SOURCES OF LAW

• • Legislation

• • Precedent

• • Custom

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Sources of Law:
The common sources of law are codified laws, judicial
precedents, customs, juristic writings, expert opinions,
morality, and equity. With the growing popularity of the idea
of constitutionalism, legislations and precedents occupy the
center position amongst all the various sources of law. Let us
analyze the sources of law in the article.
Meaning
The meaning of the term “sources of law” differs from writer
to writer. The positivists use the term to denote the sovereign
or the State who makes and enforces the laws. The historical
school uses the term to refer to the origins of law. Others use
it to indicate the causes or subject matter of law. Prof. Fuller,
in his “Anatomy of the Law”, states that a judge interprets and
applies certain rules to decide upon a case. Such rules are
obtained from various places which are known as “sources”.
He further goes on to give examples of the common sources
of law such as codified laws, judicial precedents, customs,
juristic writings, expert opinions, morality, and equity.
Holland has defined the term to mean the sources of the
knowledge regarding law.
Classification / types
There exists no definite classification of the sources of law.
Different thinkers and jurists have given their own
classifications according to their own understanding of the
meaning of the term.
Salmond’s Classification
According to Salmond, there are two main sources of law-
formal and material. Formal sources are those from which law
derives its validity and force, that is, the will of the State
which is expressed through statutes (acts/laws) and judicial
decisions. He sub-divided the material sources into legal
sources and historical sources. Legal sources comprise of
legislations, precedent, custom, agreement and professional
opinion. They are authoritative in nature and origin and are
followed by the courts as a matter of right. On the other hand,
historical sources are those which are originally found in an
unauthoritative form and are subsequently admitted and
converted into legal principles. For instance, precedents are a
material source of law. However, domestic precedents are
legal source whereas foreign precedents are historical source.
Salmond’s classification of the sources into formal and
material sources is found to be unsatisfactory by critics. The
editor for the twelfth edition of Salmond’s ‘Jurisprudence’ has
classified the sources directly into legal and historical.
Keeton’s Classification
Keeton’s classification of the sources of law has emerged as a
analysis of Salmond’s classification. He defines the term as
those materials from which law is ultimately formed through
judicial activity. He classified the sources of law into- binding
sources and believable sources. Binding sources are those
which must be necessarily followed by the courts.
Legislations, judicial precedents, and customs are examples of
such source. Persuasive sources are those which come into
play when there is absence of any binding source on any
subject.
Foreign precedents, professional opinions and principles of
morality or equity are examples of persuasive sources of law.
Legislation as a source of law
Legislation means the process of lawmaking. Legis means law
and Latum mean “making”, and it means lawmaking.
According to Austin, it means the making of law by a
supreme or a sovereign authority which must be followed by
people of every stratum of the society. Salmond defines
Legislation as the process of lawmaking by a competent and
able authority.
Legislation is the process of lawmaking where a competent
authority is given the task of drafting and enacting the law in a
state. It is also said to be a strict concept of lawmaking
because there is only one body which is entrusted with the
work of lawmaking and also there is no scope of any
alteration as such because of codified and watertight laws
which leave a very minuscule range of the amendment.
Definition of Legislation
According to Salmond: “Legislation is that source of law
which includes in the declaration of lawful standards by a
competent specialist.”
According to Austin: “Legislation is the command of the
sovereign or the superior authority which must be followed by
the common masses backed by sanctions”.
According to Gray: “Legislation implies the formal
expression of the administrative organs of the general public.”
According to Positivist School: “A run of the mill law is a rule
and legislation is the typical source and form of lawmaking.”
Most examples of this school don’t affirm that the courts
additionally can figure law. They don’t concede the case of
custom as a wellspring of law. Consequently, they view just
legislation as the form of law.
According to Historical School: “The legislation is the least
innovative of the forms of law. The authoritative motivation
behind the legislation is to give the better framework and
increasingly viable the custom which is unexpectedly created
by the general population.”
Historical School usually do not perceive the legislation as a
form of law.
Types of Legislation
Legislation can have numerous reasons, for instance, to direct,
to approve, to endorse, to give, to authorize, to allow, to
proclaim, to confine and to annul. Therefore, in enacting any
legislation and the rule of law, the welfare of the citizens must
be kept in mind and therefore, it is must be adopted in the best
interests of the citizens.
Some different types of legislation are as follows.
Supreme Legislation
The Supreme legislation is the legislation adopted by the
sovereign intensity of the state. In this manner, some other
authorities which are the organ of the state cannot control or
check it. It is considered incomparable as well as lawfully
powerful. An established piece of this rule can be found in
Dicey’s book, ‘The Law of the Constitution ‘.
There is no legitimate restriction on its capacity. Indian
parliament is likewise preeminent. Even though there are
different constitutional amendments upon its capacity, it is not
subject to any
other administrative authorities inside the state. Therefore, the
sovereign jurisdiction of the state can’t be revoked, cancelled
or constrained by some other authoritative organ of the state.
Subordinate Legislation
Subordinate legislation will be legislation by some other
authority than the Supreme specialist in the state. It is made
under the powers designated by the Supreme authority. Such
legislation owes its reality, legitimacy, and continuation to the
Supreme expert. It can be cancelled and abrogated anytime by
the power of the sovereign authority and therefore, it must
offer an approach to sovereign legislation. Subordinate
legislation is liable to parliamentary control. Five unique
types of subordinate legislation can be distinguished. These
