What Are The Sources Of Law?
Author – Associate Aswini Ramesh
The term law is very diverse in nature. In today’s world, it is essential to have an effective legal system for the orderly function of social life and the existence of mankind. It is essential for everyone to be aware of the law of the land to avoid any unethical behavior. The term ‘Law’ has been derived from the Teutonic phrase ‘Lag’ meaning ‘specific’.
The term law has many definitions,
In layman’s language law means “The system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties”.
The famous jurist Salmond defines law as “Law is the body of principles recognized and applied by the state in the administration of justice”.
One must know as to what are the sources of law and which of the sources one can rely upon for justice. It is very important to understand that the law of every land is derived from the sources so one has to know what the sources of law are before getting into any concept of law
India derives its laws from a variety of sources and they are as follows:
1. Legislation as one of the sources of law-
The term ‘Legislation’ is derived from the Latin words ‘Legis’ meaning regulation and ‘latum’ which means making. The legislation is considered as a primary source of law in India, legislation has a wide ambit and it is used to regulate, authorize, enable, provide funds, prescribe, sanction, grant, declare, or restrict. The legislature is framed by the parliament in the form of new acts, new laws, repeal, and amendment of old laws. The procedure for this is prescribed in the constitution of India.
So legislation as one of the sources of law is further divided into two parts :
It is the parent law that originates from the sovereign strength of the nation. It cannot be repealed, annulled, or managed by other legislative authorities.
The subordinate legislation is dependent on the supreme legislation for its validity and existence.
2. Customs as one of the other sources of law-
Customs is an established model of social behavior within a community. It is one of the main and oldest sources of law in India. According to Roscoe Pound, customary regulations comprises:
- Law formulated by customs of famous motion
- Law formulated through judicial choice
- Law formulated with the aid of doctrinal writings and clinical discussions for legal standards
- Ingredients of customs as one of the sources of law in India:
- Obligatory in nature
- Peaceful Enjoyment
3. Judicial Precedents is another one of the most important sources of law in India-
Judicial Precedents lays on the doctrine ‘stare decisis’, it simply means adhering and relying on earlier decisions made by the courts; i.e., for instance, if the high court decides on a particular case and a similar situation comes to the lower court, the lower court will treat the case alike and pass the judgment same as done by the high court. This is because the high court has set a precedent for the lower court and the lower court is bound to follow it.
The decisions of the lower bench can always be overruled by the higher bench by giving valid reasons. In Union of India Vs K.S. Subramanium – AIR 1976 SC 2435- In this case when there was an inconsistency in the decision between the benches of the same court, the decision of the larger bench was followed.
Key principles of judicial precedent
- Bound by their own decisions
4. Justice, Equity, And Good Conscience
This principle is applied only in cases where the judges feel that the law seems to be inadequate or out of date or unjust. In such cases, the judges make decisions based on equity, good conscience, fairness, and justice using their commonsense.
5. Conventional Law – International Treaties/Agreements /Conventions
With the emergence of globalization, there was an increased need for world countries to interact with one another, this means that there’s a requirement for world countries to be bound by a single set of laws. Such laws are made by the way of treaties, agreements, etc., and these are harmonized by the United Nations. Countries who are members of the United Nations have to accept such rules or norms laid down by the organization, and abide by such statutes or rules and also such members also have to frame laws in conformity with such rules. And hence International conventions have an important role in framing new laws or making amendments to existing laws.
Therefore, all the above-mentioned sources completely answer the question as to what are the sources of law. All these sources play a very important role in different changes and decisions made for justice. ZamanAccounting