Jurisprudence - The Sources of Law

Analytical Positivist School- Sources of Law Austin says that the term source of law has three different meanings. 1. The term refers to immediate or direct author of the law which means the sovereign in the country. 2. The term refers to the historical document from which the body of law can be known. 3. The term refers to the causes which have brought into existence the rules which later on acquire the force of law and here he says for example the customs !udicial decision equity etc. Historical Jurists" #avigny $enrye %aine &uchta" 'aw is not made but it is formed. The foundation of law lies in the common consciousness of the people which manifests itself in the practices usages and customs of the people. Therefore customs and usages are the sources of law. Sociological Jurists" They protest against the orthodox conception of law according to which law emanates from a single authority in the state. 'aw is taken from many sources and not from one. (hlrich" $e says that at the present as well as any other time the centre of gravity of legal development lies not in legislation not in science nor in !udicial decisions but in society itself. Duguit" 'aw is not derived from any 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. Salmond on Source of Law#almond has done a classification of sources 1. Formal Sources" )t is as that from which rule of law derives its force and validity. The formal source of law was the will of the state as manifested in statutes or decisions of the court and the authority of law proceeds from that. 2. aterial Sources" They are those from which is derived the matter though not the validity of law and the matter of law may be drawn from all kind of material sources. a. Historical Sources" )n this rules are subsequently turned into legal principles were first to be found in an *nauthoritative form. They are not allowed by the law courts as of right. They operate mediatory and indirectly. i. *nauthoritative +ritings b. Legal Sources" They are sources which are the instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are authoritative and are followed by the courts as of right. They are the gates through which new principles find admittance into the realm of law. i. 'egislations ii. &recedent iii. ,ustomary 'aw iv. ,onventional 'aw" Treatise -,. Allen/ Allen says that #almond has attached insignificant attention to historical sources which demands more attention. .eeton says that state is the organi0ation which enforces the law. Therefore technically state cannot be considered as a source of law. According to #almond a statute is a legal source which must be recogni0ed and writings of 1entham are without legal authority. Legal source of !nglish Law" There are two sources of (nglish 'aw

1. (nacted 'aw having its source in legislation" )t consists of statutory law. 'egislation is the act of making of law by formal and express declaration of new rules by some authority in the body politic which is recogni0ed as adequate for that purpose. 2. ,ase 'aw having source in !udicial precedence" )t consists of common law which we find in law reports. &recedent is also making of law but by recognition and application of new rules by the courts in the administration of !ustice. ,ase laws are developed by the courts whereas enacted laws come into the courts ab extra. 3. 2uristic 'aw" &rofessional opinion of experts or eminent !urists. These are also sources of law. Though they are not much accepted. Source of Law" Are they source of right# )t means some fact which legally constitutes a right. 1y source of law is meant some fact which is legally constitutive of right. )t is the de facto antecedent of a legal right in the same way as the source of law is de facto antecedent of a legal principle. Legislation" Legis means law and latum means making. #almond" 'egislation is that source of law which consists in the declaration of legal rules by a competent authority. 3ray" 'egislation means the forma utterance of the legislative organs of the society. Austin" There can be no law without a legislative act. Analytical Positivist" They say that typical law is a statute and legislation is the normal source of law making. The ma!ority of exponents of this school do not approve that the courts also can formulate law. They do not admit the claim of custom as a source of law. Thus they regard only legislation as source of law. Historical School of Thought" 'egislation is the least creative of the sources of law. 'egislative purpose of the legislation is to give better form and more effective the custom which is spontaneously developed by the people. They do not regard legislation as source of law. Legislation #upreme 'egislation" #uperior 'egislation which proceeds from the sovereign power of the state. )t cannot be repealed annulled or controlled by any other legislative authority. #ubordinate 'egislation" )t is that which proceeds from any authority other than the sovereign power and it is dependant for its continual existence and validity on some superior authority. Delegated Legislation" 4unction of the executive is to enforce the law. )n case of 5elegated 'egislation executive is framing the provisions of law. )t is also known as executive legislation. )t comes in the form of orders by laws etc. #ub"5elegation is also a case in )ndian 'egal system. The power to make subordinate legislation is derived from existing enabling act. )t is fundamental that the delegate on whom such power is conferred has to act within the limits of the enabling act. )ts purpose is to supplant and not to supplement the law. )ts main !ustification is that sometimes legislature does not foresee the difficulties that will come while enacting the law. Therefore 5elegated 'egislation fills in those gaps which are not seen while formulation of the enabling act. 5elegated 'egislation gives flexibility to law and there is ample scope for ad!ustment in the light of experiences gained during the working of legislation. ,ontrols over 5elegated 'egislation &arliamentary ,ontrol &arliamentary #upervision

