The major sources of law are: i) Legislation, ii) Precedents, iii) Custom.
Ch. 2-2 Legislation: as a superior source: over Precedent:
Salmond opines that 'Case law is gold in the mine, a few grains of the precious metal to the ton of useless matter, while Statute law is the coin of the realm ready lor immediate use'. Legislation is the main source of law. It consists of the declaration of legal rules by a competent authority like the Parliament or the other legislative bodies. It is an enunciation of principles having the force of law. The courts recognise these as law. Legislation also called Statute Law has become the standard form of law. The earlier forms, that is precedent, custom based on religious faith or practice or revelations of men have lost much of their efficacy. The result is that legislation is the most powerful and the latest instrument in legal growth. Advantages or virtues of Legislation: i) Abrogative and Reformative Powers: The first virtue is its abrogative power. It can abolish an existing law or make a new law. But, a precedent has constitutive efficacy-it is capable of producing very good law. But its operation is irreversible. Once it is stated it stands But, legislation can bring about reforms. Hence, legislation has destructive and reformative power.
The duty of the judiciary is to interpret the law and apply it . The legislature is superior as its duty is to make the law; administrators operate the law. Thus, there is a division in the labour and hence much efficiency.
iii) Prospective Operation:
Statute declares the law before the commission of any act to which it applies, thus it fulfills the principles of Natural Justice. Law will be known before it is enforced. A judicial precedent creates and declares in the very act of applying and enforcing it (e.g .Ryland V. Fletcher).
iv) Law of future:
Legislation can make Acts to meet circumstances not yet arisen. Precedent requires definite circumstances before the court. Legislation can fill up any vacancy i.e., settle any doubt that may come to the attention of the legislature. But, a bad precedent remains until another case comes up before the court for solving the doubt or for overruling it.
v) Superiority in form:
The legislature produces the law in the Statute form i.e. as Acts which are of standard form. Statute law is*brief, clear and easily know-able and accessible. But, case law is hidden deep and buried from sight in the huge records of litigation & Reports. Hence, case law is like gold that is in the gold mine, hidden in the rocks. But, Statute law is like a coin ready for immediate use. Salmond appreciates the perfection of the form of Statute Law. Statute Law is authoritative, and it is the duty of the Courts in interpret the words and their true meanings. But, in applying case law, the courts are dealing with the ideas and principles. Statute law is rigid, but case law has the merit that it appeals to reason and justice and hence flexible and adaptation is possible. Only when the words in the Statute are not clear, that the courts will have to interpret with reference in social purpose.
Ch. 2-3 Precedent:
For the purpose of jurisprudence the sources may be divided into 'legal and historical source's. The legal sources are authoritative, have a right in the courts and have helped the course of legal developments. E.g. The statutes, precedents writings of eminent jurists like Bentham, Austin etc.
The historical sources are not authoritative, cannot have claim as a right in the courts. Precedent therefore is a legal source. The distinguishing characteristic feature of English law is the judicial precedent. The unwritten law or the common law is purely aproduct of decided cases, from 13th Century. English judges have contributed considerably for the development of common law.
A judicial precedent speaks in England with authority. It is not merely evidence of the law but a source of it, and the courts are bound to follow the law that is so established. Precedent means 'anything said or done furnishing a rule for subsequent conduct'. Judicial decisions speak of truth and hence are followed in later cases. If so followed, such a decision becomes a precedent.
The doctrine of precedent has two meanings. In the first place in a loose meaning, it means that precedents are reported, may be cited and will probably be followed by the courts. In the second i.e. in the strict sense it means that precedents not only have great authority but in certain circumstances they must be followed. The two theories have many supporters. Sometimes a precedent may be unsatisfactory. The rule so laid down may be be reversed by the Parliament in making the law. Further, the judges have power to reverse their own decisions and correct the mistakes.
Broadly speaking precedents are:
1. Authoritative and 2. Persuasive.
This perhaps is the solution for the controversy between the two theories. An authoritative precedent is one which judges must follow whether they approve of it or not.
A persuasive precedent is one which the judges are under no obligation to follow, but must take it into consideration and attach such weight as it deserves i.e. it must by itself merit consideration in the eyes of the judges. Hence, it is true to say that authoritative precedents are legal sources of law but persuasive precedents are historical sources.
1. Authoritative precedent:
The decisions given by the superior courts are the authoritative precedents which must be followed. Hence the decisions of the House of Lords are authoritative in England. In India the decisions of the Supreme Court are binding on all the courts and authorities within the territory of India. (Art.141 Constitution of India). A High Court decision is binding on the lower courts under its jurisdiction in that State.
