Sources of Law: Custom, Precedent, and Legislation

Comprehensive vocabulary flashcards covering the primary sources of law—Custom, Judicial Precedent, and Legislation (including Delegated Legislation and its constitutional limits)—as presented in the jurisprudence lecture notes.

Custom

A habitual course of conduct observed uniformly and voluntarily by the people from time immemorial, created through unconscious adoption whenever a recurrent problem arises.

Custom Without Sanction

Non-obligatory customs that are observed solely due to the influence of public opinion, characterized by John Austin as 'positive morality.'

Custom Having Sanction

Customs enforced by the State and backed by sanction, sub-classified into legal customs and conventional customs.

Legal Custom

A custom whose legal authority is absolute and unconditional, operating as a binding rule of law recognized and enforced by the courts.

Local Custom

A custom that prevails within a defined locality (geographical local custom) or is carried by certain sects or families wherever they go (personal local custom).

General Custom

A custom that prevails throughout the entirety of a country and forms one of the sources of the law of the land.

Conventional Custom (Usage)

An established practice whose binding authority is conditional on its express or implied acceptance and incorporation into an agreement between contracting parties.

Immemorial Antiquity

The requirement that a valid custom must have been practiced so long that 'the memory of man runneth not to the contrary,' having an ancient origin rather than a recent one.

Historical Theory of Custom

The legal theory developed by Savigny and Puchta asserting that custom is per se law springing from the common consciousness or general will of the people, independent of sovereign recognition.

Precedent

A statement of law enunciated by a superior court in the course of rendering a judgment that serves as an authoritative source of law for that court and inferior courts.

Authoritative Precedents

Judicial precedents that possess binding character and must compulsorily be followed by lower courts within the judicial hierarchy.

Absolute Precedents

Authoritative decisions that judges are strictly and compulsorily obliged to follow without any discretion to depart from them.

Conditional Precedents

Precedents that are normally binding but not strictly compulsory, permitting judges under certain conditions to disregard or choose not to apply them.

Persuasive Precedents

Precedents that do not have direct legal force in themselves but serve as non-binding guidance or historical reference for judges.

Original Precedents

Judicial decisions that establish or create new legal principles when no prior authority or settled rule of law exists.

Declaratory Precedents

Precedents that merely declare, verify, or apply existing legal principles rather than establishing new rules of law.

Doctrine of Stare Decisis

The principle based on the maxim 'stare decisis et non quieta movere' ('to stand by decisions and not disturb the undisturbed'), requiring courts to follow established previous judicial rulings.

Jurisprudence Constante

A doctrine recognized in civil law systems requiring independent judges to interpret and apply laws predictably and non-chaotically across cases without being bound by single isolated precedents.

Ratio Decidendi

The reason for the decision, consisting of the necessary underlying legal principle formulated by a court to resolve the specific dispute before it, creating the binding element of a precedent.

Obiter Dictum

An observation or statement of law made by a court that is unnecessary for deciding the actual dispute, possessing persuasive influence rather than binding precedent.

Legislation

The source of law consisting of the formal declaration of legal rules by a competent legislative authority in statutory form, derived from the Latin 'legis' (law) and 'latum' (to make or set).

Supreme Legislation

Statutes passed by a sovereign law-making body that cannot be revoked, altered, regulated, or overturned by any other legislative authority.

Subordinate Legislation

Legislation made by an authority other than the supreme sovereign legislature that depends entirely on a higher authority for its validity and existence.

Delegated Legislation

The exercise of subsidiary rule-making power by the executive or subordinate bodies through authority conferred by the primary legislature under an enabling or parent act.

Doctrine of Delegation

The constitutional principle restricting the extent to which a legislature may transfer its legislative power, requiring that it establish the essential policies and principles for the delegate to follow.

Conditional Legislation

A legislative technique where the legislature enacts a complete statute but delegates discretion to the executive to determine when or under what prescribed conditions the act will take effect.

Sub-delegation

The transfer of delegated legislative or rule-making power by the primary delegate to an inferior subordinate body.

Delegatus Non Potest Delegare

A legal maxim meaning 'no delegated powers can be further delegated,' restricting a designated delegate from transferring its conferred authority unless expressly or impliedly permitted by statute.

Ultra Vires

A legal term meaning 'beyond legal power,' referring to subordinate rules or acts that exceed, contradict, or defeat the scope and purpose of the parent enabling act.

Essential Legislative Functions

The fundamental policy-making duties of framing legislative intent and legal principles, which cannot constitutionally be abdicated or transferred to an administrative body.