Sources of Law: Custom, Precedent, and Legislation notes — Unit 4

The term 'Source of Law' literally means the origin from which rules of human conduct come into existence and derive their legal force or validity. Different schools of jurisprudence view the 'source' of law differently. Austin (Analytical) says the sovereign is the source, while Savigny (Historical) says the Volksgeist is the source.

⇒1.1 Salmond's Classification of Sources

Sir John Salmond classified sources of law into two primary categories:

• Formal Sources: Those sources from which a rule of law derives its absolute force and validity. It is the will of the State as manifested in statutes or decisions of courts. A rule is law because it comes from a formal source.
• Material Sources: Those sources from which the law derives the matter (content) of the rule, but not the legal validity itself. Material sources provide the raw material that the formal source then converts into law.

⇒1.2 Subdivision of Material Sources

Salmond further subdivided Material Sources into:

In modern jurisprudence and university examinations, the focus is entirely on the three Legal Sources: Custom, Precedent, and Legislation.

Custom is the oldest and most primitive source of law. Before the invention of writing, parliaments, or formal courts, human societies regulated their conduct through habits. When a habit is followed by a society for a long time, and the society develops a conviction that following it is obligatory, it crystallizes into a custom.

⇒2.1 When does a custom become 'Law'?

There is a massive jurisprudential debate on this:

• The Analytical View (Austin): A custom is not a law until it is recognized and enforced by a sovereign (the courts). Before a judge enforces it, it is merely a 'positive morality'.
• The Historical View (Savigny): Custom is the true law, as it reflects the Volksgeist. It is binding independently, long before any court recognizes it. The court merely declares what is already the law.

⇒2.2 Classification of Customs

• Legal Custom: A custom whose authority is absolute. It is binding irrespective of the agreement of the parties. It is further divided into:
• - General Custom: Prevails throughout the entire territory of the state (e.g., the general common law of England).
• - Local Custom: Applies only to a specific locality, district, or sect (e.g., specific inheritance customs of a particular tribe).
• Conventional Custom (Usage): A practice whose authority is conditional on its acceptance in an agreement between parties. (e.g., specific trade usages in the diamond market). If parties explicitly contract out of it, the usage does not apply.

Not every habit of the people becomes legally binding. For a court to enforce a local custom, overriding the general law, the custom must pass a stringent test of validity.

A precedent is a judicial decision that contains in itself a principle of law. The doctrine of precedent is also known as Stare Decisis (to stand by things decided). It means that when a court has laid down a principle of law applicable to a certain set of facts, it will follow that principle in future cases involving similar facts.

⇒4.1 The Declaratory Theory vs. Judges Making Law

• The Declaratory Theory (Sir Matthew Hale / Blackstone): Traditionally, it was believed that judges never make law. The law has always existed (in customs or common sense). The judge merely 'finds' and 'declares' what the law is. They are the oracle of the law.
• Modern View (Bentham / Salmond): The declaratory theory is a fiction. Judges absolutely make new law when they face novel situations (cases of first impression) where no statute or custom exists.

⇒4.2 Types of Precedents

• Authoritative (Binding) Precedent: Judges are bound to follow it whether they approve of it or not. Example: Under Article 141 of the Indian Constitution, the law declared by the Supreme Court is binding on all courts within the territory of India.
• Persuasive Precedent: Judges are not obliged to follow it, but will take it into serious consideration because of the high authority of the judge who delivered it. Example: A judgment of the Delhi High Court cited before the Bombay High Court.
• Original Precedent: Creates and applies a completely new rule of law.
• Declaratory Precedent: Merely applies an already existing rule of law.