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2udicial ,ontrol" )ndirect" ,ourts cannot annul subordinate enactments but they can declare them inapplicable in particular circumstances. Though these rules are not actually abrogated but they become dead letter because in future no responsible authority will attempt to apply it. Trustworthy 1ody of &ersons" )t can be ensured if power is trusted only to trustworthy persons &ublic 8pinion can be a good check on arbitrary exercise of 5elegated &owers. )t can be enlightened by antecedent publicity of the 5elegated 'aws. )n matters of technical nature opinion of experts must be taken that will minimi0e the dangers of vague legislations. Advantages Abrogation" 1y exercising power to repeal the legislature can abrogate any legislative measure or provision which is meaningless or ineffective in the changed circumstances. The ease with which the legislature can repeal a law is not the case in situation of courts because interference of litigants is necessary in such cases. 5ivision of function" 'egislation is advantageous because of division of function. 'egislature can make the law by gather all materials and relating it to the legislative measure. )n this process legislature takes opinion of public and experts. Thus public opinion has its opinion in legislature. 2udiciary cannot gather particular material regarding enforcement of particular principles. &rospective 9ature of 'egislation" This is because they are made applicable to events which it is supposed to apply after the legislation is passed. Therefore public can shape its conduct according to enacted legislation. 2udgment 'aw is necessarily retrospective. The legality on the nature of act is pronounced after the act has been done. 1entham said :5o you know how they make it; !ust as man makes for his dog. +hen your dog does something you want to break him off you wait till he does it and beat him and this is how the !udge makes law for men.< 9ature of assignment" 5ue to the nature of assignment the legislators interact with all sections of people and thereby opportunities are available for them to know the failed necessities of time. The decisions of legislators are collective in nature but this is not so in case of 2udgment 'aw. #ometimes 2udgment is also based on pre!udice that makes it uncertain at times. 4orm" (nacted 'egislation is abstract proposition with necessary exceptions and explanations but 2udgment 'aw is merged with details of facts of the case. +hen 2udge gives 2udgment he makes elephantiasis of law. Legislation and $ustomary Law'egislation has its source in theory. +hereas customary law grows out of practice. The existence of 'egislation is essentially 5e 2ure. +hereas existence of customary law is essentially 5e 4acto. 'egislation is the latest development of 'aw making tendency. +hereas customary law is the oldest form of law. 'egislation is a mark of an advanced society and a mature legal system. +hereas customary law is a mark of primitive society and under"developed legal system. 'egislation expresses relationship between man and state. +hereas customary law expresses relationship between man and man. 'egislation is precise complete and easily accessible but the same cannot be said about customary law because legislation is !us scriptum. 'egislation is the result of a deliberate positive process. 1ut customary law is the outcome of necessity utility and imitation. Advantage of Precedence Law over legislation-

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Dicey" The morality of courts is higher than the morality of the politicians. A !udge is impartial. Therefore he performs his work in an unbiased position. Salmond" ,ase law en!oys greater flexibility than statute law. #tatute law suffers from the defect of rigidity. ,ourts are bound by the letter of law and are not allowed to ignore the law. )n the case of precedent analogical extension is allowed. )t is true that legislation as an instrument of reform is necessary but it cannot be denied that precedent has its own importance as a constitutive element in the making of law although it cannot abrogate the law. %ray" ,ase law is not only superior to statute law but all law is !udge made law. )n truth all the law is !udge made law the shape in which a statute is imposed on the community as a guide for conduct is that statute as interpreted by the courts. The courts put life into the dead words of the statute. $o&e" The function of a court is to interpret the statute which is a document having a form according to the intent of them that made it. Salmond- The expression will of the legislature represents short hand reference to the meaning of the words used in the legislature ob!ectively determined with the guidance furnished by the accepted principles of interpretation. )t is the duty of the !udiciary to dispower and to act upon the true intention of the legislature. Sensitia legis a'well on (nterpretation)ule of Literal $onstruction" The first and most elementary rule of construction is that it is to be assumed that the words and phrases of technical legislations are used in their technical meaning if they have acquired one otherwise in the ordinary meaning. #econd is that the phrases and words are to be constructed according to the rules of the grammar. Therefore it is very desirable in all cases to adhere to the words of the act of parliament giving to them that sense which is their natural import in order in which they are placed. 