UNIT I - INTRODUCTION

Q - What is Jurisprudence?

There is no universal or uniform definition of Jurisprudence since people have different

ideologies and notions throughout the world. It is a very vast subject. When an author talks
about political conditions of his society, it reflects that condition of law prevailing at that
time in that particular society. It is believed that Romans were the first who started to study
what is law.
Jurisprudence- Latin word Jurisprudentia-
Knowledge of Law or Skill in Law.
-Most of our law has been taken from Common Law System.
-Bentham is known as Father of Jurisprudence. Austin took his work further.

Bentham was the first one to analyse what is law. He divided his study into two parts:

1. Examination of Law as it is- Expositorial Approach- Command of Sovereign.

2. Examination of Law as it ought to be- Censorial Approach- Morality of Law.

However, Austin stuck to the idea that law is command of sovereign. The structure of
English Legal System remained with the formal analysis of law (Expositorial) and never
became what it ought to be (Censorial).
J. Stone also tried to define Jurisprudence. He said that it is a lawyers extraversion. He
further said that it is a lawyers examination of the percept, ideas and techniques of law in
the light derived from present knowledge in disciplines other than the law.
Thus, we see that there can be no goodness or badness in law. Law is made by the State so
there could be nothing good or bad about it. Jurisprudence is nothing but the science of law.
Definitions by:
1. Austin
2. Holland
3. Salmond
4. Keeton
5. Pound
6. Dias and Hughes

Austin- He said that Science of Jurisprudence is concerned with Positive Laws that is laws
strictly so called. It has nothing to do with the goodness or badness of law.

This has two aspects attached to it:

1. General Jurisprudence- It includes such subjects or ends of law as are common to all
system.
2. Particular Jurisprudence- It is the science of any actual system of law or any portion of it.

Basically, in essence they are same but in scope they are different.

Salmonds Criticism of Austin

He said that for a concept to fall within the category of General Jurisprudence, it should be
common in various systems of law. This is not always true as there could be concepts that
fall in neither of the two categories.
Hollands Criticism of Austin
He said that it is only the material which is particular and not the science itself.
Hollands Definition- Jurisprudence means the formal science of positive laws. It is an
analytical science rather than a material science.
1. He defined the term positive law. He said that Positive Law means the general rule of
external human action enforced by a sovereign political authority.
2. We can see that, he simply added the word formal in Austins definition. Formal here
means that we study only the form and not the essence. We study only the external
features and do not go into the intricacies of the subject. According to him, how positive law
is applied and how it is particular is not the concern of Jurisprudence.
3. The reason for using the word Formal Science is that it describes only the form or the
external sight of the subject and not its internal contents. According to Holland,
Jurisprudence is not concerned with the actual material contents of law but only with its
fundamental conceptions. Therefore, Jurisprudence is a Formal Science.
4. This definition has been criticized by Gray and Dr. Jenks. According to them,
Jurisprudence is a formal science because it is concerned with the form, conditions, social
life, human relations that have grown up in the society and to which society attaches legal
significance.
5. Holland said that Jurisprudence is a science because it is a systematized and properly co-
ordinated knowledge of the subject of intellectual enquiry. The term positive law confines
the enquiry to these social relations which are regulated by the rules imposed by the States
and enforced by the Courts of law. Therefore, it is a formal science of positive law.
6. Formal as a prefix indicates that the science deals only with the purposes, methods and
ideas on the basis of the legal system as distinct from material science which deals only with
the concrete details of law.
This definition has been criticized on the ground that this definition is concerned only with
the form and not the intricacies.
Salmond- He said that Jurisprudence is Science of Law. By law he meant law of the land or
civil law. He divided Jurisprudence into two parts:

1. Generic- This includes the entire body of legal doctrines.

2. Specific- This deals with the particular department or any portion of the doctrines.

Specific is further divided into three parts:

1. Analytical, Expository or Systematic- It deals with the contents of an actual legal system
existing at any time, past or the present.
2. Historical- It is concerned with the legal history and its development
3. Ethical- According to him, the purpose of any legislation is to set forth laws as it ought to
be. It deals with the ideal of the legal system and the purpose for which it exists.

