Sources of Law: Legislation, Codification, Custom, and Judicial Precedent

Meaning and Classifications of Sources of Law

  • Salmond's Classification of Sources of Law:

    • Material Sources:
    • Sub-divided into legal sources and historical sources.
    • Law derives only its matter, and not its validity, from a material source.
    • Examples of material sources include legislation, customs, agreements, and the professional opinions of jurists.
    • Formal Sources:
    • Sources from which a rule of law derives its force and validity.
    • Represented by the will of the State as manifested in statute books or judicial decisions.
    • Additional Legal Sources:
    • Salmond identifies custom and agreement as two additional legal sources alongside legislation and judicial precedent, serving as the respective sources of customary law and conventional/agreed law.

  • Keeton's Classification of Sources of Law:

    • Binding Sources of Law:
    • (i) Legislation
    • (ii) Judicial Precedent
    • (iii) Customary Law
    • Persuasive Sources:
    • (i) Principles of Equity
    • (ii) Professional Opinions
    • (iii) Writings of jurists

Legislation as a Primary Source of Law

  • Etymology and Broad Meaning:

    • The term "legislation" is derived from two Latin words: legis (meaning "law") and latum (meaning "to make, put, or set").
    • Etymologically, legislation signifies the making or setting of law.
    • Used in a broad sense, it encompasses all methods of law-making.

  • Definitions by Eminent Jurists:

    • Salmond: "Legislation is that source of law which consists in the declaration of legal rules by a competent authority."
    • Gray: Defines legislation as "the formal utterances of the legislative organs of the society".
    • Holland: "The making of general orders by our judges is as true legislation as is carried on by the Crown."
    • Austin: "There can be no law without a legislative act."

  • Classification of Legislation:

    • Supreme Legislation:
    • Proceeds directly from the sovereign power in the State.
    • Cannot be repealed, annulled, or controlled by any other legislative authority.
    • Example: The Parliament of Nepal possesses the power of supreme legislation.
    • Subordinate Legislation:
    • Proceeds from any authority other than the sovereign power in the State.
    • Dependent for its continued existence and validity upon a superior legislative authority.
    • Five Kinds of Subordinate Legislation (Salmond):
      • Colonial Legislation: Powers of self-government entrusted to colonies and dependencies of the Crown, remaining subject to the supreme control of the imperial legislature (which retains power to repeal, alter, or supersede colonial enactments).
      • Judicial Legislation: Superior courts are empowered to enact rules for regulating their own judicial procedure. This represents a true form of legislation, although courts cannot create entirely new laws by way of precedents under this specific rule-making power.
      • Municipal Legislation: Municipal authorities are granted authority to enact local bye-laws for limited purposes within their designated territorial jurisdictions.
      • Autonomic Legislation: The State permits private entities or bodies (such as universities and railway companies) to formulate bye-laws that are recognized and enforced by courts of law.
      • Executive / Delegated Legislation: Legislative rule-making authority delegated by Parliament to government departments and executive authorities.

Delegated Legislation

  • Concept and Nature:

    • Technically termed subordinate or delegated legislation (or executive legislation).
    • While the core mandate of the executive is to enforce laws, the power to formulate detailed rules and administrative regulations is delegated to various executive departments of the government.

  • Factors Responsible for the Growth of Delegated Legislation:

    • Shift from Police State to Welfare State:
    • The traditional concept of the State as a mere "police State" has transformed into that of a "welfare State".
    • This expanding role has multiplied governmental functions, requiring massive legislation to achieve socio-economic welfare objectives.
    • Complexity of Modern Civilization and Parliamentary Time Constraints:
    • Bills were historically brief, but complex modern conditions require highly detailed enactments.
    • The surge in the number and volume of parliamentary bills creates severe time shortages; Parliament cannot enact all necessary details even if members work day and night.
    • Consequently, Parliament passes "skeleton bills" setting out general policy framework and leaves the detailed rulemaking to administrative departments.
    • Technicality of Modern Subject Matter:
    • Modern legislation is highly technical; average Members of Parliament lack specialized technical expertise and are bound to fail if they attempt detailed technical drafting.
    • It is safer for Parliament to approve core general principles and delegate administrative details to expert ministries.
    • Urgency and Drafting Precision:
    • Parliamentary schedules do not allow sufficient time for drafting intricate details, leading to defective legislation if rushed.
    • Executive departments can issue precise orders-in-council at leisure, producing coherent, intelligible, and well-drafted regulations.
    • Unforeseen Contingencies and Local Adaptability:
    • Civil servants and statesmen cannot anticipate every future contingency while a bill is undergoing parliamentary passage.
    • Delegated authority allows ministries to issue supplementary rules or orders-in-council to manage emerging contingencies and adapt general statutory rules to specific regional or local conditions.
    • Flexibility and Administrative Practicality:
    • Delegated legislation imparts administrative flexibility, enabling rapid operational adjustments as practical experience is gained under working statutes.