'astly the length and detail of modern legislation has undoubtedly reinforced the claim of literal construction as the only safe rule. ischief )ule" +hen the true intention of the legislature cannot be determined by the language of the statute in question it is open to the court to consider the historical underlying the statute. The court may consider the circumstances that led to the introduction of the bill also to the circumstances in which it became the law. +hen !udges are allowed to probe into the questions of policy in interpreting statutes there is bound to be some uncertainty. )t is maintained that the !udges may look at the law before the Act and the mischief in the law which statute was interested to remedy. The act is to be construed in such a manner as to suppress the mischief and advance the remedy. This rule is known as %ischief ?ule. $eydon@s ,ase" +hat was the common law before making this actA +hat was the mischief and defect for which the common law did not provideA +hat remedy the parliament has resolved and appointed to cure the diseaseA +hat is the true reason of the remedy and then the office of all !udges is always to make such construction as shall suppress the mischief and advance the remedy. #mith v. $ughes" 'ord 2ustice &arker tried to find out mischief in #treet 8ffences Act 1B7B. #ection 1 talked about offence for a prostitute to solicit customers on a street but it did not make it an offence to solicit customers from window. The purpose of the act was to clean the street so it is immaterial from where the prostitute solicits the customer. %olden )ule" )t is a modified version of literal construction. Although it is useful to adhere to the literal rule of construction yet if the ordinary meaning is at variance with the intention of the

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legislature it is to be collected from the statute itself. )f it leads to manifest absurdity or repugnance the language may be varied to avoid such inconvenience. #econdly if the language is capable of more than one interpretation one ought to discard the more natural meaning if it leads to an unreasonable result and adopt that interpretation which leads to a practicable and reasonable result. Therefore court when faced with two possible constructions of legislative language it is entitled to look at the result by adopting each of the alternatives in the quest for true intention of the parliament. $onstruction uti regis magis valeat *ua pareat " +here alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statutes purports to be regulating and that alternative is to be re!ected which will introduce uncertainty friction or confusion in the working of legal system. Therefore in accordance with these principles the courts should avoid interpretations which would leave any part of the provisions to be interpreted without effect. The courts will not narrow down the enactments but it may give a wide sense to the words in the statute. )ule of +eneficial $onstruction" The construction of a statute must not so strain the words as to include cases plainly omitted from the natural meaning of the language. 4 v. , -Cueen@s 1ench ,ase/. Therefore 1eneficial ,onstruction is a way of relaxing the strict principles of interpretation and that is the reason why they are called beneficial construction. )t is a way when the courts without supplying the omission when confronted with a choice between a wide meaning which carries out what appears to have been the ob!ect of the legislature more fully and narrow meaning which carries it out less fully or not or at all the courts will often chose the former. )estricted $onstruction- There are some ob!ects which the legislature is presumed not to intend and a construction which would lead to any of them is therefore to be aborted. )t is not infrequently necessary to limit the effects of the words in an enactment especially the general words and sometimes to depart from not only there primary meaning but also from the principles of grammatical construction. )t is more beneficial or more reasonable to hold that the legislature expressed its intention in a slovenly manner that a meaning should be given to them which could not have been intended. $onstruction to avoid collision with other provisions- )f the two sections of the same statute are repugnant the known rule is that the last must prevail and one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations. %eneralia Speciali,us -on Derogant" +here there are general words in a latter act capable of reasonable and sensible application without extending them to sub!ects especially dealt with by earlier legislations the !udges are not to hold that earlier or special legislation indirectly repealed altered or derogated merely by the force of such general word without any indication of a particular intention to do so. %eneral $lauses Act. /012" This is a consolidating and amending act. N.Chandra v. Mahendra Nath, AIR 1963 SC 1894- The main purpose of 3eneral ,lauses Act is to avoid superfluous and repetition of language and to place in a single act provisions as regards definitions of words and legal principles of interpretation which would otherwise have to be incorporated in many different acts and regulations. The definitions and the rules of interpretation contained in the 3eneral ,lauses Act have to be read in every statute governed by it provided the statute does not contain anything repugnant to them in the sub!ect or context or does not exhibit a different intention.