Criticism of Salmond- Critics says that it is not an accurate definition. Salmond only gave the
structure and failed to provide any clarity of thou
Keeton-

He considered Jurisprudence as the study and systematic arrangement of the general

principles of law. According to him, Jurisprudence deals with the distinction between Public
and Private Laws and considers the contents of principle departments of law.
Roscoe Pound- He described Jurisprudence as the science of law using the
term law in juridical sense as denoting the body of principles recognized or enforced by
public and regular tribunals in the Administration of Justice.

Dias and Hughes-

They believed Jurisprudence as any thought or writing about law rather than a technical
exposition of a branch of law itself.
Thus, we can safely say that Jurisprudence is the study of fundamental legal principles.

Scope of Jurisprudence-
After reading all the above mentioned definitions, we would find that Austin was the only
one who tried to limit the scope of jurisprudence. He tried to segregate morals and theology
from the study of jurisprudence. However, the study of jurisprudence cannot be
circumscribed because it includes all human conduct in the State and the Society.

Approaches to the study of Jurisprudence-

There are two ways
1. Empirical- Facts to Generalization.

2. A Priori- Start with Generalization in light of which the facts are examined.

Q What is the significance of jurisprudence?

Significance and Utility of the Study of Jurisprudence

1. This subject has its own intrinsic interest and value because this is a subject of serious
scholarship and research; researchers in Jurisprudence contribute to the development of
society by having repercussions in the whole legal, political and social school of thoughts.
One of the tasks of this subject is to construct and elucidate concepts serving to render the
complexities of law more manageable and more rational. It is the belief of this subject that
the theory can help to improve practice.

2. Jurisprudence also has an educational value. It helps in the logical analysis of the legal
concepts and it sharpens the logical techniques of the lawyer. The study of jurisprudence
helps to combat the lawyers occupational view of formalism which leads to excessive
concentration on legal rules for their own sake and disregard of the social function of the
law.

3. The study of jurisprudence helps to put law in its proper context by considering the needs
of the society and by taking note of the advances in related and relevant disciplines.

4. Jurisprudence can teach the people to look if not forward, at least sideways and around
them and realize that answers to a new legal problem must be found by a consideration of
present social needs and not in the wisdom of the past.

5. Jurisprudence is the eye of law and the grammar of law because it throws light on basic
ideas and fundamental principles of law. Therefore, by understanding the nature of law, its
concepts and distinctions, a lawyer can find out the actual rule of law. It also helps in
knowing the language, grammar, the basis of treatment and assumptions upon which the
subject rests. Therefore, some logical training is necessary for a lawyer which he can find
from the study of Jurisprudence.

6. It trains the critical faculties of the mind of the students so that they can dictate fallacies
and use accurate legal terminology and expression.

7. It helps a lawyer in his practical work. A lawyer always has to tackle new problems every
day. This he can handle through his knowledge of Jurisprudence which trains his mind to
find alternative legal channels of thought.

8. Jurisprudence helps the judges and lawyers in ascertaining the true meaning of the laws
passed by the legislators by providing the rules of interpretation. Therefore, the study of
jurisprudence should not be confined to the study of positive laws but also must include
normative study i.e. that study should deal with the improvement of law in the context of
prevailing socio-economic and political philosophies of time, place and circumstances.

9. Professor Dias said that the study of jurisprudence is an opportunity for the lawyer to
bring theory and life into focus, for it concerns human thought in relation to social
existence.
Q Discuss relationship of jurisprudence with other social sciences.

Relationship of Jurisprudence with other Social Sciences

Sociology and Jurisprudence- There is a branch called as Sociological Jurisprudence. This
branch is based on social theories. It is essentially concerned with the influence of law on
the society at large particularly when we talk about social welfare. The approach from
sociological perspective towards law is different from a lawyers perspective. The study of
sociology has helped Jurisprudence in its approach. Behind all legal aspects, there is always
something social. However, Sociology of Law is different from Sociological Jurisprudence.

Jurisprudence and Psychology- No human science can be described properly without a

thorough knowledge of Human Mind. Hence, Psychology has a close connection with
Jurisprudence. Relationship of Psychology and Law is established in the branch
of Criminological Jurisprudence. Both psychology and jurisprudence are interested in
solving questions such as motive behind a crime, criminal personality, reasons for crime etc.

