Ø Law
is originated from religion as well as morality and that’s why there is some
sort of interaction between the legal system and religious system in our society.
Ø Customs
and morality had been always dominative role over Law. People
generally follows customs and moral values more than law. But
in today’s society, life is changing very rapidly and Law is controlling over
morality and religion. Law
is the only option which is leading to development of society. As
our society is multi-communitarian and multi-religious, so law is the only
weapon to fight against impartiality.
Ø
SoGenerally, sources
of law are- Custom, Precedents and Legislation.
Customs
Ø Customs may be defined as the social activity which has been followed by since the time
immemorial and plays a very significant role in society.
Ø Customs
are one of the ancient sources of Law.
Ø It
is the root of many laws.
Ø There
are two types of sources of law- Principle sources of law and secondary sources
of law. Customs falls under principle sources of law.
Ø When
a particular activity which is happening again and again in society becomes a
custom.
Ø Customs
are classified into two types- with sanctions and without sanctions.
Ø Customs
without sanctions can be defined as those customs which are enforced by the
society or law does not pressurize them on society.
Ø It
is also known as ‘positive morality’.
Ø Customs with sanctions may be defined as which
are obligatory and enforceable by the ruling body. These customs are divided into
two types- Legal customs and Conventional Customs.
Ø Legal
customs are those customs which are enforceable to everyone and violation of
these customs leads to punishment by law. There are two aspects of Legal
system- Local customs and General Customs.
Ø Local
customs are those customs which exists in a particular locality and followed by
the people of that locality only.
Ø When
communities shift from one place to another, they take their customs with them
to that place.
Ø Local
customs are also divided into two parts- Geographical local system and personal
local system.
Ø General
customs are those customs which are not limited to a locality or region, it is
being followed all over the nation.
Ø Conventional
customs are those customs which are legally binding to the society and has been
registered as an implied contract.
Ø There
are some characteristics of a valid custom: -
l Antiquity:
- Custom should be followed since the time immemorial so that it can be
enforceable.
l Reasonable:
- A custom should have certain reasons to be enforceable to society.
l Certainty:
- Custom should be clear so that it can be easily understood by society and
it should not be confusing.
l Consistency:
- custom should be so consistent so that two valid customs should not intersect
each other in order to values and principles.
l Conformity
with the law and public morality: - custom should not
oppose law of land and public policy then it will be a valid custom.
Precedents
Ø Precedents
are the rule of law which provides reasoning for the Judge’s decision which
sets out the principles for further cases.
Ø There
are two types of precedents: - Binding precedents and persuasive precedents.
Ø Binding
precedent are those types of precedents which are referred to as a legal principle
sets by the high courts which are followed by lower courts in a hierarchical way
while deciding the same types of cases.
Ø Features
for the binding precedent are: -
l It
must from the same hierarchy of courts.
l It
must from the supreme court- higher in the hierarchy of courts.
Ø All
lower courts are binding to follow the decisions of supreme court while supreme
court is binding to follow its previous decisions.
Ø Persuasive
precedents are those precedents which are not enforceable on lower courts.
Ø It
is more based on arguments, one who can convince judge by his arguments,
decision will be in his favor.
Ø Benefits
of using precedents as a source of law: -
l It
provides stability, fair justice and predictability.
l It
increases efficiency.
l It
makes the people believe in justice.
Ø Limitations
of using precedent as a custom: -
l There
are large number of cases so, it is very difficult to recognize which one
should be considered as precedent.
l Maximum
number of ratios leads to confusion that which ratio should be considered as
precedent.
Legislations
Ø Legislation
is derived from two words- Legis and latum. It means to make the law.
Ø Legislation
is mainly classified in two types- Supreme and Subordinate.
Ø Supreme
legislation is that legislation which is adopted by the supreme authority of
the state.
Ø Examples
of Supreme legislation are laws made by Parliament or state legislature.
Ø Subordinate
legislation is that legislation which is dependent on its continuous existence
or validity on superior authority of the state.
Ø Examples
of Subordinate legislation are Delegated legislation.
Ms. Isha Baloni is a Student Editor at MyLawman, who can be reached at ishamylawman@gmail.com alert-info
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