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(nterpretative Process %adamer- $ermeretics" )t is a constructive process of )nterpretation. $onstructive Process" Theories which are universally accepted in interpretative process. -egative Hermeretics Process" )t starts from the assumption that very notion of universal valid interpretation is not tenable. %adamer3s Approach" #tatutory )nterpretation involves creative policy making by !udges and it is not !ust the courts figuring out the answers that was put in the statute by the enacting legislature. 1asically the interpreter is situated historically and the interpretation is a dynamic process. (very age has to understand the transmitted text in its own way. The real meaning of the text as it speaks to the interpreter does not depend on the contingencies of the author and to whom he originally wrote for. )t certainly is not identical with them for it always partly determined also by the historical situation by the interpreter and hence by the totality of the ob!ective course of the history. The chief metaphor in his interpretation is fusion of hori0ons. $e says every text contains assumptions and pre"understandings a hori0on which is quite different from the hori0on of the latter interpreter because both hori0ons are alienated from one another. The interpreter can never completely recreate or understand the text@s hori0on. )nterpreter@s effort is to find a common ground and the common ground is possible because the temporal gulf is filled with traditions and experiences that inform the current hori0on and link it with the previous one. $e gives certain suggestions. The text lacks manning until interpreted. 8ne does not understand a text in the abstract without application of the text to a specific problem since finding the meaning of a statute is not a mechanical operation. )t often involves interpreter@s choice among several competing answers. Therefore this creative supplementing of the law which is involved in interpretation is a task that is reserved for the !udge. 5workin also follows the line of 3adamer in )nterpretative &rocess. Pragmatic Hermeretics" 'egal )nterpretation is interpretative in character and it is different from other types of interpretation. #cientific )nterpretation" This is generally done by the scientists to give meaning to the phenomenon they observe. ,onversational )nterpretation" )t is a process by which the readers and the listeners understand their communicative utterances and a standard view of this kind of interpretation holds that the listener or the reader understand by duplicating or substituting themselves with the propositional attitude of the author. This method is common in the literature. The most important character in interpretation is creative or constructive interpretation. This legal interpretation has 2 characters. 'egal &ractice 'egal ,oncepts The need for creative interpretation arises when the community develops a complex interpretative attitude towards the rules; the interpretation is called for when a text or a practice is regarded as authoritative. The legal practice with regard to statute in a legal system is interpretative precisely because there are some values served by granting authority to the past political decisions that statute represents. $e does not agree with certain !urists. According to many !urists !urisprudence is not interpretative because there is no point in making practice of !udges authoritative for legal theories. The general theories propounded by a legal philosopher forms a constructive interpretation because they try to show the legal practice as a whole in its best light to achieve

equilibrium between legal practices as they find it and the !ustification of that practice. $ence according to 5workin no firm line divides 2urisprudence from ad!udication or any other aspects of legal practice. There are three &inds of interpretation lia,le for interpretative practice4 1. The text that !udges and others within a particular legal culture obligated to interpret and obey. 2. The text created by !udges within some particular legal culture which consists of !udicial practices in construing statutes and constitutions. 3. The work of prior legal theories some of whom seek to describe the !udges@ !urisprudence within some particular legal system and others who seek to do non"culture specific or general !urisprudence. Pragmatic Hermeretics" This is also constructive interpretation. )t is prevalent in the American #chool of 2urisprudence. +illiam 2ames and ,harles &ierce are the pioneers. &reviously there was dualism of mind and matter and soul and body. 1ut this dualism slowly vanished. 9ow it is based more on interpreting in a practical manner. 