SOURCES OF LAW: HOW THE SOURCES SHAPES THE MODERN LEGAL PHILOSOPHIES

The author in this article has discussed the various sources of law and their importance in the evolution of law as it is today.


MEANING AND INTRODUCTION TO JURISPRUDENCE


The word jurisprudence derives from the Latin term jurisprudentia, which means "the study, knowledge, or science of law." Jurisprudence commonly means the philosophy of law. Legal philosophy has many aspects, but four of them are the most common -


· The first and the most prevalent form of jurisprudence seeks to analyse, explain, classify, and criticize entire bodies of law. Law school textbooks and legal encyclopedias represent this type of scholarship.

· The second type of jurisprudence compares and contrasts law with other fields of knowledge such as literature, economics, religion, and the social sciences.

· The third type of jurisprudence seeks to reveal the historical, moral, and cultural basis of a particular legal concept.

· The fourth body of jurisprudence focuses on finding the answer to such abstract questions as “What is law?” and “How do judges (properly) decide cases?”


STUDY OF LAW AND HOW CASES ARE DECIDED ON TH BASIS OF LAWS


“Law is a system of rules that are created and enforced through social or governmental institutions to regulate behaviour." It has been defined both as "the science of justice" and "the art of justice". Law regulates and ensures that individuals or a community adhere to the will of the state. State-enforced laws can be made by a collective legislature or by a single legislator, resulting in statutes, by the executive through decrees and regulations, or established by judges through precedent, normally in common law jurisdictions. Private individuals can create legally binding contracts, including 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 tacit, and the rights encoded therein. The law shapes politics, economics, history, and society in various ways and serves as a mediator of relations between people.”[1]

“Sources of law are the origins of laws, the binding rules that enable any state to govern its territory. The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity.”[2]

Every developed legal system possesses a judicial organ. The main function of the judicial organ is to adjudicate the rights and obligations of the citizens. In the beginning, in this adjudication, the courts are guided by customs and their own sense of justice. As society progresses, legislation becomes the main source of law and the judges decide cases according to it. Even at this stage, the judges perform some creative functions.

In the cases of the first impression, in the matters of interpretation, or in filling up any lacuna in the law made by legislation the judges, to some extent, depend on their sense of right and wrong, and in doing so, they adopt the law to the changed conditions.

The judiciary adjudicates the rights and obligations of the citizens, as per legislation, customs as well as a sense of justice. Judges often also take guidance from previous decisions and rely on past interpretations of questions of law. Such instances or cases that may be taken as an example of a rule for subsequent cases are known as precedents.


THE SOURCES OF LAW


Sources of law mean the sources from where the law or the binding rules of human conduct originate. In other words, the law is derived from sources. As the term ‘law ‘has several meanings, legal experts approach the sources of law from various angles. There are three major sources of law can be identified in any modern society are as follows:

· Custom

· Judicial precedent

· Legislation


HOW THE SOURCES OF LAW SHAPES THE MODERN LEGAL PHILOSOPHIES


1. CUSTOMS AS AN IMPORTANCE SOURCE OF LAW IN MODERN LEGAL PHILOSOPHIES


The Custom as a source of law[3] is very important in all legal systems because it is beyond doubt that they appeared before the law. They came with the society. They are regarded as the founding stone of the legal system and the basis of law. Subsequently, the growth of society leads to the diminishing value of customs.

Customs are obeyed because people feel that it embodies the principles of justice and public utility. The real sanction behind custom is public opinion. Before the emergence of state people used to follow customs because of public opinion. Later when the state came into existence it accepted many of the customs and enforced and took the role of administration of justice. When the state came into existence, its role was not to legislate and it accepted the already accepted customs. When the state took the role to legislate on different matters, customs got the statutory recognition. The position of customs in various legal system-


Hindu Law: Most of the law in Smritis and Commentaries are customs. They have given great importance to customs and said that customs should be followed. After British started codification of law, their importance was decreased.

Mohammedan Law- It is said by many jurists that customs were not expressively disapproved by the Prophet Mohamad. It was on the basis of customs that Sunnis interpreted many provisions of law, especially the law of divorce and inheritance.

English Law-They have played a major role in moldings English law. They are known as ‘Common Law’ in English law. Common law is a customary law and thus they can neither be against God, nor against the law of reason, and they are always believed to be good and necessary. The common law according to 19th and 20th-century jurists are “Judge-made law”

2. PRECEDENTS AS AN IMPORTANCE SOURCE OF LAW IN MODERN LEGAL PHILOSOPHIES


In the Ancient Legal System:

The importance of the decisions as a source of law was recognized even in very early times. In the past, there have been numerous instances of this. Sir Edward Coke, in the preface of the sixth part of his report, has been written that Moses was the first law reporter. ‘In the case of the daughters of Zelophehad, narrated at the beginning of the twenty- seventh chapter of the book of numbers, the facts are stated with the great clearness and expressly as a precedent which ought to be followed.’

