Where does law come from?

To have a clear and complete understanding of law, it is essential to understand the sources of
law. Sources of law mean the sources from where law or the binding rules of human conduct
originate. In other words, law is derived from sources. Jurists have different views on the origin
and sources of law, as they have regarding the definition of law. As the term ‘law’ has several
meanings, legal experts approach the sources of law from various angles. For instance, Austin
considers Sovereign as the source of law while Savigny and Henry Maine consider custom as
the most important source of law. Natural law school considers nature and human reason as the
source of law, while theologians consider the religious scriptures as sources of law. Although
there are various claims and counter claims regarding the sources of law, it is true that in almost
all societies, law has been derived from similar sources

The three major sources of law that can be identified in any modern society are as follows:
Custom
Judicial precedent
Legislation

Custom as a Source of Law

A custom, to be valid, must be observed continuously for a very long time without any
interruption. Further, a practice must be supported not only for a very long time, but it must also
be supported by the opinion of the general public and morality. However, every custom need not
become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which are within
the prohibited degrees of relationship. However, the Act still permits marriages within the
prohibited degree of relationship if there is a proven custom within a certain community.

Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character.

In ancient societies, custom was considered as one of the most important sources of law; in fact
it was considered as the real source of law. With the passage of time and the advent of modern
civilization, the importance of custom as a source of law diminished and other sources such as
judicial precedents and legislation gained importance.

Can Custom be law?

There is no doubt about the fact that custom is an important source of law. Broadly, there are
two views which prevail in this regard on whether custom is law. Jurists such as Austin opposed
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny
consider custom as the main source of law. According to him the real source of law is the will of
the people and not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.

Saptapadi is an example of customs as a source of law. It is the most important rite of a Hindu
marriage ceremony. The word, Saptapadi means ‘Seven steps’. After tying the Mangalsutra,the
newly-wed couple take seven steps around the holy fire, which is called Saptapadi. The
customary practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act,
1955.

Kinds of Customs

Customs without sanction: These kinds of customs are non-obligatory in nature and are
followed because of public opinion.

Customs with sanction: These customs are binding in nature and are enforced by the State.
These customs may further be divided into the following categories:

Legal Custom : Legal custom is a custom whose authority is absolute; it possesses the force of
law. It is recognized and enforced by the courts. Legal custom may be further classified into the
following two types
- General Customs : These types of customs prevail throughout the territory of the State.
- Local Customs : Local customs are applicable to a part of the State, or a particular
region of the country
Conventional Customs : Conventional customs are binding on the parties to an agreement.
When two or more persons enter into an agreement related to a trade, it is presumed in law that
they make the contract in accordance with established convention or usage of that trade. For
instance, an agreement between a landlord and tenant regarding the payment of rent will be
governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and
enforced by the courts. The jurists and courts have laid down some essential tests for customs
to be recognized as valid sources of law. These tests are summarized as follows:

Antiquity : In order to be legally valid, customs should have been in existence for a longtime,
even beyond human memory. In England, the year 1189 i.e. the reign of Richard I King of
England has been fixed for the determination of validity of customs. However, in India there is
no such time limit for deciding the antiquity of the customs. The only condition is that those
should have been in practice since time immemorial.

Continuous : A custom to be valid should have been in continuous practice. It must have been
enjoyed without any kind of interruption. Long intervals and disrupted practice of a custom raise
doubts about the validity of the same.

Exercised as a matter of right : Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practised secretly. A custom must be proved to be a matter
of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid custom.
Reasonableness : A custom must conform to the norms of justice and public utility. A custom, to
be valid, should be based on rationality and reason. If a custom is likely to cause more
inconvenience and mischief than convenience, such a custom will not be valid.

Morality : A custom which is immoral or opposed to public policy cannot be a valid custom.
Courts have declared many customs as invalid as they were practised for immoral purpose or
were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. EsuNaekin,
((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for immoral purposes is illegal.

Status of Custom with regard to Legislation : In any modern State, when a new legislation is
enacted, it is generally preferred to the custom. Therefore, it is imperative that a custom must
not be opposed or contrary to legislation. Many customs have been abrogated by laws enacted
by the legislative bodies in India. For instance, the customary practice of child marriage has
been declared as an offence. Similarly, adoption laws have been changed by legislation in India.

Importance of custom as a Source of Law in India

Custom was the most important source of law in ancient India. Even the British initially adopted
the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in
particular, the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim (AIR 1922
PC59) observed and underlined the importance of custom in moulding the law. At the same
time, it is important to note that customs were not uniform or universal throughout the country.
Some regions of the country had their own customs and usages.

These variances in customs were also considered a hindrance in the integration of various
communities of the country. During our freedom struggle, there were parallel movements for
social reform in the country. Social reformers raised many issues related to women and children
such as widow re-marriage and child marriage. After independence and with the enactment of
the Constitution, the Indian Parliament took many steps and abrogated many old customary
practices with some progressive legislation. Hindu personal laws were codified and the Hindu
Marriage Act, 1955 and the Hindu Adoption Act, 1955, were adopted. The Constitution of India
provided a positive environment for these social changes. After independence, the importance
of custom has definitely diminished as a source of law and judicial precedent, and legislation
has gained a more significant place. A large part of Indian law, especially personal laws,
however, are still governed by customs.