When a judge writes a 100-page judgment, not every single sentence in those 100 pages becomes a binding law for the whole country. Jurists divide a judgment into two distinct parts:

A binding precedent is powerful, but it is not immortal. Certain circumstances can destroy the binding force of a judicial precedent:

• Abrogated by Legislature: Parliament can simply pass a new statute that explicitly reverses or overrides the court's decision.
• Overruled by a Higher Court: A larger bench of the Supreme Court can overrule a decision made by a smaller bench.
• Ignorance of Statute (Per Incuriam): If a judgment was given in ignorance of a binding statute or a binding precedent of a higher court, it is said to be given per incuriam (through lack of care) and loses its binding force.
• Inconsistency with Higher Authority: If a High Court decision conflicts with a Supreme Court decision, the High Court decision loses validity.
• Lapse of Time / Change in Circumstances: If a precedent is completely outdated due to massive technological or social changes, a court may refuse to follow it.

Legislation (from the Latin words legis meaning 'law', and latum meaning 'making') is the formal declaration of legal rules by the competent authority of a state. In the modern world, it is the most powerful, prolific, and dominant source of law, overriding both custom and precedent.

⇒7.1 Supreme and Subordinate Legislation

Salmond classified legislation into two types based on the authority making it:

⇒7.2 Types of Subordinate Legislation

• Colonial Legislation: Laws made by the legislature of a colony or dependent territory, subject to the control of the imperial legislature.
• Judicial Legislation: Rules made by superior courts (like the Supreme Court) to regulate their own procedures and practices.
• Municipal Legislation: Bye-laws made by local government bodies (Municipal Corporations, Panchayats) regarding water, taxation, zoning, etc.
• Autonomous Legislation: Regulations made by private/autonomous bodies (universities, registered companies) to govern their own members.
• Executive / Delegated Legislation: (Highly important in modern times). Rules made by the executive branch (ministers, civil servants) under the authority delegated to them by Parliament.

In the 20th century, the role of the State shifted from mere protection (police state) to active welfare. Parliament had to pass thousands of complex laws regarding public health, labor, aviation, and technology.

⇒8.1 Why is Delegated Legislation Necessary?

• Lack of Time: Parliament only sits for a few months a year. It cannot debate every minor administrative detail of a complex law.
• Lack of Technical Expertise: Members of Parliament are politicians, not scientists. They pass the broad 'Aviation Act', but delegate power to aviation experts in the Ministry to draft the complex 'Flight Safety Rules'.
• Flexibility and Speed: If an emergency arises, executive rules can be amended overnight. Amending a statute in Parliament takes months.
• Local Variations: The executive can tweak rules to suit different geographical regions without passing a new nationwide act.

⇒8.2 Dangers and Controls

The danger of delegated legislation is that unelected bureaucrats make the law, which is anti-democratic. To prevent abuse, two main controls exist:

• Parliamentary Control: The rules drafted by the executive must usually be laid before Parliament for approval.
• Judicial Control (Ultra Vires): If the executive makes rules that go beyond the power granted by the parent statute, or if they violate the Constitution, the courts will strike them down under the doctrine of Ultra Vires (beyond powers).

Jurists have long debated whether judge-made law (precedent) or parliament-made law (legislation) is superior.

Conclusion: Salmond beautifully summarizes this: 'Case law is gold in the mine—a few grains of the precious metal to the tons of useless matter—while statute law is coin of the realm ready for immediate use.'

⇒Summary of Key Takeaways

• Classification: Salmond divides sources into Formal and Material (Historical vs Legal).
• Custom: Must be ancient, continuous, reasonable, moral, and peaceable to be valid.
• Precedent: Governed by Stare Decisis. Only the Ratio Decidendi (reason) is binding; Obiter Dicta (passing remarks) is not.
• Legislation: The supreme source of modern law. Subordinate legislation (especially Delegated Legislation) is necessary for modern welfare states but must be controlled by courts (Ultra Vires).

⇒University Exam Tips for this Unit

• Custom Question: If asked to explain the essentials of a valid custom, use headings for Antiquity, Continuity, Reasonableness, etc., and give the example of Sati to explain the 'Morality' requirement.
• Precedent Question (Ratio vs Obiter): This is a guaranteed short note question. Always define both terms clearly. State that extracting the Ratio is necessary, while Obiter is persuasive.
• Delegated Legislation: If asked why it is growing, list the 4 reasons (time, expertise, flexibility, emergency) clearly. It shows a deep understanding of modern administrative law.