are as follows.
Colonial Legislation
The nations which are not autonomous and are under the
control of some other state have no Supreme capacity to make
law. Such countries can be in different classes such as
colonies, domains, secured or trust regions and so forth. The
laws made by them are subject to the Supreme legislation of
the state under whose control they are. Therefore, it is
subordinate legislation.
England has had numerous colonies and territories. The laws
made by them for the self-government are subject to
modification, nullification, or supersession by the legislation
of the British Parliament. As the colonies are free,
accomplished freedom and practically all the British domains
have an unlimited power for legislation, hence sooner rather
than later, we might have this class of subordinate legislation
no more in existence.
Executive Legislation
At the point when legislative powers are delegated by the
designated official to an executive, it is called executive
legislation. Even though the significant capacity of the official
is to execute the laws and carry on the organization, he/she is
continuously dependent on some subordinate enactment
powers. Today, for all intents and purposes of each law
sanctioned by the lawmaking body contains assignment
statements giving law-making powers by the official to the
executive to enhance the statutory arrangements.
Judicial Legislation
Powers delegated to the judicial system to make and
implement their own laws to maintain transparency in the
judicial system of the country. This will also ensure that there
is no involvement of any other organ of the government in the
governance of the judicial system of the state.
Municipal Legislation
Municipal bodies are offered powers to make byelaws
concerning their neighborhood matters. Byelaw made by a
neighborhood body works inside its individual area. In India,
such municipal bodies are Municipal corporations, Municipal
Boards, Zila Parishads, and so on. There is a move for
allowing extensive powers to Panchayats. Along these lines,
there is a plausibility of extension of this sort of subordinate
enactment in our nation. Balwant Rai committee appointed by
the Parliament gave some parliamentary reforms needed in the
Panchayat system of the country. The recommendations were
later incorporated in the Constitution by 73rd Amendment.
Autonomous Legislation
At the point when the Supreme authority gives powers upon a
gathering of people to administer on the issues depended to
them as a gathering, the law made by the last is known as the
autonomous law and the body is known as a self-ruling body.
A railway is an independent body. It makes byelaws for the
guideline of its organization, and so on. A college is likewise
a self-governing body. Even some universities in India have
been granted the status of autonomous bodies.
Delegated Legislation
Delegated (subordinate or subsidiary) Legislation alludes to
those laws made by people or bodies to whom parliament has
delegated law-making powers.
Where Acts are made by Parliament, a Principal Act may
cause arrangement for Subsidiary Legislation to be made and
will indicate who can make laws as such under that Act.
Delegated Legislation can just exist in connection to an
empowering or parent Act.
Delegated Legislation contains the numerous regulatory
subtleties essential to guarantee that the arrangements of the
Act will work effectively. It might be directed by Government
Departments, Local Councils or Courts.
Guidelines and Statutory Rules are the most widely
recognized types of Delegated Legislation. They are made by
the Executive or a Minister which apply to the overall public.
By-laws, and occasionally Ordinances are made by a Local
Government Authority which also applies to the general
population who live around there. Principle and Parent Act
regularly depict methodology to be followed in Courts if there
is any flaw in a delegated law.
Advantages of Legislation as a Source of Law
Verifiably additionally the legislation has dependably been
perceived as a significant wellspring of law as contrasted and
different sources. There are two apparent explanations behind
the legislation is viewed as a standout amongst the most
significant sources of law. Right off the bat, it includes setting
down of legitimate principles by the lawmaking bodies which
the State perceives as law.
Besides, it has the power and authority of the State. It is hence
said by Dias and Hughes that conscious law-production by a
legitimate power, i.e., the State is called ‘legislation’ which
gave that sovereign is correctly perceived as the supreme
power by the courts. Relative Merit of Legislation over
Precedent and customs have been discussed below.
Some main advantages of legislation are as follows:
i i. Abrogative Power—It can change or annul old law;
which control isn’t controlled by different sources.
ii ii. Effectiveness—It separates the elements of making
law and overseeing it between the Legislature and the legal
executive.
iii iii. Declaration — it gives that principles of law will be
known before they are authorized.
iv iv. Reliance on Accidental Legislation — Legislation is
independent and emerges out of as the authoritative source of
law it need not hold up until the original case of legislation.
v v. Unrivalled in Form — It is predominant in structure,
brief, clear, effectively available, and understandable as
against case law, which is an increase of sense in a
considerable amount of pointless issue.
Precedent and Legislation
The legislation has its source in the process of law which is
basically enacted and enforced by the State while the
precedent has its origin in ancient and historic judicial
pronouncements.
Legislation has an authoritative force on courts by the
assembly. However, precedents are made by the courts
themselves.
Legislation signifies formal declaration of law by the
governing body though precedents are acknowledgement and
use of new standards of law by courts in the administration of
equity, justice and good conscience.
Legislation is ordered before a case emerges. However, the
precedent appears simply after the case has developed and
taken for the choice of the court.
Legislation is basically of an exhaustive structure while the
extent of legal precedent is restricted to comparable cases as it
were.
Legislation is commonly and generally forthcoming while
precedent is retrospective in nature.
Legislation is announced or distributed before it is brought
into power, on the other hand, precedent comes into power on
the double, i.e., when the choice is articulated.
Legislation is finished with the goal of the lawmaking
process, yet it is not so on account of the precedent. The
precedent which incorporates ratio decidendi and obiter dicta
are expected to settle a particular contest on the purpose of