Jurisprudence and Ethics- Ethics has been defined as the science of Human Conduct. It
strives for ideal Human Behaviour. This is how Ethics and Jurisprudence are interconnected:

a. Ideal Moral Code- This could be found in relation to Natural Law.

b. Positive Moral Code- This could be found in relation to Law as the Command of the
Sovereign.

c. Ethics is concerned with good human conduct in the light of public opinion.

d. Jurisprudence is related with Positive Morality in so far as law is the instrument to assert
positive ethics.

e. Jurisprudence believes that Legislations must be based on ethical principles. It is not to be

divorced from Human principles.
f. Ethics believes that No law is good unless it is based on sound principles of human value.

g. A Jurist should be adept in this science because unless he studies ethics, he wont be able
to criticize the law.
However, Austin disagreed with this relationship
Jurisprudence and Economics- Economics studies mans efforts in satisfying his wants and
producing and distributing wealth. Both Jurisprudence and Economics are sciences and both
aim to regulate lives of the people. Both of them try to develop the society and improve life
of an individual. Karl Marx was a pioneer in this regard.
Jurisprudence and History- History studies past events. Development of Law for
administration of justice becomes sound if we know the history and background of
legislations and the way law has evolved. The branch is known as Historical Jurisprudence.
Jurisprudence and Politics- In a politically organized society, there are regulations and laws
which lay down authoritatively what a man may and may not do. Thus, there is a deep
connected between politics and Jurisprudence.

Q Explain the concept of justice and discuss its kinds also.

Concept of Justice According to Law

Justice is rendered to the people by the courts. Justice rendered must always be in
accordance with the law. However, it is not always justice that is rendered by the courts.
This is because the judges are not legislators; they are merely the interpreters of law. It is
not the duty of the court to correct the defects in law. The only function of the judges is to
administer the law as made by the legislature. Hence, in the modern state, the
administration of justice according to law is commonly considered as implying recognition
of fixed rules.
Salmond-
Salmond said that the Definition of law itself reflects that Administration of Justice has to
be done by the state on the basis of rules and principles recognized.
Roscoe Pound-
He believed that it is the court who has to administer justice in a state. Both, Roscoe Pound
and Salmond emphasized upon the Courts in propounding law. However, Roscoe Pound
stressed more on the role of courts whereas Salmond stressed more on the role of the
State.
Administration of Justice-
There are two essential functions of every State:
a. War
b. Administration of Justice
Theorists have said that that if a state is not capable of performing the above mentioned
functions, it is not a state.
Salmond said that the Administration of Justice implies maintenance of rights within a
political community by means of the physical force of the state. However orderly society
may be, the element of force is always present and operative. It becomes latent but it still
exists. Also, in a society, social sanction is an effective instrument only if it is associated with
and supplemented by concentrated and irresistible force of the community. Social Sanction
cannot be a substitute for the physical force of the state.
Origin and Growth of the concept of Administration of Justice
It is the social nature of men that inspires him to live in a community. This social nature of
men demands that he must reside in a society. However, living in a society leads to conflict
of interests and gives rise to the need for Administration of Justice. This is considered to be
the historical basis for the growth of administration of justice.
Once the need for Administration of Justice was recognized, the State came into being.
Initially, the so called State was not strong enough to regulate crime and impart punishment
to the criminals. During that point of time, the law was one of Private Vengeance and Self-
Help.
In the next phase of the development of Administration of Justice, the State came into full-
fledged existence. With the growth in the power of the state, the state began to act like a
judge to assess liability and impose penalty on the individuals. The concept of Public Enquiry
and Punishment became a reality.
Thus, the modern Administration of Justice is a natural corollary to the growth in the power
of the political state.
Advantages and Disadvantages of Legal Justice
a. Advantages of Legal Justice
 Uniformity and Certainty- Legal Justice made sure that there is no scope of arbitrary
action and even the judges had to decide according to the declared law of the State.
As law is certain, people could shape their conduct accordingly.
Legal Justice also made sure that the law is not for the convenience of a particular
special class. Judges must act according to the law. It is through this that impartiality
has been secured in the Administration of Justice. Sir Edward Coke said that the
wisdom of law is wiser than any mans wisdom and Justice represents wisdom of
the community.
b. Disadvantages of Legal Justice
It is rigid. The rate of change in the society is always more rapid than the rate of
change in the Legal Justice.
Legal Justice is full of technicalities and formalities.
Legal Justice is complex. Our society is complex too. Thus, to meet the needs of the
society, we need complex laws.
Salmond said that law is without doubt a remedy for greater evils yet it brings with
it evils of its own.
Classification of Justice- It can be divided into two parts
Private Justice- This is considered to be the justice between individuals. Private
Justice is a relationship between individuals. It is an end for which the court exists.
Private persons are not allowed to take the law in their own hands. It reflects the
ethical justice that ought to exist between the individuals.
Public Justice- Public Justice administered by the state through its own tribunals
and courts. It regulates the relationship between the courts and individuals. Public
Justice is the means by which courts fulfil that ends of Private Justice.
Civil and Criminal Justice -
Civil Justice and Criminal follow from Public Justice and Private Justice. Looking from a
practical standpoint, important distinctions lie in the legal consequences of the two. Civil
Justice and Criminal Justice are administered by a different set of courts.
A Civil Proceeding usually results in a judgment for damages or injunction or restitution or
specific decree or other such civil reliefs. However, a Criminal Proceeding usually results in
punishment. There are myriad numbers of punishments ranging from hanging to fine to
probation. Therefore, Salmond said that the basic objective of a criminal proceeding is
punishment and the usual goal of a civil proceeding is not punitive.

