Introduction to Law

Sources of Indian Law

Meaning of Law
It means any rule of conduct, standard or pattern, to which actions are required to conform; if not conformed, sanctions are imposed. Oxford Dictionary: The body of rules whether proceeding from formal enactment or from custom, which a particular State or community recognizes as binding on its subjects or members.

Elements or Characteristics of Law

Law is a body of rules: These rules prescribe
the conduct, standard or pattern to which actions of the persons in the state are required to conform. For guidance/conduct of persons: The rules embodied in the law are made, so as to ensure that actions of the persons in the society conform to some predetermined standard or pattern. Law is imposed: On the members to bring about an order in the group, enabling it to continue and prosper.

 Enforced by the executive: Unless a law is

enforced it ceases to be a law and those persons subject to it will regard it as dead.

Law presupposes a State: A state is a

territorial division, with people therein subject to uniform system of law administered by some authority of the State.

Content of Law: Law responds to public

opinion and changes accordingly. Therefore, amendments are made in different laws from time to time.

 Two basic ideas involved in law: (i) To maintain

some form of social order in a group and (ii) to compel members of the group to be within that order.

To serve some purpose which may be social, economic or political: Law in its widest sense
may include: (i) Moral rules or etiquettes, the nonobservance of which may lead to public ridicule, (ii) Law of the land the non-observance of which may lead to arrest, imprisonment, etc. (iii) Rules of international law the non-observance of it may lead to social boycott, trade-sanctions, cold war, hot war, proxy war, etc.

Law & Morality

One of the characteristics of law is guidance or conduct of persons. This is so in the case of morality also as there is a close relationship between the two. In fact law not only has its origin in morality, but also is easier to enforce when people yield to government for moral reasons.

Moral Rules Example Respect to elderly people

Moral & Legal Rules

Examples Murder Stealing Fraud Legal Rules Examples Parking Offences Exceeding Speed limits

Ignorance of Law is No Excuse

The maxim ignorantia juris non excusat places a burden on every member of the society with the knowledge of law. He is presumed to know the legal rules. He cannot take the plea that he did not know them. He can obtain expert guidance from those who possess legal knowledge or from books on law.

Sources of Indian Law

Primary Sources: (a) Customs, (b) Judicial
Precedents, (c) Statutes (supreme & subordinate) and (d) Personal Law. Secondary Sources: (a) English Law (common law, equity, law merchant, statute law) and (b) Justice, equity and good conscience. Customary Law: It is the uniformity of conduct of all persons under like circumstances. That is, when a particular course of conduct is followed again and again, it becomes a custom. A valid custom is law unless it has been overridden by legislation. For example, the Hindu Marriage Act.

Requisites of a Valid Custom

Antiquity Used for a very long time. Certainty Reasonableness And not opposed to the principles of justice, equity & good conscience. Continuous Observance Conformity That is, not opposed to statute law, public policy, and morality. Unanimity of Opinion Must be supported by public at large. Peaceable Enjoyment Without dispute in law court. Consistency Must not come into conflict with other established customs.

Judicial Precedents
It is based on the principle that a rule of law which has been settled by a series of decisions generally should be binding on the court and should be followed in similar cases. It is the duty of the judges to follow the same; they cannot substitute their opinions for the established rule of law. This is known as the doctrine of stare decisis. It means stand by the decision.

Kinds of Judicial Precedents

Declatory and Original Precedents
(i) Those that merely apply existing rules of law are known as declaratory precedents. (ii) Those that create entirely new rules of law are known as original precedents.

Authoritative and Persuasive Precedents

(i) The former is one which judges must follow whether they approve of it or not. Thus, the decisions of superior courts bind the subordinate courts. (ii) The latter is one which the judges are not obliged to follow but will consider where relevant.

Statute
The statutory law or legislation is the main source of law. This law is created by the Parliament. In India, the Constitution empowers the Parliament and state legislatures to promulgate law for the guidance or conduct of persons to whom it is, expressly or by implication, made applicable. Not merely a source of new law, but is equally effective in abolishing that which already exists. Thus, it has what is known as Abrogative Power.

Personal Law
Many times, a point of issue between the parties to a dispute is not covered by any statute or custom. In such cases, the courts are required to apply the personal law of the parties. For example, The Hindu Succession Act; The Hindu Minority and Guardianship Act; The Wakf Act. The Muslim Personal Law Board is concerned with statutory law and custom in all matters of inheritance, will, marriage, etc.

English Law
Common Law: Consists of all those unwritten
legal doctrines embodying customs and traditions developed over centuries by the English courts.

Equity: It means natural justice. It is a body of

legal doctrines and rules emanating from the administrations of justice, developed to enlarge, supplement or override a narrow rigid system of existing law of the land.

 Statute Law: It consists of the law passed by the

Parliament. It can pass any law it pleases and can override its own previous Acts and decisions of the courts. The Merchant Law: It is based to a great extent on customs and usages prevalent among merchants and traders of the middle ages. The Common Law was found to be unsatisfactory in dealing with disputes between merchants. So the merchants developed certain rules based upon customs and usages to govern their mercantile transactions. These rules were known as Lex Mercatoria or the Law Merchant.