2. Persuasive precedent:
Persuasive precedents in England are the following: Foreign decisions e.g. Decisions of U.S. Supreme Court. The decision of other superior courts in the commonwealth countries. Privy council decisions. Judicial dicta.(Means observation stated by the way). In. India, so far as the Supreme Court is concerned, the decisions of the foreign courts, of the Privy Council and of the U.S. Supreme Courts etc. are persuasive in character. To the High Courts in India, decisions of the Privy Council, U.S. Supreme Court and decisions of other foreign courts are persuasive. When a precedent is referred to in a court, it is accepted or disregarded. But if it is authoritative, it is binding and should be accepted. If it is persuasive the court may accept or disregard it.
Disregarding may be of two kinds:
1. It may over-rule it or
2. It may refuse to follow it.
Such a overruled precedent is null and void. The courts of equal authority have no power to over-rule each other's decisions. If two High Courts have given conflicting opinions a legal anomaly is created. This can be resolved only by the Supreme Court. The meaning of over-ruling is that 'the supposed rule in that decision was not allowed at all. 'Hence the intermediate transactions will be governed by the new rule decided. Overruling is retrospective subject to certain exceptions.
Ch. 2-4 Circumstances which destroy or weaken the binding force of
1. Abrogation of decisions i.e. over-ruling of decisions.
2. Reversal of a precedent on a different ground.
3. A precedent given in ignorance of the relevant statue.
4. A precedent which his inconsistent with a decision of a High Court or Supreme Court.
5. Precedent sub silentia (not fully argued)
6. Erroneous decisions.
This may happen when the legislature makes a statute to negative the precedent. There is abrogation when the higher judicial authority either over-rules or reverses a precedent. There is overruling when the Supreme Court declares that a 'precedent' (of a High Court or Supreme Court) is wrongly decided. E.g. The Supreme Court over-ruled Golaknath's case, in Bharati's case. The position is that a case cannot be over-ruled by an obiter dictum (said by the way). Over-ruling may be express or implied. Implied over-ruling is a doctrine of recent origin. In such a circumstances, the earlier case is deprived of its binding authority.
2. Reversal on a different ground.
It may happen that on appeal, a case may be affirmed or reversed on a different ground. This means, that if the appeal is on ground A, the decision of the appellate court may be on ground B. Nothing is said about ground A. This may create some difficulty. According to Salmond, in such cases, the decision is deprived of its absolute binding nature.
3. Ignorance of Statute.
A decision is not binding if it is given on ignorance of a statute or a subordinate legislation. This was decided by the House of Lords in Young V. Bristol. This is so even if the court knew the existence of a provision in a statute or rule. Even a lower court may refuse to follow a precedent on such grounds.
4. Overlooking the decision of higher courts.
If a decision is given by a High Court, overlooking the Supreme Court precedent, then the High Court decision is a bad precedent
5. Inconsistency among earlier decisions of the same court.
The general rule is that a court is not bound by its own previous decisions if they are conflicting. This may happen when the counsels have not referred to relevant authorities, or it may be that the court has acted in ignorance or forgetfulness of the cases. The binding force of such precedents is weakened. The subsequent court may over-rule the decision.
6. Precedents sub silentio:
If the decision of the court does not perceive or look to the particular point of law involved, then there is sub silentio. If there are two points of law A & B and decision is given deciding on point A & not on point B(not argued) then there is sub silentio. The leading case is Gerard V. Worth. If the previous court decides a case without argument, with reference to the point of law, without any citation or authority, such a decision is not binding.
7. Decisions of equally divided courts: Where the court is equally divided, in the technical sense there is no decision at all. Hence, such a precedent, has no force at all.
Ratio decidendi :
What the Court decides generally, is the ratio decidendi or rule of law in a case before it. What it decides between the parties to the case, is binding on the parties. The parties under Res Judicata are barred from reopening the case after the final Court of authority makes the decision between them. If A sues B for negligent driving, parties A and B are bound by the decision of the final court. There are circumstances, when the judgment will be against all the world i.e, in rem. That is it is binding on all third parties. For example, a nullity declaration of a marriage by the Court, determines the status of the parties, but the decision is binding on all.