Q- Define Law and discuss its types.

Law is, generally, a system of rules which are enforced through social institutions to govern
behaviour. Laws can be made by legislatures through legislation (resulting in statutes), the
executive through decrees and regulations, or judges through binding precedents (normally
in common law jurisdictions). Private individuals can create legally binding contracts,
including (in some jurisdictions) arbitration agreements that may elect to accept alternative
arbitration to the normal court process. The formation of laws themselves may be
influenced by a constitution (written or unwritten) and the rights encoded therein. The law
shapes politics, economics, and society in various ways and serves as a mediator of relations
between people.

A general distinction can be made between (a) civil law jurisdictions , in which the
legislature or other central body codifies and consolidates their laws, and (b) common
law systems, where judge-made binding precedents are accepted. Historically, religious
laws played a significant role even in settling of secular matters, which is still the case in
some religious communities, particularly Jewish, and some countries, particularly Islamic.
Islamic Sharia law is the world's most widely used religious law.

The adjudication of the law is generally divided into two main areas referred to as

Criminal law - Criminal law deals with conduct that is considered harmful to social
order and in which the guilty party may be imprisoned or fined.

Civil law - deals with the resolution of lawsuits (disputes) between individuals or
organisations. These resolutions seek to provide a legal remedy (often
monetary damages) to the winning litigant. Under civil law, the following
specialties, among others, exist: Contract law regulates everything from buying a
bus ticket to trading on derivatives markets. Property law regulates the transfer and
title of personal property and real property. Trust law applies to assets held for
investment and financial security. Tort law allows claims for compensation if a
person's property is harmed. Constitutional law provides a framework for the
creation of law, the protection of human rights and the election of political
 representatives. Administrative law is used to review the decisions of government
agencies. International law governs affairs between sovereign states in activities
ranging from trade to military action. To implement and enforce the law and
provide services to the public by public servants, a government's bureaucracy,
military, and police are vital. While all these organs of the state are creatures
created and bound by law, an independent legal profession and a vibrant civil
society inform and support their progress.

Public Law

Areas of law that involves matters related to the state:

Constitutional law: e.g. role and power of the institutions within the state
Administrative law: e.g. regulates public authorities, accountability of public
authorities
Criminal law: state responsible for prosecution and justice

Private Law

law that affects matters between individuals (whether people, groups of people or
companies)
Contract
Family
Tort
Property
Substantive law defines or creates the rights and obligations of persons and
governments.

Procedural law provides the steps one must follow in order to avail oneself of ones
legal rights or enforce anothers legal obligations

Stare decisis is judge made law based on precedent.

Precedents are judicial decisions that give rise to legal principles that can be applied
in future cases based upon similar facts.
 Precedents and other forms of positive law, such as statutes, constitutions, and
regulations, are referred to as binding authority and must be followed.

Q Discuss different sources of law .