4or a pragmatist interpretation derives meaning not from the antecedents in perception but from the consequences of action. )ichard )otary3s wor& were carried forward ,y Stanley Fish 5-eo-Pragmatism6 )n 9eo"&ragmatism #tanley gives a new formula for interpretation. Action is guided by the tacit knowledge and not by application of general rules; principles or theories and metaphysical theories are not necessarily not possible for activities like !udging. The !udge is not a theorist of any kind at least when he is in the process of deciding cases and it is from this position. )t is from this position that he advances the concept of :)nterpretative ,ommunity<. Any written word derives its meaning from the society in which it is used. After enactment of a statute it is geared for the operation in the given society. 1ut within a society a community emerges that is so closely associated with the working of the above statute and that the community gives a meaning to the working of the statute. Therefore he contends that meaning should be the governing factor in interpreting the statutes by the courts. The community that gives the controlling meaning is called the interpretative community. $ritic- #tatutes are applicable only at a particular point of time. Also if there are more than one interpretative community then it would create a lot of confusion in the mind of the !udge. Precedent as a Source of Law 2udgment rendered by #upreme ,ourt is binding on all the subordinate courts $igh ,ourts and the tribunals within the territory of the country. )n case of a !udgment rendered by the $igh ,ourt it is binding in nature to the subordinate courts and the tribunals within its territory. )n other territories it only has persuasive value. )ndo" #wiss Time 'td. v. *mroo A)? 1BD1 &E$ 213 4ull 1ench" +here it is of matching authority then the weight should be given on the basis of rational and logical reasoning and we should not bind ourselves to the mere fortituous circumstances of time and death. Union o India v. !.S. S"#ra$ani"$" A)? 1B>= #, 2637" 1. #ubstantial and ,ompelling circumstances. 2. (rror or baneful effect of decision on the general interest of the public. 3. )nconsistency of the decision with the ,onstitutional &hilosophy and conflict between the benches of the court the decision of the larger bench should be followed. 7hat is the meaning of precedent as a source of law# Loose Sense" The precedence that are reported may be cited and probably be followed by the courts. This is was done till 1Bth ,entury.

After that another meaning got momentum. #trict meaning said that precedence not only have great authority but must be followed in certain circumstances. Holdsworth- He supports the loose meaning4 %oodheart- He supports the strict meaning4 Declaratory Theory of Precedence" )t is inapplicable to the principles of equity. &rinciples of equity has its origin in either custom or legislation. 5eclaratory theory says that the binding value is low since court simply declares on the basis of past historical values. Authoritative Precedent" 2udges must follow whether they approve of it or not. &ersuasive &recedent" 2udges are under no obligation to follow but which they will take into consideration and to which they will attach such weight as it seems to them proper. Therefore Authoritative &recedents are legal sources whereas &ersuasive &recedents as historical sources. Disregarding a Precedent" 8ver ruling is a way by which we disregard a precedent. There are circumstances which destroys the binding force of the precedent. 1. A,rogated Decision" A decision when abrogated by a statutory rule. 2. Affirmation or reversal ,y a different ground- The !udgment which was rendered by a lower court loses its relevance if such a !udgment is passed by a higher court. 3. (gnorance of Statute" )n such cases the decision loses its binding value. 6. )nconsistency with earlier decisions of $igh ,ourt 7. &recedent sub"silento or not fully argued =. 5ecision of equally divided courts" +here there is neither a ma!ority nor a minority !udgment. >. (rroneus 5ecision 7hat is )atio Decindi" The previous case is binding as to its ratio decidendi but ratio decidendi is a vague concept. ?atio decidendi is the binding part for the case at hand. %oodheart- $e does not accept the classical view that ratio is the principle of law which links the essential determination of the case with the essential or material facts of it and the statement of the !udge may or may not do that or may be formed too widely or too narrowly. )t is the general ground upon which the decision is based" #upreme ,ourt of )ndia $ow to ascertain ?atio 5ecidendi !rishna !"