Even in the Mahabharata, it has been stated that ‘The path is the right one which has been followed by virtuous men.’ This may be interpreted as giving a theory of precedent. In ancient legal systems of Babylonia and China, the judicial decisions were considered to be a great authority, and later on, they were embodied in code law.


In the Modern Legal System:

Among the modern legal systems, the Anglo – American law is judge-made law. It is called ‘Common Law’. It developed mainly through judicial decisions. Most of the branches of law, such as torts, have been created exclusively by judges. The Constitutional Law of England, especially the freedom of the citizens, developed through judicial decisions.

Not only in the municipal law but in international law also, the precedents have their importance. The decisions of the International Court of Justice are an important source of International law. These precedents have been recognized by the International Court of Justice by Article 38(2)(d) of the Statute of the International Court of Justice. Further, Article 59 of the same holds that the decisions of the court only have persuasive value for future cases and hence the International Court of Justice is not bound by its own decisions in deciding similar cases in the future. It holds that the decision is only binding the parties to the case.


3. LEGISLATION AS AN IMPORTANCE SOURCE OF LAW IN MODERN LEGAL PHILOSOPHIES


Legislation is important for several reasons, including setting standards and controls to govern the actions of people and groups in the public and private spheres. The legislation is sometimes referred to as statutory law, and it is a law that has been put into place by the actions of a legislature or governing body. Legislation is valuable to setting societal standards and norms at all levels of government, including the local, state, and national level. Legislation at all levels can serve several purposes. It is used to regulate activities, authorize certain actions, supply resources such as funding, implement sanctions and permit or deny certain activities.

For an issue to be considered for passage or denial in legislation, the item must first be proposed by a member of the legislature, such as a member of Congress or a judge. The item is then discussed among other members of the legislature, who decide whether to put the item up for consideration in passing legislation.

Items may be approved for further consideration or denied. If approved, they are often changed or amended in successive legislative sessions before passing.

Legislation is one of three primary functions of government; legislators create legislation, which is then interpreted by individuals in the judicial branch and set into law through the executive branch.


CONCLUSION


Changing role of custom-

It has already been told that customs were of great importance before the state came into existence. Before the state. Customs was the only recognized source of law. When the state came into existence, it played a very less role to legislate laws and it mainly recognized most of the customs. Customs has been recognized more or less in almost all the systems. English common law is the product of a judicial decision of the King’s courts. It is further to be noted that with the passage of time, Customs have decreased in value. The state took the responsibility to legislate on different matters. Thus, legislated laws became the primary source of law, and legislation and precedents now have more importance than customs.


Changing role of precedents-

The legal value of precedents we can clearly infer that these play a very important role in filling up the lacunas in law and the various statues. These also help in the upholding of customs that influence the region thereby making decisions morally acceptable for the people. This thereby increases their faith in the judiciary, which helps in legal development. These moreover being a sort of respect for the earlier views of various renowned jurists, helps in upholding the principle of stare decisis. It is a matter of great convenience it is necessary that a question once decided should be settled and should not be subject to re-argument in every case in which it arises. It will save labour of the judges and the lawyers. This way, it saves lots of time for the judiciary, which is a real challenge in the present-day legal system with so many cases still pending for many years now. Precedents bring certainty in the law. If the courts do not follow precedents and the judges start deciding and determining issues every time afresh without having regard to the previous decisions on the point, the law would become the most uncertain. Precedents bring flexibility to law. Judges in giving their decisions are influenced by social, economic, and many other values of their age. They mold and shape the law according to the changed conditions and thus bring flexibility to law.


Legislations-

The most widely accepted source of law is legislation. The position of customs, the most important source of law in ancient times, has been reduced to a traditional one in modern times. With the growing popularity of the idea of constitutionalism, legislations and precedents occupy the center position amongst all the various sources of law.

Endnotes:

[1] Definition of law- “Merriam Webster” available at https://www.merriam-webster.com/dictionary/law/

[2] Definition of source of law- “Merriam Webster” available at https://www.merriam-webster.com/dictionary/law/

[3]“Custom as a Source of Law”-book by David J. Bederman


References:


BOOKS


1. Austin, John. Esq., The Province Of Jurisprudence Determined, John Murray, London,1832 p.1

2. Dias, R.W.M., Jurisprudence, 5th Ed., Aditya Books, Pvt. Ltd. New Delhi,1994, p.228

3. Fitzgerald, P.J. Salmond on Jurisprudence, 12th Ed. Universal Law Publishing Co. Pvt. Ltd., Delhi, 2001 p.15


JOURNAL


· The American Journal of Jurisprudence, Volume 16, Issue 1, 1971, Pages 332–346, https://doi.org/10.1093/ajj/16.1.332


WEBSITES

1. www.legalserviceindia.com/articles/articles.html

2. https://www.britannica.com/science/jurisprudence

3. https://www.lawyerssafari.com/blog/custom-as-a-source-of-law/

4. https://www.lawctopus.com/academike/precedents-as-a-source-of-law/


Submitted by:

Vaidehi Nyati,

Indore Institute of Law. (Images used for representative purpose only)

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