SOURCES OF LAW -

To have a clear and complete understanding of law, it is essential to understand the sources
of law. Sources of law mean the sources from where law or the binding rules of human
conduct originate. In other words, law is derived from sources. Jurists have different views
on the origin and sources of law, as they have regarding the definition of law. As the term
'law 'has several meanings, legal experts approach the sources of law from various angles.
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine
consider custom as the most important source of law. Natural law school considers nature
and human reason as the source of law, while theologians consider the religious scripts as
sources of law. Although there are various claims and counter claims regarding the sources
of law, it is true that in almost all societies, law has been derived from similar sources.

CLASSIFICATION OF SOURCES

Salmond, an English Jurist, has classified sources of law into the following categories:

Formal Sources of Law: These are the sources from which law derives its force and validity.
A law enacted by the State or Sovereign falls into this category.

Material Sources of Law: It refers to the material of law. In simple words, it is all about the
matter from where the laws are derived. Customs fall in this category of law.

However, if we look around and examine the contemporary legal systems, it may be seen
that most legal systems are based on legislations. At the same time, it is equally true that
sometimes customs play a significant role in the legal system of a country. In some of the
legal systems, court decisions are binding as law.

On the basis of the above discussion, three major sources of law can be identified in any
modern society are as follows:

i. Custom

ii. Judicial precedent

iii. Legislation

Q Explain customs as a source of Law and discuss its essentials.

CUSTOM AS A SOURCE OF LAW

A custom, to be valid, must be observed continuously for a very long time without any
interruption. Further, a practice must be supported not only for a very long time, but it must
also be supported by the opinion of the general public and morality. However, every custom
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages
which are within the prohibited degrees of relationship. However, the Act still permits
marriages within the prohibited degree of relationship if there is a proven custom within a
certain community.

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In
fact it was considered as the real source of law. With the passage of time and the advent of
modern Civilization, the importance of custom as a source of law diminished and other
sources such as judicial precedents and legislation gained importance. There is no doubt
about the fact that custom is an important source of law. Broadly, there are two views
which prevail in this regard on whether custom is law. Jurists such as Austin opposed
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny
Consider custom as the main source of law. According to him the real source of law is the
will of the people and not the will of the sovereign. The will of the people has always been
reflected in the custom and traditions of the society.
Custom is hence a main source of law.Customs can be broadly divided into two classes:
i. Customs without sanction: These kinds of customs are non-obligatory in nature and are
followed because of public opinion.
ii. Customs with sanction: These customs are binding in nature and are enforced by the
State. These customs may further be divided into the following categories:
(a) Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts. Legal custom may be further
Classified into the following two types -
General Customs: These types of customs prevail throughout the territory of the State.
Local Customs: Local customs are applicable to a part of the State, or a particular region of
the country.
(b) Conventional Customs: Conventional customs are binding on the parties to an
agreement. When two or more persons enter into an agreement related to a trade, it is
presumed in law that they make the contract in accordance with established convention or
usage of that trade. For instance an agreement between landlord and tenant regarding the
payment of the rent will be governed by convention prevailing in this regard.
ESSENTIALS OF CUSTOMS-
All customs cannot be accepted as sources of law, nor can all customs be recognized and
enforced by the courts. The jurists and courts have laid down some essential tests for
customs to be recognized as valid sources of law. These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for a
long time, even beyond human memory. In England, the year 1189 i.e. the reign of
Richard I King of England has been fixed for the determination of validity of customs.
However, in India there is no such time limit for deciding the antiquity of the
customs. The only condition is that those should have been in practice since time
immemorial.
Continuous: A custom to be valid should have been in continuous practice. It must
have been enjoyed without any kind of interruption. Long intervals and disrupted
practice of a custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the
knowledge of the community. It should not have been practised secretly. A custom
must be proved to be a matter of right. A mere doubtful exercise of a right is not
sufficient to a claim as a valid custom.
Reasonableness: A custom must conform to the norms of justice and public utility. A
Custom, to be valid, should be based on rationality and reason. If a custom is likely to
cause more inconvenience and mischief than convenience, such a custom will not be valid.
Morality: A custom which is immoral or opposed to public policy cannot be a valid
custom. Courts have declared many customs as invalid as they were practised for
immoral purpose or were opposed to public policy. Bombay High Court in the case of
 Mathura Naikon v. Esu Naekin, ((1880) ILR 4 Bom 545) held that, the custom of
adopting a girl for immoral purposes is illegal.
Status with regard to: In any modern State, when a new legislation is enacted, it is
generally preferred to the custom. Therefore, it is imperative that a custom must not
be opposed or contrary to legislation. Many customs have been abrogated by laws
enacted by the legislative bodies in India. For instance, the customary practice of
child marriage has been declared as an offence. Similarly, adoption laws have been
changed by legislation in India.