Judicial Precedent as a Source of Law

In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This
binding character of the previously decided cases is important, considering the hierarchy of the
courts established by the legal systems of a particular country. In India, this hierarchy has been
established by the Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is
it as old as custom. It is an important feature of the English legal system as well as of other
common law countries which follow the English legal system.

In most of the developed legal systems, judiciary is considered to be an important organ of the
State. In modern societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges decide those
matters on the basis of the legislations and prevailing custom but while doing so, they also play
a creative role by interpreting the law. By this exercise, they lay down new principles and rules
which are generally binding on lower courts within a legal system

. Given this background, it is important to understand the extent to which the courts are guided
by precedents. It is equally important to understand what really constitutes the judicial decision
in a case and which part of the decision is actually binding on the lower courts.

DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY

Pre-Independence:

According to Section 212 of the Government of India Act, 1919, the law laid down by Federal
Court and any judgment of the Privy Council was binding on all courts of British India.
Hence,Privy Council was supreme judicial authority - (AIR 1925 PC 272).

Post-Independence: Supreme Court (SC) became the supreme judicial authority and a
streamlined system of courts was established.

Supreme Court:
Binding on all courts in India
Not bound by its own decisions, or decisions of Privy Council or Federal Court - (AIR 1991 SC
2176) 2)

High Courts:
Binding on all courts within its own jurisdiction
Only persuasive value for courts outside its own jurisdiction • In case of conflict
with decision of same court and bench of equal strength, referred to a higher bench

Lower Courts:
Bound to follow decisions of higher courts in its own state, in preference to High Courts of other
states

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision): ‘Ratio decidendi’ refers to the binding part of a
judgement. ‘Ratio decidendi’ literally means reasons for the decision. It is considered as the
general principle which is deduced by the courts from the facts of a particular case. It becomes
generally binding on the lower courts in future cases involving similar questions of law.

Obiter dicta (Said by the way): An ‘obiter dictum’ refers to parts of judicial decisions which are
general observations of the judge and do not have any binding authority. However, obiter of a
higher judiciary is given due consideration by lower courts and has persuasive value.

Having considered the various aspects of the precedent i.e. ratio and obiter, it is clear that the
system of precedent is based on the hierarchy of courts. Therefore, it becomes important to
understand the hierarchy of courts in order to understand precedent.

Every legal system has its own distinct features. Therefore, the doctrine of precedent is applied
differently in different countries. In India, the doctrine of precedent is based on the concept of
hierarchy of courts.

The modern system of precedent developed in India during British rule. It was the British who
introduced the system of courts in India.

However, post-independence, India adopted its own Constitution, which provided for a
hierarchical judicial system that is pyramidal in nature. Under the Constitution of India, a single
monolithic unified command of the judiciary has been established. The Supreme Court of
India,which was established by the Constitution of India, came into existence on 28 January,
1950 under Article 124(1) of the Constitution of India.

The Supreme Court replaced the Federal Court established by the Government of India
Act,1935. The Supreme Court of India is the Apex Court in the hierarchy of courts, followed by
the High Courts at the State level. Below them are the District Courts and Sessions Court. The
structure of the judiciary in all states is almost similar, with little variation in nomenclature of
designations.

HIERARCHY OF CRIMINAL JUSTICE SYSTEM HIERARCHY OF CIVIL JUDICIAL SYSTEM •

In a nutshell, the decisions given by the Supreme Court are binding on all the courts throughout
the territory of India. While the decision given by the High Courts are binding on the subordinate
courts within the jurisdiction of that particular High Court, the decisions of the High Courts are
not binding beyond their respective jurisdictions.

The decisions of the High Courts, however, have persuasive value for the other High Courts and
the Subordinate Courts beyond their jurisdiction. It is important to note that the Supreme Court
is not bound by its previous decisions; with an exception that a smaller bench is bound by the
decision of the larger bench and that of the co-equal bench.
Do Judges make Law?
Discussion in the foregoing paragraphs regarding the hierarchy of courts and the binding
authority of decisions of the Supreme Courts in the lower courts raises another important
question regarding the role of judges in law-making. This part of the topic deals with the
fundamental question. Do judges make law?

The Constitution of India confers power on the legislature to make law, while the judiciary has
the power to examine the constitutionality of the laws enacted by the legislature. The courts also
adjudicate upon the rights and duties of citizens, and further interpret the provisions of the
Constitution and other statutes.

Through these processes, the courts create new rights for the citizens. By this exercise, the
judiciary makes additions to the existing laws of the country. It is argued that while doing
this,judges actually make law.

There are two views regarding this issue. One set of jurists say that judges do not make the law
but that they simply declare the existing law. Another set of jurists say that judges do make the
law. Jurists like Edward Coke and Mathew Hale are of the opinion that judges do not make law.
According to them judicial decisions are not sources of law but, they are simply the proof of
what the law is. Judges are not law-givers, but they discover law.