law once for all.
It isn’t hard for people, in general, to realize the law instituted
by lawmaking body yet the precedent dependent on the case
law isn’t effectively known to the general population. Now
and
again, the attorneys who manage law are themselves oblivious
about the current case-law. Therefore, it makes a precedent of
an ambiguous nature.
Legislation includes law-production by deductive strategy
while case-law is made by resorting to an inductive technique.
Legislation and Custom
The presence of legislation is basically by law, while
customary law is wholly accepted in a particular boundary.
Legislation is enacted out of hypothetical standards. However,
customary law becomes is adopted because of its very well
and long presence in history.
Legislation as a source is indeed a long-lasting nature of law,
as contrasted to the custom which is the most established type
of law and is followed by a particular sect.
The legislation is a fundamental characteristic for a present-
day society while the customary law was created in a crude
social order.
Legislation is finished, exact, written in the structure and
effectively open. However, customary law is generally
unwritten am non-scriptum and is hard to follow.
Legislation results out of the deliberations while custom
develops inside the public in the ordinary course.
Demerits of Legislation
There is no source of law which is perfect and totally
complete in its form and sense, some lacunas and loopholes
could be easily found in every source of law which is as
follows in the case of legislation.
Unbending nature—Law in the legislation is inflexible though
the law in the precedents is versatile and adaptable.
In view of Hypothesis — Legislation, for the most part,
continues speculative certainties, by considering the existing
environment and surrounding in which the established law is
frequently observed to be blemished in its application to the
mind-boggling issues emerging in genuine life though piece-
scratches develop out of the commonsense exigencies and
convenience.
An excessive amount of Importance to the Wordings—
Legislation appends a lot of significance to its wordings.
Thus, if the articulation is faulty, the law gets effectively
turned. In the precedents, the wording matters close to nothing
as there is a genuine introduction which performs separate
checks on the applicability of precedent as a source of law.
Same goes with the customary law as well.
Legislation is therefore regarded as the most important source
of law in the prevalent times. Hence it is the codified form of
law which is commanded by the sovereign to the common
masses, and it becomes a predicament situation to regard
legislation as the authoritative source of law.
Legislation is one of the foremost and most important sources
of law in today’s world. Most countries in today’s world
regard legislation as an essential source of law and follow this
system of lawmaking. Although some lacunae and loopholes
are there which exists in the present form
but then too the difficulties such faced are relatively less than
that faced from the other sources of law viz. custom and
precedent as legislation as a source of law tries to bring
uniformity by avoiding the ambiguity.
Precedent as a source of law
Every developed legal system possesses a judicial organ. The
main function of the judicial organ is to adjudicate the rights
and obligations of the citizens. In the beginning, in this
adjudication, the courts are guided by customs and their own
sense of justice. As society progresses, legislation becomes
the main source of law and the judges decide cases according
to it. Even at this stage, the judges perform some creative
function. In the cases of the first impression, in the matters of
interpretation, or in filling up any lacuna in the law made by
legislation the judges, to some extent, depend on their sense of
right and wrong and in doing so, they adopt the law to the
changed conditions.
Inductive and Deductive Methods
In the inductive method, there is a great reliance placed upon
the decisions of the judges. Before deciding a case, the judges
investigate previously decided cases of a similar nature by
their own court or by the superior court. From cases, they
deduce general rules, and apply them on the cases before them
and decide accordingly. This is known as Inductive method.
In the deductive method, there is a great reliance placed
legislatures and enacted statues. In such a system, the cases
are decided on the basis the enacted legislature and statue that
are codified, and the judges decide cases based on these codes
and not based on previously decided cases. This method is
called the Deductive method.
Authority of Previously Decided Cases
In almost all legal systems, the judges take guidance from the
previous decisions on the point and rely upon them. But the
authority of such decisions is not the same in all the legal
systems. In most of the countries including India, acquire their
knowledge of the law through decisions of higher tribunals
than from anything else. Such decisions are compiled and
published in reports. These reports are valuable from the legal
literature perspective. These decisions are very efficient in
deciding cases of subsequent cases of similar nature. They are
called judicial precedents or precedents.
Definition
In general English, the term precedent means, ‘a previous
instance or case which is, or may be taken as an example of
rule for subsequent cases, or by which some similar act or
circumstances may be supported or justified.’
According to Gray, ‘precedent covers everything said or done,
which furnishes a rule for subsequent practice.’
According to Keeton, ‘a judicial precedent is judicial to which
authority has in some measure been attached.’
According to Salmond, ‘in a loose sense, it includes merely
reported case law which may be cited & followed by courts.’
In a strict sense, that case law which not only has a great
binding authority but must also be followed.
According to Bentham precedents are ‘Judge made Law.’
According to Austin precedents are ‘Judiciary’s Law.’
In general, in the judicial field, it means the guidance or
authority of past decisions for future cases. Only such
decisions as lay down some new rule or principle are called
judicial precedents. The application of such judicial decisions
is governed by different principles in different legal systems.
These principles are called ‘Doctrine of Precedent’. For this
case to be held, first such precedents must be reported, maybe
cited and may probably be followed by courts. Secondly, the
precedent under certain circumstances must be followed.
Thus, it can be inferred that precedents are:
• • Guidance or authority of past decisions for future cases.
• • Precedents must be reported, maybe cited and may
probably be followed by courts.