Custom was the most important source of law in ancient India. Even the British
initially adopted the policy of non-intervention in personal matters of Hindus and Muslims.
The British courts, in particular, the Privy Council, in cases such as Mohammad Ibrahim v.
Shaik Ibrahim, (AIR 1922 PC 59) observed and underlined the importance of custom in
moulding the law. At the same time, it is important to note that customs were not uniform
or universal throughout the country. Some regions of the country had their own customs
and usages.

These variances in customs were also considered a hindrance in the integration of various
communities of the country. During our freedom struggle, there were parallel movements
for social reform in the country. Social reformers raised many issues related to women and
children such as widow re-marriage and child marriage. After independence and the
enactment of the Constitution, the Indian Parliament took many steps and abrogated many
old customary practices by some progressive legislation. Hindu personal laws were codified
and the Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955, were adopted. The
Constitution of India provided a positive environment for these social changes. After
independence, the importance of custom has definitely diminished as a source of law and
judicial precedent, and legislation has gained a more significant place. A large part of Indian
law, especially personal laws, is still governed by the customs. Hindu Personal Laws that
have been codified are as follows:

a) Hindu Marriage Act, 1955

b) Hindu Succession Act, 1956,

c) Hindu Minority and Guardianship Act. 1956 and

d) Hindu Adoptions and Maintenance Act, 1956

Q Explain Precedent as a declarative law and discuss its types.

JUDICIAL PRECEDENT AS A SOURCE OF LAW
DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY
In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow.
This binding character of the previously decided cases is important, considering the
hierarchy of the courts established by the legal systems of a particular country. In the case
of India, this hierarchy has been established by the Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation
nor is it as old as custom. It is an important feature of the English legal system as well as of
other common law countries which follow the English legal system.
In most of the developed legal systems, judiciary is considered to be an important organ of
the State. In modern societies, rights are generally conferred on the citizens by legislation
and the main function of the judiciary is to adjudicate upon these rights. The judges decide
those matters on the basis of the legislations and prevailing custom but while doing so, they
also play a creative role by interpreting the law. By this exercise, they lay down new
principles and rules which are generally binding on lower courts within a legal system.
Given this background, it is important to understand the extent to which the courts are
guided by precedents. It is equally important to understand what really constitutes the
judicial decision in a case and which part of the decision is actually binding on the lower
courts.
Judicial decisions can be divided into following two parts:
(I) Ratio decidendi (Reason of Decision):'Ratio decidendi' refers to the binding part of a
judgment. 'Ratio decidendi' literally means reasons for the decision. It is considered as the
general principle which is deduced by the courts from the facts of a particular case. It
becomes generally binding on the lower courts in future cases involving similar questions of
law.
(ii) Obiter dicta (Said by the way): An 'obiter dictum' refers to parts of judicial decisions
which are general observations of the judge and do not have any binding authority.
However, obiter of a higher judiciary is given due consideration by lower courts and has
persuasive value.
Having considered the various aspects of the precedent i.e. ratio and obiter, it is clear that
the system of precedent is based on the hierarchy of courts. Therefore, it becomes
important to understand the hierarchy of courts in order to understand precedent.
Every legal system has its own distinct features. Therefore, the doctrine of precedent is
applied differently in different countries. In India, the doctrine of precedent is based on the
concept of hierarchy of courts.
The modern system of precedent developed in India during the British rule. It was the
British who introduced the system of courts in India. By the Regulating Act of 1773, a
Supreme Court was established at Calcutta (Kolkata). Later on, other Supreme Courts were
established in other presidency towns also. After that, High Courts were established in
provinces. However, there was no hierarchy of courts between the Supreme Court and High
Courts, and they were independent of one another.
The hierarchy of courts could be established only when the judicial committee of the Privy
Council became the final appellate tribunal. Another milestone regarding the hierarchy of
courts was the Government of India Act, 1935, which established the Federal Court.
Therefore, as far as hierarchy of courts in India before Independence was concerned, the
Privy Council was the final appellate court while other courts below it like the Federal Court,
High Court, and the Presidency and Moffussil courts were bound to follow the decisions of
their superior courts.
Declaratory Theory of Precedence- This theory holds that judges do not create or change
the law, but they declare what the law has always been. This theory believes that the
Principles of Equity have their origin in either customs or legislation. However, critics of this
theory say that most of the Principles of Equity have been made by the judges and hence,
declaratory theory fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or
not. They are classified as Legal Sources.
2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper
to them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.