Comparative Analysis: Legislation, Precedents, and Custom

  • Legislation vs. Judicial Precedents:

    • Source: Legislation originates from the formal law-making will of the State; Precedents originate from the ratio decidendi and obiter dicta of judicial judgments.
    • Creation: Legislation is imposed upon courts by the legislature; Precedents are created directly by the judiciary.
    • Declaration: Legislation is the formal, express declaration of statutory rules; Precedent is the judicial creation and application of new rules in the administration of justice.
    • Legal Output: Legislation creates statute law; Precedent creates judge-made law.
    • Timing: Legislation is enacted prior to the occurrence of a case requiring its application; Precedent arises only after a cause of action or legal dispute has arisen.
    • Form and Scope: Legislation is general, comprehensive, and abstract in form; Precedent is specific, definite, and limited primarily to resolving a particular dispute between definite parties.
    • Interpretative Ease: Statutory enactments are significantly easier to interpret than judicial precedents.
    • Temporal Operation: Legislation operates prospectively; Precedent operates retrospectively.

  • Legislation vs. Customary Law:

    • Origin: Legislation develops out of legal theory; Customary law develops out of practical usage.
    • Legal Existence: Legislation exists de jure; Customary law exists de facto.
    • Historical Progression: Customary law represents the oldest form of law; Legislation represents the latest development in law-making.
    • Societal Maturity: Customary law is characteristic of primitive societies and undeveloped legal systems; Legislation marks advanced societies and mature legal systems.
    • Relational Focus: Legislation expresses relations between citizens and the State; Customary law expresses relations directly between individual citizens.
    • Accessibility and Form: Legislation is precise, easily accessible, complete, and written (jus scriptum); Customary law is unwritten (jus non scriptum), rarely completely clear, and difficult to prove.
    • Process: Legislation is the product of a deliberate positive process; Customary law is the outcome of historical necessity, utility, and imitation.
    • Keeton's Perspective on Custom and Legislation:
    • In early historical periods, legislation merely defined or supplemented existing custom.
    • In modern legal systems, this relationship is reversed: statute law is the primary source of law, and custom persists only where legislation has not yet penetrated.
    • Legislation, stripped of divine associations, offers a convenient, definite, accessible, and easily provable mechanism for law-making that reflects the general will through representative institutions.
    • Mode of Repeal:
    • Repealing a statute requires simply enacting a new overriding statute.
    • Repealing a custom through desuetude is a prolonged, highly uncertain, and difficult process.

Codification of Law

  • Definition and Meaning:

    • Oxford Dictionary Definition: "Code is a systematic collection of statutes, body of laws, so arranged as to avoid inconsistency and overlapping."
    • Incompleteness of Dictionary Definition: Omits common law and judicial case law.
    • Comprehensive Concept: Codification is the systematic process and reduction of the entire body of law of a state (including statutes, customs, and judicial precedents) into a coherent code in the form of enacted law. It involves collection, compilation, methodical arrangement, and systematization into precise general principles and rules.

  • Historical Codes:

    • Nepal and India: Historical codes include the Code of Manu and the Codes of Yajnavalkya, Brihaspati, Narada, and Parashar.
    • Ancient Rome: The Code Justinian, which compiled Praetorian edicts, classical juristic writings, and existing laws into a unified body.
    • Other Ancient Codes: The Jewish Code, Chinese Code, and Code of Hammurabi.
    • 19th Century: The Code Napoleon.

  • Merits of Codification:

    • Certainty of Law: Law can be known with certainty, avoiding public confusion (e.g., the legal rules of contract and evidence in India are clearly established in the Indian Contract Act and the Indian Evidence Act).
    • Prevention of Judicial Arbitrariness and Practitioner Quibbles:
    • Sir James Stephen's View: "Well-designed legislation is the only possible remedy against quibbles and chicanery. All the evils which are created from legal practitioners can be averted in this way and in no other. To try to avert them by leaving the law undefined and by entrusting judges with a wide discretion, is to try to put out the fire by pouring oil upon it. Leave a judge with no rule or with one of those leaden rules which can be twisted in any direction, and you at once open to the advocate every sort of topic by which the discretion of the judge can be guided. Shut the lawyer's mouth and you fall into the evils of arbitrary government."
    • Preservation of Custom: Preserves beneficial national customs suited to the populace.
    • National Unity: Establishes legal uniformity and a sense of national cohesion.