• • Precedents must have opinio-juris.

• • These must be followed widely for a long time and
must not violate any existing statue law.

Nature of Precedents
They must be purely constitutive and not abrogative at all.
This means that a judicial decision can make a law but cannot
alter it. Where there is a settled rule of law, it is the duty of
the judges to follow the same. They cannot substitute their
opinions for the established rule of law. The function is
limited to supplying the vacancies of the legal systems, filling
up with new law the gaps that exist.
Importance of Precedents
In the Ancient Legal System, the importance of the decisions
as a source of law was recognized even in very early times. In
the past, there have been numerous instances of this. Sir
Edward Coke, in the preface of the sixth part of his report, has
been written that Moses was the first law reporter. ‘In the case
of the daughters of Zelophehad, narrated at the beginning of
the twenty- seventh chapter of the book of numbers, the facts
are stated with the great clearness and expressly as a
precedent which ought to be followed.’
Even in the Mahabharata, it has been stated that ‘The path is
the right one which has been followed by virtuous men.’ This
may be interpreted as giving a theory of precedent. In ancient
legal systems of Babylonia and China, the judicial decisions
were a great authority, and later on, they were embodied in
code law.
In the Modern Legal System, among the modern legal
systems, the Anglo – American law is judge made law. It is
called ‘Common Law’. It developed mainly through judicial
decisions. Most of the branches of law, such as torts, have
been created exclusively by judges. The Constitutional Law of
England, especially the freedom of the citizens, developed
through judicial decisions.
According to Tennyson, “where freedom slowly broadness
down, from precedent to precedent.” Not only in the
municipal law but in international law also, the precedents
have their importance. The decisions of the International
Court of Justice are an important source of International law.
These precedents have been recognized by the International
Court of Justice by Article 38(2)(d) of the Statue of the
International Court of Justice. Further, Article 59 of the same
holds that the decisions of the court only have persuasive
value for future cases and hence the International Court
of Justice is not bound by its own decisions in deciding
similar cases in future. It holds that the decision is only
binding the parties to the case.
The above brief discussion indicates the role and importance
of decisions on precedents in the development of law and their
importance as a source of law at the municipal as well as the
international level.
Types of Precedents
Persuasive precedents
Persuasive precedent (also persuasive authority) is precedent
or other legal writing that is related to the case at hand but is
not a binding precedent on the court under common law legal
systems such as English law. However, a persuasive authority
may guide the judge in making the decision in the instant
case. Persuasive precedent may come from several sources
such as lower courts, “horizontal” courts, foreign courts,
statements made in dicta, treatises or law reviews. In Civil law
and pluralist systems, as under Scots law, precedent is not
binding but case law is considered by the courts.
Lower Courts
A lower court’s opinion may be considered as persuasive
authority if the judge believes they have applied the correct
legal principle and reasoning.
Higher Courts in other Circuits
A court may consider the ruling of a higher court that is not
binding. For example, a district court in the United States First
Circuit could consider a ruling made by the United States
Court of Appeals for the Ninth Circuit as persuasive authority.
Horizontal Courts
Courts may consider rulings made in other courts that are of
equivalent authority in the legal system. For example, an
appellate court for one district could consider a ruling issued
by an appeals court in another district.
Statements made in obiter dicta
Courts may consider obiter dicta in opinions of higher courts.
Dicta of a higher court, though not binding, will often be
persuasive to lower courts.
The obiter dicta is usually, as its translation “other things
said”, but due to the high number of judges and several
personal decisions, it is often hard to distinguish from the
ratio decidendi (reason for the decision). For this reason, the
obiter dicta may usually be taken into consideration.
A Dissenting judgment
A judgment heard by a tribunal, and one judge dissented from
the decision. The judge in the next case can decide to follow
the dissenting judge’s obiter and rationale. The judge can only
opt to overturn the holding of a court lower or equivalent in
the hierarchy, however. A district court, for example, could
not rely on a Supreme Court dissent as a rationale for ruling
on the case at hand.
Treatises, Restatements, Law Review Articles
Courts may consider the writings of eminent legal scholars in
treatises, restatements of the law, and law reviews. The extent
to which judges find these types of writings will vary widely
with elements such as the reputation of the author and the
relevance of the argument.
Courts in other countries
An English court might cite judgments from countries that
share the English common law tradition. These include other
commonwealth states (for example Canada, Australia, or New
Zealand) and, to some extent, the United States.
It is controversial whether it is appropriate for a U.S. court to
consider foreign law or precedents. The Supreme Court splits
on this issue. In Atkins v. Virginia, for example, the majority
cited the fact that the European Union forbid death penalty as
part of their reasoning, while Chief Justice Rehnquist
denounced the “Court’s decision to place weight on foreign
laws.” The House of Representatives passed a nonbinding
resolution criticizing the citing of foreign law and
“reaffirming American independence.”
Binding precedents
In law, a binding precedent (also mandatory precedent or
binding authority) is a precedent which must be followed by
all lower courts under common law legal systems. In English
law, it is usually created by the decision of a higher court,
such as the Supreme Court of the United Kingdom, which
took over the judicial functions of the House of Lords in 2009.
In Civil law and pluralist systems, as under Scots law,
precedent is not binding but case law is considered by the
courts.
Binding precedent relies on the legal principle of stare decisis.
A stare decisis means to stand by things decided. It ensures
certainty and consistency in the application of the law.
Existing binding precedents from past cases are applied in
principle to new situations by analogy.
There are three elements needed for a precedent to work.
Firstly, the hierarchy of the courts needs to be accepted, and
an efficient system of law reporting. ‘A balance must be
struck between the
need on one side for the legal certainty resulting from the
binding effect of previous decisions, and on the other side the
avoidance of undue restriction on the proper development of
the law.
Binding Precedent in England
Judges are bound by the law of binding precedents in England
and Wales and other common law jurisdictions. This is a
distinctive feature of the English legal system. In Scotland and
many countries throughout the world, particularly in mainland
Europe, civil law means that judges take case law into account
in a similar way but are not obliged to do so and are required
to consider the precedent in terms of principle. Their fellow
judges’ decisions may be persuasive but are not binding.
Under the English legal system, judges are not necessarily
entitled to make their own decisions about the development or