There are circumstances that destroy the binding force of the precedent:

1 .Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court

loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.

7. Erroneous Decision

Q Discuss legislation as a source of law and differentiate between custom and

legislation.
LEGISLATION AS A SOURCE OF LAW -
In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means
"to make" or "set". Therefore, the word 'legislation' means the 'making of law'. The
importance of legislation as a source of law can be measured from the fact that it is backed
by the authority of the sovereign, and it is directly enacted and recognised by the State. The
expression 'legislation' has been used in various senses. It includes every method of law-
making.
In the strict sense it means laws enacted by the sovereign or any other person or institution
authorised by him.
The kinds of legislation can be explained as follows:
Supreme Legislation: When the laws are directly enacted by the sovereign, it is considered
as supreme legislation. One of the features of Supreme legislation is that, no other authority
except the sovereign itself can control or check it. The laws enacted by the British
Parliament fall in this category, as the British Parliament is considered as sovereign. The law
enacted by the Indian Parliament also falls in the same category. However in India, powers
of the Parliament are regulated and controlled by the Constitution, through the laws
enacted by it are not under the control of any other legislative body.
Subordinate Legislation: Subordinate legislation is a legislation which is made by any
authority which is subordinate to the supreme or sovereign authority. It is enacted under
the delegated authority of the sovereign. The origin, validity, existence and continuance of
such legislation totally depend on the will of the sovereign authority. Subordinate legislation
further can be classified into the following types:-
Autonomous Law:
When a group of individuals recognized or incorporated under the law as an autonomous
body, is conferred with the power to make rules and regulation, the laws made by such
body fall under autonomous law. For instance, laws made by the bodies like Universities,
incorporated companies etc. fall in this category of legislation.
Judicial Rules:
In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. For instance, under the Constitution of India, the Supreme Court
and High Courts have been conferred with such kinds of power to regulate procedure and
administration.
Local laws:
In some countries, local bodies are recognized and conferred with the law-making powers.
They are entitled to make bye-laws in their respective jurisdictions. In India, local bodies like
Panchayats and Municipal Corporations have been recognized by the Constitution through
the 73rd and 74th Constitutional amendments. The rules and bye-laws enacted by them are
examples of local laws.
Colonial Law:
Laws made by colonial countries for their colonies or the countries controlled by them are
known as colonial laws. For a long time, India was governed by the laws passed by the
British Parliament. However, as most countries of the world have gained independence
from the colonial powers, this legislation is losing its importance and may not be recognized
as a kind of legislation.
Laws made by the Executive:
Laws are supposed to be enacted by the sovereign and the sovereignty may be vested in
one authority or it may be distributed among the various organs of the State. In most of the
modern States, sovereignty is generally divided among the three organs of the State. The
three organs of the State namely legislature, executive and judiciary are vested with three
different functions. The prime responsibility of law-making vests with the legislature, the
executive is vested with the responsibility to implement the laws enacted by the legislature.
However, the legislature delegates some of its law-making powers to executive organs
which are also termed delegated legislation.
Delegated legislation -
Delegated legislation is also a class of subordinate legislation- This is a type of subordinate
legislation. It is well-known that the main function of the executive is to enforce the law. In
case of Delegated Legislation, executive frames the provisions of law. This is also known as
executive legislation. The executive makes laws in the form of orders, by laws etc.
Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits
of the enabling act.
The main purpose of such legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come
after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen
while formulation of the enabling act. Delegated Legislation gives flexibility to law and there
is ample scope for adjustment in the light of experiences gained during the working of
legislation.
Difference between Legislation and Customary Law
1. Legislation has its source in theory whereas customary law grows out of practice.
2. The existence of Legislation is essentially de Jure whereas existence of customary law is
essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary law
is the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.
5. Legislation expresses relationship between man and state whereas customary law
expresses relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the outcome
of necessity, utility and imitation.