At the same time jurists like Dicey, Gray, Salmond are of the opinion that judges do make law.
They hold the view that judges, while interpreting the law enacted by the legislative bodies,
contribute to the existing body of law. A large part of the English law is judge-made law.

The above arguments seem to be complementary. It can be inferred that judges do not make
the law in the same manner in which, legislative bodies do. Judges work on a given legal
material passed as law by the legislature. While declaring the law, judges interpret the
‘legislation’ in question and play a creative role. By this creative role, judges have contributed
significantly to the development of law.

In the Indian context, former judges of the Supreme Court of India like Justice P.N. Bhagwati
and Justice Krishna Iyer enlarged the meaning and scope of various provisions of the
Constitution through their creative interpretation of the legal text. The Supreme Court, too in its
role as an activist, has created many new rights such as the: right to privacy, right to live in a
pollution free environment, right to livelihood etc.

The Right to Education has received considerable impetus during the last decade as a result of
the concerted effort of many groups and agencies towards ensuring that all children in India
receive at least minimum education, irrespective of their socio-economic status and their ability
to pay for education, in a situation of continuous impoverishment and erosion of basic needs. In
a way, the right to education is the culmination of efforts made possible by judicial
interpretations and a constitutional amendment.
These new rights were created only by way of interpreting Article 21 (Right to Life) of the
Constitution of India. These rights developed by the courts are not in any sense lesser than the
laws enacted by the legislative bodies. Therefore, it can be concluded that the judicial
precedents are important sources of law in modern society and judges do play a significant role
in law-making

Legislation as a Source of Law In modern times, legislation is considered as the most important
source of law. The term ‘legislation’ is derived from the Latin word legis which means ‘law’ and
latum which means ‘to make’ or ‘set’. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured from the fact that it is backed
by the authority of the sovereign, and it is directly enacted and recognised by the State. The
expression ‘legislation’ has been used in various ways. It includes every method of law-making.
In the strict sense, it means laws enacted by the sovereign or any other person or institution
authorised by him.

Kinds of Legislation
Supreme Legislation (Laws passed by Indian Parliament)
Subordinate Legislation

Types of Subordinate Legislation

Autonomous Law
Judicial Rules
Local Laws (Eg. Rule by Panchayati Raj Institution)
Colonial Law (Eg. Government of India Act, 1935)
Laws made by the Executive

Supreme Legislation: When the laws are directly enacted by the sovereign, it is considered as
supreme legislation. One of the features of Supreme legislation is that, no other authority except
the sovereign itself can control or check it. The laws enacted by the British Parliament fall in this
category, as the British Parliament is considered as sovereign.
The law enacted by the Indian Parliament also falls in the same category. However in India,
powers of the Parliament are regulated and controlled by the Constitution, though the laws
enacted by it are not under the control of any other legislative body.

Subordinate Legislation : Subordinate legislation is a legislation which is made by any authority

which is subordinate to the supreme or sovereign authority. It is enacted under the delegated
authority of the sovereign. The origin, validity, existence and continuance of such legislation
totally depends on the will of the sovereign authority. Subordinate legislation further can be
classified into the following type
autonomous Law: When a group of individuals recognized or incorporated under the law as an
autonomous body, is conferred with the power to make rules and regulation, the laws made by
such body fall under autonomous law. For instance, laws made by the bodies like Universities,
incorporated companies etc. fall in this category of legislation.
Judicial Rules: In some countries, judiciary is conferred with the power to make rules for their
administrative procedures. For instance, under the Constitution of India, the Supreme Court and
High Courts have been conferred with such kinds of power to regulate procedure and
administration.
Local laws: In some countries, local bodies are recognized and conferred with the lawmaking
powers. They are entitled to make bye-laws in their respective jurisdictions. In India, local
bodies like Panchayats and Municipal Corporations have been recognized by the Constitution
through the 73rd and 74th Constitutional amendments. The rules and byelaws enacted by them
are examples of local laws.
Colonial Law: Laws made by colonial countries for their colonies or the countries controlled by
them are known as colonial laws. For a long time, India was governed by the laws passed by
the British Parliament. However, as most countries of the world have gained independence from
the colonial powers, this legislation is losing its importance and may not be recognized as a kind
of legislation.
Laws made by the Executive : Laws are supposed to be enacted by the sovereign and the
sovereignty may be vested in one authority or it may be distributed among the various organs of
the State. In most of the modern States, sovereignty is generally divided among the three
organs of the State. The three organs of the State namely legislature, executive and judiciary
are vested with three different functions. The prime responsibility of law-making vests with the
legislature, while the executive is vested with the responsibility to implement the laws enacted
by the legislature.
However, the legislature delegates some of its law-making powers to executive organs which
are also termed delegated legislation. Delegated legislation is also a class of subordinate
legislation.
In welfare and modern states, the amount of legislation has increased manifold and it is not
possible for legislative bodies to go through all the details of law. Therefore, it deals with only a
fundamental part of the legislation and wide discretion has been given to the executive to fill the
gaps. This increasing tendency to delegate legislation has been criticized. However, delegated
legislation is resorted to, on account of reasons like paucity of time, technicalities of law and
emergency. Therefore, delegated legislation is sometimes considered as a necessary evil.