$ar v. Union o India- AIR 199% SC 1&8' The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the ma!or premise consisting of a pre"existing rule of law either statutory or !udgment and minor premise consisting of the material facts of the case under immediate consideration. Therfore we find that it is the ratio decidendi which is a binding precedent. 8ther material part is the 8biter 5ictum. Process of )easoning/4 a8or Premise 94 inor Premise Union o India v. Mani(lal )aner*ee" A)? 2FF= #, 2D66" 8nly ratio decidendi is binding and has precedent value. State o +rissa v. S"dhansh" She(har Mishra" A)? 1B=D #, =6>" A decision is an authority for what it decides and not for what can logically be deduced from it. The only thing in a !udgeGs decision binding a party is the principle upon which the case is decided. 8n our analysis we have to isolate the ratio of the case. A decision contains" 1. 4inding of %aterial 4acts" 5irect and inferential

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2. #tatement of the principle of law applicable to the legal problem disclosed by the facts. 3. 2udgments based on the combined effects of the above two. ?atio 5ecidendi is a statement of law applied to the legal problems raised by the facts as found upon which the decision is based. ,alveer Singh v. State o -"n*a#" 1B>B 3 #,, >67" Though we are able to find out the ingredients from the decision. 1ut later on when there is a similar situation it is very difficult for him to apply the ratio in that case because a rigorous division of facts has to be made which is not possible. )t is correct that a decision on a question of sentence depending upon the facts and circumstances of a case can never be regarded as a binding precedent much less GlawG declared under article 161 of ,onstitution of )ndia so as to bind all law courts within the territory of )ndia. Minerva Mills v. Union o India " A)? 1BDF #, 1>DB" )f a provision is uphold by the ma!ority the fact that the reasoning of some of the !udges is different from the ratio of that case will not affect its validity. .a/l"n ). v. !hadar0ali" A)? 1BDF #, 1>3F" 1. +here the earlier decision is altogether unpalatable to the court in the latter case the latter court may be persuaded to interpret it as narrowly as possible. 2. The limit of the process is reached when some !udges in extreme and unusual case are apt to cease on almost any factual difference between the previous case and the case before them in order to arrive at a different decision and the precedent is an authority on its Gactual factsG. AR An"t"la1 v. RS Na1a(" 8rder delivered without reference to relevant provision of the ,onstitution of )ndia or without arguments or without an act or a citation of authority is per incurium. A$rit ,as v. State o )ihar" A)? 2FFF #, 22=6" 5ecisions sub"silento have no binding value. Sae1ada Mossarrari v. 2ind"stan Steel 3i$ited, )hilai Steel -lant " A)? 1BDB #, 6F=" #ometimes well considered 8biter 5icta are taken as precedent but every passing expression of a !udge cannot be treated as an authority. S0aran Singh 3a$#a v. Union o India" A)? 1BB7 #, 1>2B" 9ormally even an 8biter 5icta is expected to be obeyed and followed. )t is binding on the $igh ,ourt but has only persuasive value for the #upreme ,ourt. Three Tests- 5)atio Decidendi Test6 7am,augh:s Test" )t is an imperative proposition of law without which case would have been decided otherwise. )nversion Test is in form of a dialogue between him and his student. $e sits with him and gave him some orders. 4rame carefully the supposed proposition of law and then insert in the proposition a word reversing its meaning. 'et him enquire if the court had conceived this new proposition to be good and had in its mind the decision would have been the same. )f the answer be affirmative then however excellent the original proposition may be the case is not a precedent for that proposition. )f the answer be negative the case is an authority for the original proposition. )n short when a case turns only on one point the proposition or the doctrine of the case the reason of the case the ratio decidendi must be a general rule without which the case must have been decided otherwise. San(ara Nara1anan v. ,ire4tor o 3egal St"dies, Madras 3a0 5o"rnal" 2ustice )smail was in a law teacher in his initial days. 'ecturers were removed without giving any opportunity of

