What are the Sources of Law- Nature and An Analysis

What are the Sources of Law – Law is a set of rules which are established by the government or society. the concept of law is diverse. In this modern era for the smooth governing of society, there must be an effective legal system that can rule society.

What are the Sources of Law

In this article, we are giving information and a detailed explanation about law and which are the main sources of law. as we know the sources of law mean the origin of law. Many legal experts have different opinions about the sources of law.

According to Austin law is the command of sovereign means he considered sovereign as the source of law. the believers of natural law considered that human reasons are the source of law.

The followers of the religion believe that the religious scripts as sources of law and for scholars, judicial precedent is the source of law.

What are the Sources of Law

Sources of Law

1) Judicial precedents

2) Legislation

3) Custom

Judicial Precedents

It is one of the most important sources of law. Judicial precedents mean decided judgment of the superior court and the inferior courts are bound to follow that decided judgment. judicial Precedents are based on the doctrine ‘stare decision,.

Article 141 of the constitution of India deals with the concept of stare decisis. India supreme court of India is the superior court, All courts in India are bound to follow the decided judgment of the supreme court.

The constitution of India established this feature of the Indian Judicial system. In this modern era, the judiciary plays an important role in any form of government.

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In this case, when there is a difference in the decision of the benches of the same court, the decision of the larger bench is accepted.

Sources of Law

Judicial decision

The judicial decision can be divided into two parts

  • Ratio decidendi – The term “Ratio decidend” means reasons for the decision. it becomes obligatory for the lower court to follow the decision of the higher court if the similar question of law arose.
  • Obiter dicta – The term “Obiter dicta” is parts of the judicial decision which is not binding on lower courts it is merely general observations of the judge.

Legislation

The word ‘legislation’ is derived from the Latin word “legis” means law and “latus” means “to make”. In many countries legislation is the primary source of law. Democratic countries like India, USA the legislation is considered as a primary source of law.

The Parliament of India, the legislature is formed in the form of creation of new laws, repeal and amendment of old laws.

1)Supreme Legislation –

When laws are enacted directly by the sovereign After that, it is considered as supreme legislation.

The sovereign jurisdiction of the State can not be revoked or obstructed by any other authorized entity of the State.

2)Subordinate Legislation-

Subordinate legislation is legislation made by any authority subordinate to the supreme authority. validity, Existence, and Continuance of Subordinate legislation depend on the will of Sovereign Authority.

Types of Subordinate Legislation

Executive Legislation

Executive Legislation means laws which are made by the executive. When legislative powers are vested to the executive by the appropriate authority, it is called as executive legislation.

Colonial Legislation

Colonial legislation is a law made by a country for its colonies.

For instance, India is governed by the British Parliament as a colony and the British parliament passed laws for India.

The British Parliament was making laws for India.

Judicial Legislation

Judicial Legislation means laws made by the judiciary in their own capacity for the administration.No other organs of government can interfere in the judicial system while making laws

Local Legislation

In India 73rd and 74th amendments of the constitution recognized the local bodies like panchayat, a municipal corporation. so the municipal corporation can make rules and bye-laws in their jurisdiction. Rules and bye-laws made by them is called as local legislation

Autonomous legislation

In Autonomous legislation, supreme authority gives the power of enacting a law to a group of people and recognized them under the law.

For instance, the Universities and Municipal corporations are autonomous legislation.

Custom

In Ancient times custom is one of the most important sources of law. Custom means long-established practice or unwritten rules and mandatory. Not all customs can be accepted as sources of law and all customs are not enforced by law only the valid customs which are followed by the general public for a very long time without any interruption and it must be moral.

For instance, According to section 7 of the Hindu marriage act, 1955 the customary practice of Saptapadi is recognized. Saptapadi is an example of customs as a source of law.

Types of Custom

1) Customs without sanction:

customs without sanction means those customs which are not binding.

2) Customs with sanction:

customs with sanction means those customs which are obligatory.

1) General custom – General custom means custom which is enforceable to throughout the territory of the state.

2) Local custom – local custom means custom which is applicable within the particular territory of the state.

In Conclusion

To understand the law it is important to know about the sources of law. In ancient times, the custom was the most important source of law. Jurists have different views about the origin and sources of law as the jurist like Austin opposed custom as a source of law as he believes that law is the will of the sovereign. In India, there are three organs of government namely Legislature, Executive, and Judiciary. The legislature is the prime law-making body in India.

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