Development: The Ratio decidendi or rule of law is produced by the Court in its process of application by the judges. It should have been applied to the'parties in respect of live issues, argued on both sides. ' In the course of his judgment, the judge may refer to hypothetical situations, or may give his general reasoning. These are therefore not binding. They are called obiter dicta (observations made by the way) and hence, have no binding force. (Blackburn's dicta are exceptions) The Court declares the ratio, and, applies that to the facts determined by it. Later Courts, may not follow the ratio. They may distinguish or state exceptions to the earlier rule. For example, in Bridges V. Hawkesworth the plaintiff P found a bundle of currency notes on the floor of the shop of the defendant. The Court applied the principle of "finding is keeping" and held that P was entitled to the notes. However, in S.S. Water Company V.Sharman two golden rings were found by D in the mud pool owned by P. The court, distinguished the earlier case and said, in that case, the notes had been found on the floor of the shop (public place), whereas, in this case, the rings were in the mud owned by P (private place). The Court held that P was entitled/
Difficulty in finding ratio :
It is always not easy to find out what the ratio is in some cases. Cases are there where the Court may not have supplied the reasons.There are other extreme cases, where the decision is too lengthy, and very difficult to find the ratio.
Methods to determine ratio :
Prof. Wambaugh has suggested the "reversal test". This means, we must take the proposition of law (i.e.ratio) & reverse it (i.e., put the opposite of it) and, see whether that would change the decision. If it did, it is a ratio. This test is good but has its own limitations. The second method is stated by Dr.Goodhart. This is the material facts theory. This means we must ascertain all the relevant facts of the case, as determined by the judge and also look to the decision in respect of them. That is the ratio. This test is more theoretical than practical according to Salmond. When several separate judgments are given by the judges in a case, the difficulty in finding the ratio is all the more difficult for the Court. In such a case Lord Dunedin says, it is not the Courts duty to find out with great difficulty, the ratio, to be bound by it.
Ch. 2-6 Obiter Dicta :
Means "what is said by the way". This is opposed to ration decidendi.
A ratio decidendi, is a proposition of law or a rule, enunciated by the Court. It should have been applied to the parties, in respect of live issues, and also argued upon in the case. Such a ratio is binding on the later Court. In suitable cases, that court may distinguish the earlier decision. The importance of the "ratio" is that it is binding on the later Court. However, "obiter" is different. It refers to hypothetical situations or reasoning or circumstances referred to by the judge in his decision. These are generally the observations, made by the judge. The significance is that they are not binding. The Courts will not follow these observations. It goes to the credit of Blackburn J, for his dicta, in some leading cases, are followed with respect, by the Courts. But, the universal rule is that the obiter dicta are not binding on the later Courts.
Ch. 2-7 Requirements of valid custom:
'CUSTOM' observes Salmond 'is to society what law is to the State'. 'Each is the expression and realisation and the measure of the society's insight. The principles commend themselves to the community Custom embodies them, as acknowledged and approved not by the power of the state but by the public opinion of the society at large'. A custom may be legal or conventional. Legal Custom has the force of the law is conventional in usage. The following are the requirements of a valid custom,
i) Immemorial Antiquity :
The local custom should be long standing or of a fixed period which can be determined. Immemorial means beyond the memory of any living person. Hence, the custom must have been observed over a period, beyond the memory of any living person, i.e., for over 100
ii) Continuity :
The custom must have been enjoyed continuously. If no living man can contradict the custom set up, it must be presumed to be valid.
iii) Enjoyment as of right:
The custom must have been enjoyed as of right. If the custom has only been mentioned or followed by force or by stealth or with license it can have no claim to stand as a right. It must have been followed openly.
iv) Certainty :
The custom must be certain, clear and definite. That which is vague or not impressive will fail.
v) Reasonability :
The custom must be reasonable. This is the most complex and difficult of the requirements of a valid custom. What is reasonable or not is to be decided by the court in accordance with the prevailing notions of natural justice and public morality. Custom must not be either immoral or contrary to public utility.
vi) Conformity with the general law :
A local custom will not be admitted if it conflicts with the fundamental principles of the law of the land.
vii) Conformity with statute law :
The local custom must not conflict with any statute or any rule thereunder. '
viii) Compatibility with other customs :
It must not be incompatible with other customs within the same locality. The court cannot sanction two hostile rules or customs.
14 ix) Opinio juris sive necessitates :
"Jurists opinion as necessary". The necessary mental element that the custom is obligatory and not merely optional. Such a conviction of mind is obligatory. Reasons for reception of customary law as law :
1) Custom frequently contains principles of justice and public utility.
2) Backing custom, there is an established usage which is the basis of its continuance for the future.