interpretations of the law. They may be bound by a decision
reached in a previous case. Two facts are crucial to
determining whether a precedent is binding:
The position in the court hierarchy of the court which decided
the precedent, relative to the position in the court trying the
current case.
Whether the facts of the current case come within in the scope
the principle of law in previous decisions.
Stare Decisis
Stare decisis is the legal principle by which judges are obliged
to respect the precedents established by prior decisions. The
words originate from the phrasing of the principle in the Latin
maxim Stare decisis et non quieta movere: “to stand by
decisions and not disturb the undisturbed.” In a legal
context, this is understood to mean that courts should
generally abide by precedents and not disturb settled matters.
This doctrine is basically a requirement that a Court must
follow the rules established by a Court above it. The doctrine
that holdings have binding precedence value is not valid
within most civil law jurisdictions as it is generally
understood that this principle interferes with the right of
judges to interpret law and the right of the legislature to make
law. Most such systems, however, recognize the concept of
jurisprudence constante, which argues that even though judges
are independent, they should judge in a predictable and non-
chaotic manner. Therefore, judges’ right to interpret law does
not preclude the adoption of a small number of selected
binding case laws.
Authority of Precedents
The authority of a decision as a precedent lies in its Ratio
Decidendi.
Ratio Decidendi and Obiter Dictum
There are cases which involve questions which admit of being
answered on principles. Such principles are deduced by way
of abstraction of the material facts of the case eliminating the
immaterial elements. The principle that comes out because of
such case is not applicable only to that case, but to cases also
which are like the decided case in their essential features. This
principle is called Ratio Decidendi. The issues which need the
determination of no general principles are answered on the
circumstances of the case and lay down no principles of
general application. These are called Obiter Dictum.
It is the Ratio Decidendi of a case that is binding and not the
Obiter Dictum that has a binding effect of a Precedent. But it
is for the judge to determine the Ratio Decidendi of the
decision and
to apply it on the case which he is going to decide. This gives
an opportunity to him to mold the law according to the
changed conditions by laying emphasis on one or the other
point.
Merits of The Doctrine of Precedents
It shows respect to one ancestors’ opinion. Eminent jurists
like Coke and Blackstone have supported the doctrine on this
ground. The say that there are always some reasons behind
these opinions, we may or may not understand them.
Precedents are based on customs, and therefore, they should
be followed. Courts follow them because these judicial
decisions are the principal and most authoritative evidence
that can be given of the existence of such a custom as shall
form a part of the common law.
As a matter of great convenience, it is necessary that a
question once decided should be settled and should not be
subject to re-argument in every case in which it arises. It will
save the labor of the judges and the lawyers.
Precedents bring certainty in the law. If the courts do not
follow precedents and the judges start deciding and
determining issues every time afresh without having regard to
the previous decisions on the point, the law would become the
most uncertain.
Precedents bring flexibility to law. Judges in giving their
decisions are influenced by social, economic and many other
values of their age. They mold and shape the law according to
the changed conditions and thus bring flexibility to law.
Precedents are Judge made law. Therefore, they are more
practical. They are based on cases. It is not like statue law
which is based on a priori theory. The law develops through
precedents according to actual cases.
Precedents bring scientific development to law. In a case,
Baron Parke observed ‘It appears to me to be great importance
to keep the principle of decision steadily in view, not merely
for the determination of the particular case, but for the interest
of law as a science.’
Precedents guide judges and consequently, they are prevented
from committing errors which they would have committed in
the absence of precedents. Following precedents, judges are
prevented from any prejudice and partially because precedents
are binding on them. By deciding cases on established
principles, the confidence of the people on the judiciary is
strengthened.
As a matter of policy, decisions, once made on principal
should not be departed from in ordinary course.
Demerits of The Doctrine of Precedents
There is always a possibility of overlooking authorities. The
vastly increasing number of cases has an overwhelming effect
on the judge and the lawyer. It is difficult to trace out all the
relevant authorities on the very point.
Sometimes, the conflicting decisions of superior tribunal
throw the judge of a lower court on the horns of a dilemma.
The courts faced with what an English judge called “complete
fog of authorities.”
A great demerit of the doctrine of precedent is that the
development of the law depends on the incidents of litigation.
Sometimes, the most important points may remain
unadjudicated because nobody brought an action upon them.
A very grave demerit or rather an anomaly of the doctrine of
precedent is that sometimes it is the extremely erroneous
decision is established as law due to not being brought before
a superior court.
Factors Undermining the Authority Of A Precedent
i i. Abrogated decisions – A decision ceases to be binding
if a statute or statutory rule inconsistent with it is subsequently
enacted, or if it is reversed or overruled by a higher court.
ii ii. Same decision on appeal is reversed by the appellate
court. – 24th amendment of Indian Constitution was passed to
nullify the decision of the SC in the case of Golaknath.
iii iii. Affirmation and Reversal on a Different Ground – A
decision is affirmed or reversed on appeal on a different point.
iv iv. Ignorance of Statute – A precedent is not binding if it
was rendered in ignorance of a statute or a rule having the
force of statute i.e., delegated legislation. A court may know
of existence of the statute or rule and yet not appreciate in the
matter in hand. Such a mistake also vitiates the decision. Even
a lower court can refuse to follow a precedent on this ground.
v v. Inconsistency with Earlier Decision of Higher Court –
A precedent is not binding if the court that decided it
overlooked an inconsistent decision of a high court. High
courts cannot ignore decision of Supreme Court of India.
vi vi. Inconsistency with Earlier Decision of Same Rank –
A court is not bound by its own previous decisions that
conflict with one another. The court of appeal and other courts
are free to choose between conflicting decisions, even though
this might amount to preferring an earlier decision to a later
decision.
i vii. Precedent sub silentio or not fully argued – When a
point is not involved in a decision is not taken notice of and is
not argued by a counsel, the court may decide in favor of one
party, whereas if all the points had been put forth, the decision
in favor of one party. Hence, such a rule is not an authority on
the point which had not been argued and this point is said to
pass sub silentio. Binding force of a precedent does not
depend on whether a particular argument was considered
therein or not, provided the point with reference to which an
argument was subsequently advanced was decided by the SC.

