Sources of Law

Purpose: Regulate human activities, define permissible and impermissible actions.
Indian Constitution, Article 13(3): Defines 'law' broadly, including ordinances, orders, bylaws, rules, regulations, customs, and usages within India.
'Law in force': Laws passed or made by legislature or competent authority in India before the constitution's commencement, not previously repealed.
Significance: Law evolves with society; abstract justice is replaced by social justice; law aims to provide economic justice.
Jurisprudence: Knowledge of law (Juris = law, Prudence = knowledge).
Types of Law
Substantive Law: Defines rights and duties.
Procedural Law: Defines procedures.
Jurisprudence Schools
Analytical Jurisprudence: Focuses on pure science, universal truths, and objectivity in law.
Sociological Jurisprudence: Addresses limitations of pure science in solving social problems.
Teleological School: Views law as a product of human reason and national purpose.
- Civil Jurisprudence
- Historical Jurisprudence
- Systematic Jurisprudence
- Legal History
- Science of legislation
Prof. Julius Stone: Law is lawyers’ explanations of ideals and techniques from present knowledge.
Prof. G.W. Paton: Jurisprudence aims to relate law and its concepts to society without finding universal principles.
Tasks of Jurisprudence
Study nature of law and legal institutions and their relation to society.
Normative legal theory.
Positive legal theory.
Laws vs. legal theory.
Jeremy Bentham: Law is a collection of signs declaring volition conceived or adopted by a sovereign.
'Law properly so called': General command from political superior to inferior.
'Law un-properly so called': Other rules not fitting this definition.
Command: Essential feature of law as an expression of wish, with sanction.
Sovereign Authority: Given by a sovereign authority.
Criticism of Bentham: Fails to account for laws granting rights/benefits, judge-made laws, and international laws; requires a sovereign. Does not account for customs as source of law or judge made law.
John William Salmond: Law professor and judge; distinguished abstract (civil law) from concrete/specific law; emphasized compulsion to maintain justice.
Administration of justice by the state is possible Justice is the end and law is medium to realize it.
Criticism to Salmond: Purpose of law is not only pursuit of justice. Justice is a universal concept.
Roscoe Pound: Law is social engineering; aims to maximize satisfaction with minimal friction and waste. Areas of Interest
- Personality
- Domestic Relations
- Substance
- Public Interest
- State as juristic person
- State as guardian of social interest
- General Morals
- General Progress
- General Security
- Individual life
- Conservation of social resources
- Security of social institutions
Hart: Analysis of Legal Concepts
- Worth pursuing
- Distinct from inquiries
- Distinct from critical evaluation
Law is a preliminary norm stipulating action (sanction); separates law as it is from law as it ought to be.
Hans Kelson: Preliminary norm which stipulates action (sanction).
- Normative Statements
- Descriptive Statement
- Natural Science
- Legal Science
- Ground norm
- Superior norm
- Subordinate norm
Criticism of Kelson: Difficult to trace 'grund norm' in every legal system; lacks timeframe for effectiveness/validity; struggles with international laws.
Schools of Law
Natural School of Law: Ancient, Medieval Renaissance, Modern.
- Ancient Theory:
  - Heroclites- Greek philosopher, Destiny, Reason, Order
  - Socrates- distinguish between good or bad deeds.
  - Plato- Wisdom, Reason
  - Aristotle- Reason unaffected by desires
- Medieval Theory: Theological idea with connection to GOD.
- Renaissance Theory: Rationalism with reason as main foundation.
- Modern theory: Rejects older theories & conceptions, Reaction against positive & historical approach
Analytical School of Law: Law is command of sovereign (John Austin, Hans Kelsen).
Historical School of Law: Law evolves from historical and evaluation forces.
- Von Savigny: Law is unconscious organic growth, varies with people/age; customs superior to legislature.
Philosophical/Ethical School of Law: Law should reconcile conflicting egos in society (Hegel), (Hugo Gratius).
Sociological School of Law: Law as social phenomenon, Dugsist, Roscoe Pound.
Realistic School of Law: Law = statement of circumstances where public force will be applied.
- Law pre-supposes a State
- State authorizes to make rules which are called law
- There are sanctions behind any rules
- Rules are made to serve some purpose.
  Sources of Indian Law
Primary Sources: Customary laws, Judicial Decisions, Statutes/Legislations, Personal Laws
Customary Law:
Traditional activities, ways of behaving with sanction (Legal) or without sanction (Conventional).
Legal Customs: binding rule of law as part of law of land
- General
- Geographical
- Personal
- Local
Conventional Customs: agreement between parties
Requisites of Valid Custom
Immemorial (Antiquity), Certainty, Reasonableness, Compulsory Observance, Conformity With Law & Public Morality, Unanimity Of Opinion, Peaceable Enjoyment.
Judicial Decisions or Precedents
Guidance or authority of past decisions with new principles. Decisions of High Courts are binding on subordinate courts. Decisions of Supreme Court are binding on all courts. Kind of Precedents
- Declaratory & Original
- Persuasive Precedents
- Absolute authoritative precedents
- Conditionally Authoritative
  - Doctrine of Stare Decisis: Courts obligated to follow historical cases, "to be a side by things decided".
    - The rule making power of executive is hedged with limitations
    - Both houses of parliament , President notifies in official gazette
- Obiter Dicta: Judicial entrances beyond case requirements with persuasive precedent only. Judges are not bound to follow but can take their advantage
  Statutes or Legislation
Declaration of legal rules by empowered authority (Jus scriptum = written law, Jus non scriptum = unwritten law).
Personal Laws: Governs personal matters
Secondary Sources:
- Justice Equity & good conscience, Sources of English law
  - Common Law
  - Law of Merchant
  - Statute Law
  - Principle of equity
    Mercantile or Commercial Law:
Sources of Indian Mercantile Law
English mercantile law
Judicial decisions
Acts enacted by statute or legislature
Customs & Trade usages