  • Demerits of Codification:

    • Rigidity: Impedes the free and natural growth of law, petrifying legal development at the stage of codification.
    • Incoherence: Being the product of multiple drafters, codes may contain incoherent provisions (though competent drafting mitigates this defect).
    • Exploitation by Knaves:
    • Simple, precise legal provisions make legal defects and loopholes obvious.
    • According to Savigny, a code highlights defects in the law, enabling bad actors ("knaves") to take advantage of clear limits before committing crimes (though uncertainty in uncodified law is even more advantageous to knaves).
    • Disturbance of Legal Rights: Replaces existing customary rights and duties with new mandates, potentially disturbing the legal fabric and causing uncertainty.
    • Criticism of Failure: Critics cite perceived failures of the French and German codes to argue against codification (though not all codes fail).
    • Incompleteness: No code is fully complete or self-sufficing; over time, every code becomes overlaid with extensive judicial decisions and scholarly commentary.

Judicial Precedent

  • Definition and Concepts:

    • General English Definition: A previous instance or case taken as an example or rule for subsequent cases, or by which similar future acts/circumstances may be supported or justified.
    • Keeton: A judicial decision to which authority has, in some measure, been attached or furnished as a rule for subsequent practice.
    • Gray: Precedent covers everything said or done that furnishes a rule for subsequent practice.
    • Salmond: In a loose sense, precedent includes merely reported case law that may be cited and followed by courts.
    • Jeremy Bentham: Defines precedents as "Judge made Law."
    • John Austin: Defines precedents as "Judiciary's Law."

  • Nature of Judicial Precedent:

    • Precedent is purely constitutive and in no degree abrogative.
    • A judicial decision can make new law but cannot alter or abrogate existing statutory law.
    • Where a settled rule of law exists, judges must follow it and cannot substitute personal opinions; their function is strictly limited to supplying vacancies, filling gaps in established doctrine, and supplementing underdeveloped rules.

  • Factors Undermining or Destroying the Authority of a Precedent:

    • 1. Abrogated Decisions: A decision ceases to be binding if an inconsistent statute or statutory rule (delegated legislation) is subsequently enacted, or if it is reversed/overruled by a higher court.
    • 2. Reversal on Appeal: A decision reversed on appeal loses authority (e.g., the 24th Amendment of the Indian Constitution was passed to nullify the Supreme Court's ruling in the Golaknath case).
    • 3. Affirmation and Reversal on a Different Ground: A decision affirmed or reversed by an appellate court on an entirely different legal point.
    • 4. Ignorance of Statute (Per Incuriam):
    • Rendered in ignorance of a statute or a rule possessing statutory force (such as delegated legislation).
    • Applies also where the court knew of the statute but failed to appreciate its application to the case.
    • Such a mistake vitiates the decision, allowing even subordinate courts to refuse to follow it.
    • 5. Inconsistency with Earlier Decision of Higher Court: A decision rendered while overlooking an inconsistent ruling of a superior court is non-binding (e.g., High Courts cannot ignore rulings of the Supreme Court of India).
    • 6. Inconsistency with Earlier Decision of Same Rank: When two decisions of courts of equal rank conflict, subsequent courts are free to choose between them.
    • 7. Precedent Sub Silentio or Not Fully Argued:
    • Occurs when a legal point involved in a case is not noticed or argued by counsel.
    • A decision passed without argument on a particular point is not an authority on that unargued point (sub silentio).
    • Note: Binding force does not depend on whether a specific argument was considered, provided the point with reference to which the argument was advanced was actually decided by the Supreme Court.

  • Classifications of Judicial Precedents:

    • Authoritative vs. Persuasive Precedents:
    • Authoritative Precedents: Decisions that judges must follow regardless of whether they approve of them; they constitute direct legal sources of law.
    • Persuasive Precedents: Decisions that judges are not obligated to follow but will consider and accord weight based on merit; they serve as historical sources of law and establish legal rules indirectly by inspiring later authoritative precedents.
    • Absolute vs. Conditional Precedents (Sub-division of Authoritative Precedents):
    • Absolutely Authoritative Precedents: Entitled to implicit obedience; judges must follow them unconditionally even if they disapprove of the rule.
    • Conditionally Authoritative Precedents: Possess binding authority ordinarily, but courts are permitted to disregard or set them aside under specific recognized legal exceptions.