Circumstances Which Increase The Authority Of A

Precedent
i i. The number of judges constituting the bench and their
eminence is an important factor in increasing the authority of
precedent.
ii ii. A unanimous decision carries more weight.
iii iii. Affirmation, approval or following by other courts,
especially by a higher tribunal, adds to the strength of a
precedent.
iv iv. If an Act is passed embodying the law in a precedent,
the gains an added authority.

Comparison Between Different Legal Systems

U.S. legal system
In the United States, which uses a common law system in its
state courts and to a lesser extent in its federal courts, the
Ninth Circuit Court of Appeals has stated:
Stare decisis is the policy of the court to stand by precedent;
the term is but an abbreviation of stare decisis et quieta non
movere — “to stand by and adhere to decisions and not
disturb what is
settled.” Consider the word “decisis.” The word means,
literally and legally, the decision. Nor is the doctrine stare
dictis; it is not “to stand by or keep to what was said.” Nor is
the doctrine stare rationibus decidendi — “to keep to the
rationes decidendi of past cases.” Rather, under the doctrine
of stare decisis a case is important only for what it decides —
for the “what,” not for the “why,” and not for the “how.”
Insofar as precedent is concerned, stare decisis is important
only for the decision, for the detailed legal consequence
following a detailed set of facts.
In other words, stare decisis applies to the holding of a case,
rather than to obiter dicta (“things said by the way”). As the
United States Supreme Court has put it: “dicta may be
followed if sufficiently persuasive but are not binding.”
In the United States Supreme Court, the principle of stare
decisis is most flexible in constitutional cases:
Stare decisis is usually the wise policy, because in most
matters it is more important that the applicable rule of law be
settled than that it be settled right. But in cases involving the
Federal Constitution, where correction through legislative
action is practically impossible, this Court has often overruled
its earlier decisions. This is strikingly true of cases under the
due process clause.
For example, in the years 1946–1992, the U.S. Supreme Court
reversed itself in about 130 cases. The U.S. Supreme Court
has further explained as follows:
When convinced of former error, this Court has never felt
constrained to follow precedent. In constitutional questions,
where correction depends upon amendment, and not upon
legislative action, this Court throughout its history has freely
exercised its power to re-examine the basis of its
constitutional decisions.
English legal system
The doctrine of binding precedent or stare decisis is basic to
the English legal system, and to the legal systems that derived
from it such as those of Australia, Canada, Hong Kong, New
Zealand, Pakistan, Singapore, Malaysia, and South Africa. A
precedent is a statement made of the law by a Judge in
deciding a case. The doctrine states that within the hierarchy
of the English courts a decision by a superior court will be
binding on inferior courts. This means that when judges try
cases they must check to see if similar cases have been tried
by a court previously. If there was a precedent set by an equal
or superior court, then a judge should obey that precedent. If
there is a precedent set by an inferior court, a judge does not
have to follow it, but may consider it. The House of Lords
(now the Supreme Court) however does not have to obey its
own precedents.
Only the statements of law are binding. This is known as the
reason for the decision or ratio decidendi. All other reasons
are “by the way” or obiter dictum. See Rondel v. Worsley. A
precedent does not bind a court if it finds there was a lack of
care in the original “Per Incuriam”. For example, if a statutory
provision or precedent had not been brought to the previous
court’s attention before its decision, the precedent would not
be binding. Also, if a court finds a material difference
between cases then it can choose not to be bound by the
precedent. Persuasive precedents are those that have been set
by courts lower in the hierarchy. They may be persuasive but
are not binding. Most importantly, precedents can be
overruled by a subsequent decision by a superior court or by
an Act of Parliament.
Civil Law System
Stare decisis is not usually a doctrine used in civil law court
system, because it violates the principle that only the
legislature may make law. In theory therefore, lower courts
are generally
not bound to precedents established by higher courts. In
practice, the need to have predictability means that lower
courts generally defer to precedents by higher courts and in a
sense, the highest courts in civil law jurisdictions, such as the
Cour de cassation and the Conseil d’État in France are
recognized as being bodies of a quasi-legislative nature.
The doctrine of stare decisis also influences how court
decisions are structured. In general, court decisions in
common law jurisdictions are extremely wordy and go into
detail as to the how the decision was reached. This occurs to
justify a court decision based on previous case law as well as
to make it easier to use the decision as a precedent in future
cases.
By contrast, court decisions in some civil law jurisdictions
(most prominently France) tend to be extremely brief,
mentioning only the relevant legislation and not going into
detail about how a decision was reached. This is the result of
the theoretical view that the court is only interpreting the view
of the legislature and that detailed exposition is unnecessary.
Because of this, much more of the exposition of the law is
done by academic jurists which provide the explanations that
in common law nations would be provided by the judges
themselves.
In other civil law jurisdictions, such as the German-speaking
countries, court opinions tend to be much longer than in
France, and courts will frequently cite previous cases and
academic writing. However, e.g., German courts put less
emphasis of the particular facts of the case than common law
courts, but on the discussion of various doctrinal arguments
and on finding what the correct interpretation of the law is.
Indian Legal System
Indian Law is largely based on English common law because
of the long period of British colonial influence during the
period of the British Raj.
After the failed rebellion against the British in 1857, the
British Parliament took over the reign of India from the
British East India Company, and British India came under the
direct rule of the Crown. The British Parliament passed the
Government of India Act of 1858 to this effect, which set up
the structure of British government in India. It established in
England the office of the Secretary of State for India through
whom the Parliament would exercise its rule, along with a
Council of India to aid him. It also established the office of