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hearing. The service rules said that only permanent employees be given the opportunity of hearing. There was only one issueH i. +hether removal was legal or not. 8ld teachers are more competent than the new teachers. )n case of removal opportunity of hearing should be given. ii. #econd proposition materially affects the decision hence it is the ratio. )upert $ross" +hen +ambaugh states that we must insert the proposition that has a reverse meaning from that of the supposed ratio does he mean contrary or contradictory propositionA ?ules of law are complex proposition and contain contrary principles. i. )s ratio decidendi a proposition without which a case could not logically have been decided as it was decided or is the one without which the case would not have been decided as it was decided. ii. $ow to apply +ambaugh@s Test when the decision contains more than one ratio decidendiA iii. )n some cases the court may consider some facts as immaterial for the decision which others may consider as material. Hals,ury3s Test- 6"inn v. 3iatha$" 1BF1 Appeal ,ases 6B7" After stressing that every !udgment should be read in the lines of the facts of the case. 'ord $alsbury says that a case is only authority for what it actually decides. ) entirely deny that it can be quoted for a proposition that may seem to flow logically from it. 7a$illarasan8s Case" %adras 'aw 2ournal" 1BB1 ,ase. %oodheart3s Test"?atio 5ecindi is found out by ascertaining the facts treated as material by the !udge. The court is bound by the earlier decision must come to a similar conclusion unless there is a further fact in the case that is considered by the latter court as material or unless some fact treated as material is absent. $e uses the term :principles of law< in his essay called :5etermining the ?atio 5ecidendi ,ase<. $e discusses six points on how to find out ?atioH The principle of a case is not found out in the reasoning given in the opinion. The reason given by the !udge for his decision never constitutes as the binding part of the !udgment. The principle is not found in the rule of law set forth in the opinion. 4or it is not the rule of law set forth by the court or the rule enunciated as $alsbury puts it which necessary constitutes as principles of the case. There may be no rule of law set forth in the opinion or the rule of law stated may be too wide or too narrow. )n the appellate courts the rules of law set forth by the different !udges may have no relation to each other nevertheless each of these cases contain a principle which can be discovered on proper analysis. 2udges 8pinion need not be consulted in order to find the principle of law for which the case is an authority. The realist perception of the society held that it is not the !udge@s opinion but the way they decide cases which should be dominant sub!ect matter of truly scientific study of law. The principle of case is found by taking into accountH i. The facts treated of the case by the !udge as material ii. $is decision based on them. iii. )t follows that our task in analysing a case is not to state the facts and the conclusion but to state the material facts as seen by the !udge and his conclusion based on them. )t is by his choice of the material facts the !udge creates the law. 4irst is to find out all the necessary facts as seen by the !udge. #econdly to discover which of those facts were treated by the !udge as materialA The !udge never expresses his view about what facts are considered by him as material and what facts are immaterial. +e should apply various tests to determine which is material and

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immaterial. The conclusion based on hypothetical facts is dictum. A ?atio 5ecidendi cannot be based on assumed fact. ?upert ,ross says that in cases even dictum should be considered in finding out the ratio. $ustom as a Source of Law #almond says that ,ustom is the embodiment of those principles which have commended themselves to the national conscience as the principles of !ustice and public utility. .eeton says that ,ustomary laws are 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 a source of law because they are generally followed by the political society as a whole or by some part of it. Austin" ,ustom is not a source of law. )oscoe Pound- $ustomary Law 'aw formulated through ,ustom of popular action. 'aw formulated through !udicial decision. 'aw formulated by doctrinal writings and scientific discussions of legal principles. Historical School of Jurisprudence" Ion #avigny says that ,ustomary law which bought its content from habits of 2udicial 5ecision or from traditional modes of !uristic thinking expressing !ural ideas of the people of conviction of rights of its ideas or rights and rightful social control. The origin of custom of source of law" 3reek historical #chool is the innovator of custom as source of law. %ier&e" $e held that every true human association becomes a real and living entity animated by its own individual soul. Henry aine" $e said custom is the only source of law. ;$ustom is a conception posterior to that of themestes or 8udgment4< (ngredients of a $ustomAntiquity ,ontinuous &eaceful (n!oyment 8bligatory 4orce ,ertainty ,onsistency ?easonableness