding includes legislation, precedents, and customs while rest sources are persuasive. Once binding sources are discussed and referred to, once binding sources are exhausted.

[i] Precedent in English Law, p. 146

Books referred:

1. Mahajan, V.D., Jurisprudence, and Legal Theory, Eastern Book Company, Lucknow, 2016.
2. Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.

The post Sources of Law: Meaning and Classification appeared first on Kailasha Foundation.