the Governor-General of India along with an Executive
Council in India, which consisted of high officials of the
British Government.
Much of contemporary Indian law shows substantial
European and American influence. Various legislations first
introduced by the British are still in effect in their modified
forms today. During the drafting of the Indian Constitution,
laws from Ireland, the United States, Britain, and France were
all synthesized to get a refined set of Indian laws, as it
currently stands. Indian laws also adhere to the United
Nations guidelines on human rights law and the
environmental law. Certain international trade laws, such as
those on intellectual property, are also enforced in India.
Indian family law is complex, with each religion adhering to
its own specific laws. In most states, registering marriages and
divorces is not compulsory. There are separate laws governing
Hindus, Muslims, Christians, Sikhs, and followers of other
religions. The exception to this rule is in the state of Goa,
where a Portuguese uniform civil code is in place, in which all
religions have a common law regarding marriages, divorces
and adoption.
Ancient India represented a distinct tradition of law and had
an historically independent school of legal theory and
practice. The Arthashastra, dating from 400 BC and the
Manusmriti, from 100 AD, were influential treatises in India,
texts that were considered authoritative legal guidance.
Manu’s central philosophy was tolerance and pluralism and
was cited across Southeast Asia. Early
in this period, which finally culminated in the creation of the
Gupta Empire, relations with ancient Greece and Rome were
not infrequent. The appearance of similar fundamental
institutions of international law in various parts of the world
show that they are inherent in international society,
irrespective of culture and tradition. Inter-State relations in the
pre-Islamic period resulted in clear-cut rules of warfare of a
high humanitarian standard, in rules of neutrality, of treaty
law, of customary law embodied in religious charters, in
exchange of embassies of a temporary or semi-permanent
character. When India became part of the British Empire,
there was a break in tradition, and Hindu and Islamic law
were supplanted by the common law. As a result, the present
judicial system of the country derives largely from the British
system and has little correlation to the institutions of the pre-
British era.
From the brief discussion above about the legal value of
precedents we can clearly infer that these play an important
role in filling up the lacunas in law and the various statues.
These also help in the upholding of customs that influence the
region thereby making decisions morally acceptable for the
people. This thereby increases their faith in the judiciary
which helps in legal development.
These moreover being a sort of respect for the earlier views of
various renowned jurists, helps in upholding the principle of
stare decisis. It is a matter of great convenience it is necessary
that a question once decided should be settled and should not
be subject to re-argument in every case in which it arises. It
will save labor of the judges and the lawyers. This way it
saves lots of time for the judiciary which is a real challenge in
the present-day legal system with so many cases still pending
for many years now. Precedents bring certainty in law.
If the courts do not follow precedents and the judges start
deciding and determining issues every time afresh without
having regard to the previous decisions on the point, the law
would become
the most uncertain. Precedents bring flexibility to law. Judges
in giving their decisions are influenced by social, economic
and many other values of their age. They mold and shape the
law according to the changed conditions and thus bring
flexibility to law.
Custom as a source of law
Customs are the earliest sources of law and form the basis of
the English Common Law system as we see it today. They can
be described as cultural practices which have become definite
and backed by obligation or sanction just by virtue of
widespread practice and continue presence.
Definitions
John Salmond
“Custom is the embodiment of those principles which have
commended themselves to the national conscience as
principles of justice and public utility.”
For Salmond, a valid custom has absolute legal authority
which as the force of law. He divides Customs into two:
General Custom – A general custom has the force of law
throughout the territory of a state. For example, the Common
Law in England.
Local Custom – The local custom are those which operate
have the force of law in a particular locality. The authority of
a local custom is higher than that of general custom.
C.K. Allen
C.K. Allen defines custom as “legal and social phenomenon
growing up by forces inherent in society—forces partly of
reason and necessity, and partly of suggestion and imitation.”
J.L. Austin
“Custom is a rule of conduct which the governed observe
spontaneous and not in pursuance of law settled by a political
superior.”
Austin’s ideas were often seen in contravention to customary
law because for him, the political superior was the only source
of law and customs were not ‘real law’. They needed the
assent and command of the Sovereign to be considered law.
Robert Keeton
“Customary law may be defined as those rules of human
action established by usage and regarded as legally binding by
those to whom the rules are applicable, which are adopted by
the courts and applied as source of law, because they are
generally followed by the political society as a whole, or by
some part of it.”
Origin of Customs
In primitive societies, there was no external authority over
people, yet people organized themselves in cohesive groups
with a mechanism for fairness and liberty.
People developed rules and regulations through spontaneous
reaction to their circumstances as well as a coordinated
conscious decision to arrive at them.
Eventually, people started recognizing traditions, practices,
rituals which were prevalent in a certain territory or group and
saw how they formed a systematized approach to social
regulation.
In Britain, Jurists and legislators started studying these
patterns, recording their prevalence, usage and applicability.
These came to be known as customs, which were then
formalized and put into legislation in the Common Law of
England.
There are two philosophers with alternate views as to how
customs originate.
Sir Henry Maine
According to Sir Henry Maine, “Custom is conception
posterior to that of Themistes or judgments.” Themistes were
judicial awards which were dictated to the King by the Greek
goddess of justice. He explained, “Themistes, Themises, the
plural of Themis, are the awards themselves, divinely dictated
to the judges.
He described the development in distinct steps. These are:
i i. Law by rulers under divine inspiration

At the first stage, law was given by rulers who sought divine
sanction for their commands. They were believed to be
messengers of God, laying out the law for the people.
i ii. Developing of Customs
Gradually, as people get into the habit of following the
dictates of their rulers, they develop into customary law, and
becomes a part of people’s daily living.
i iii. Knowledge of law in the hands of priests

The knowledge of customs and practises is then studied by a

minority, primarily religious people. This is possible due to
the weakening of the power of the rulers over people. Priests
study customs, recognize patterns, understand their relevance,
and formalize customs.
i iv. 4. Codification

The last and final stage is that of codifying these laws. Priests
study customs meticulously and put it on paper. This code is
then promoted and spread to newer areas and territories.
T. Holland
According to Holland, “custom is a generally observed course
of conduct”.
Holland says that custom originated in the conscious choice
by the people of the more convenient of the two acts.
For Holland, customs grow through imitation. In early
political societies the king or the head of the society did not
make laws but administered justice according to the popular
notions of right and wrong, whichever were enshrined in the
course of conduct pursued by people- in general. What was
accepted by the generality of the people and embodied in their
customs was deemed to be right and which was disapproved
by them or not embodied in their customs was deemed to be
wrong.
Types of Customs
There are two broad categories into which customs can be
divided. These are customs without binding obligation and
customs with legally binding obligations.
Customs without binding obligation
These customs are not enforceable by law but are still
prevalent in society and have societal sanctions attached to
them.
For example, every society has some customs about how to
dress, how to address elders or how to conduct marriages etc.
These are not legally binding but can still have powerful
sanctions attached to them. For example, if a person comes to
a funeral wearing colorful clothes, he will be ostracized and
alienated by others around him.
These customs, although not binding, hold tremendous
importance in society and must be followed uniformly for
efficient functioning of society.
Every one of these customs are pursued because of the fear
that non-recognition of such customs may lead them to be
socially outcasted. Such customs are non-authoritative as in
they are not mandatory to pursue. Individuals follow them due
to the social pressure of society. At the point when a custom
of this sort is abused, society typically responds by
demonstrating social dismay or ostracization; however, it has
no sanction in the true sense of the term. Such customs can be
called as ‘Social Customs’.
Customs with binding obligations
In this classification those customs are discussed which in an
objective and stringent sense are viewed as the obligations
and commitments of men. Such customs may direct the
commitment of marriage and the upbringing of children, the
transmission of property etc.
Such customs do not relate to the circle of social conventions,
outward propriety, or style; rather, they are worried about the
genuine business of society, the work that must be practiced
in request to verify and ensure necessary conditions for
community living.
Customs under this category have sanctions which are more
stringent than the previous category. If these customs gain
widespread acceptance, they acquire legal character. On
violation of these customs, adequate penalty is incurred by the
violator as per the statute that governs the custom.
These can be further divided into Legal Customs and
Conventional customs.
Legal Customs
The sanction of a legal custom is certain and absolute. It is
negative in its operation, in the sense that, if the custom is not
followed, certain desired consequences would not take place.
For example, if you do not follow the custom of marriage
properly, that marriage will be considered void and any
children born out of that marriage will be considered
illegitimate.
Legal custom is operative per se regardless of any agreement
of participant parties contrary to the custom. They are
unconditional and absolute in their function and take up the
form of law.
They are obligatory rules of conduct on not based on faith or
convention.
According to Salmond, Legal Customs have legal obligation
or proprio vigor. He divides legal customs further into
General and Local Customs which have been discussed
earlier.
Conventional Customs
According to Salmond, ‘A conventional custom is one whose
authority is conditional on its acceptance and incorporation in
agreement between the parties to be bound by it.’
A conventional custom or usage is a practice which comes
into practice due to it being followed for a long period of time
and arising out of a contract between the parties; it does not
have any legal character. Thus, a usage or conventional
custom is an established norm which is legally
enforceable, not because of any legal authority independently
possessed by it, but because it has been expressly or impliedly
incorporated in a contract between the parties concerned.
Conventional custom may, again, be divided into two types—
General Conventional.
Customs and Local Conventional Customs. General
Conventional Customs are extensively practiced throughout a
particular territory, whereas Local Conventional Customs are
limited to a particular place or to a particular trade or
transaction.
Requisites of a Valid Custom
i i. Reasonability

A custom must be in conformity with basic morality, the

prevailing understanding of justice, health and public policy.
If it is not reasonable in its origin or practice, it cannot be
considered a valid custom. For example, Sati was an accepted
custom once, but with the modern moral understanding, it is
reprehensible, and therefore it cannot be considered a custom
today.
This, however, does not mean that every custom must be
perfect in its morality or ethical concerns, or contain eternal
wisdom, it just needs to be relevant to contemporary times,
useful and capable of being legislated on.
i ii. Conformity with Statute Law

No custom can be in contravention to the existing law of the

land. Any practice, however widespread and accepted, if
found in violation of any statute of a said territory cannot be
considered a custom.
i iii. Certainty

It must be clear and unambiguous as to what the custom is and

how it is practiced. A custom can only hold up in a court of
law when it is not indefinite or uncertain. It needs to be
absolute and objective in theory and in action.
i iv. Consistency

A custom must be consistent with the general principles of

Law which form the basis of every law or statue which exists.
These principles form the basis of ideas like Justice, fairness
and liberty, and every custom must be in consonance with
these.
i v. Antiquity

It is necessary for the custom to have been followed for time

immemorial. The practice must be so ingrained in society, that
legislating it seems like the only natural step. Recent or
modern practices cannot be custom until they become firmly
established in society.
i vi. Continuity
A custom must not be interrupted, or its practice must not be
sparse. It needs to be continuing for time immemorial without
any interruption.
i vii. Must be peaceful in its practice.

Any custom advocating or calling for violence, implicitly or

explicitly, `cannot be considered a custom.
i viii. Must not be opposed to Public Policy.

Whatever the public policy may be of the state the custom is

operating in, must be conformed to.
i ix. Must be General or Universal.

According to Carter, “Custom is effectual only when it is

universal or nearly so. In the absence of unanimity of opinion,
custom becomes powerless, or rather does not exist.”
Theories of Customs
Historical Theory
As indicated by this school, custom contains its own
legitimacy, since it would not exist at all except if some
profound needs of the general population or some local nature
of societal needs offer validity to it.
The development of law does not depend upon the subjective
will of any person. It because of the knowledge of the
communities and civilizations that have existed throughout
history.
Custom is achieved from the common conscience of the
general population. It springs from an innate feeling of right.
Law has its reality in the general will of the people. Savigny
calls it “Volksgeist”.
Analytical Theory
Austin was the main proponent of the Analytical theory. For
him, Customs did not have any legally binding force in
themselves. Their legal character is always subject to the
assent of the Sovereign. For him, customs were merely
reflection of law, and were not ‘real law’. Customs need the
modification and the approval of judges, jurists, or rulers for
them to have any binding force on people. This is in
consonance with his idea that all law is the ‘Will of the
Sovereign”.
Therefore, Customs are an important source of law, which
have their historical roots in the earliest and most primitive of
societies, and still hold relevance. Society is constantly in the
process of establishing newer practices which might in due
time turn into usages or customs.
We depend on customs and are governed by them, knowingly
or not. The English Common law can be interpreted as a
formalization of existing customs, and therein lies the
importance of having the right customs in society.