What is law?
The word law
is derived from a Teutonic word Lag
which means definite
this basis it can be defined as defined rules and regulations which are need to
be followed by the beings. Law is important in various parts in the lives of
people and the system. A single word cannot suffice the characters of law. The
law can be understood in relation to something or in an analogy. For example-
law and temple, it can be said that both are built up so that one can attain
peace and harmony in place. Law and love, both are inexpressible in nature that
is they both cannot be explained in a word, but both of these affects the human
A relationship can be drawn among law and ocean. Both law and ocean are
immense and as a drop adds to the amount of water in the sea, similarly every
judgment adds itself to numerous points of reference. Likewise, there is no
existence without water, there is no existence without law.
Law helps in maintaining proper order in the society and prevents the happening
of chaos in the system. The law not only provides rules and regulations which
are need to be followed by the individual living in the society, but it also
provides rights to its citizens, which can be enforced by the citizens without
any exception or restrictions.
The rights of the citizens are given utmost
preference by the law of any democratic country. While law provides the rights
to be enforceable by the people associated with it, it also imposes some duties
on its people which are to be followed by them without any excuse and exception
(apart from those explicitly provided by the law). Apart from duties, law also
provides sanctions and restrictions, that what people are not supposed to do.
There is no complete or perfect definition for the word law in the current
scenario, because of its universal and dynamic nature, it is applicable to each
and every thing in the universe and it keeps on changing according to the needs
of the people and the system which governs them.
Still various authors and jurists tried to give definition of law in the most
acceptable manner they can, given below are some of these definitions according
Sir John William Salmond
- Law may be defined as the body of principles
recognized and applied by the state in the administration of justice. All in
all, law comprises of rules perceived and followed up on by the Courts of
Oliver Wendell Holmes
- The prophecies of what the courts will do in fact,
and nothing more pretentious.
Law is the aggregate set of rules set by a man as politically
superior, or sovereign to men, as political subjects. Hence, this definition
characterizes law as a bunch of rules to be trailed by everybody, paying little
mind to their position.
As an embodiment of reasons whether in individual or the community.
Of all the definitions, Salmond's definition is considered the most apt
definition. Still there is no complete and perfect definition of law.
Article 13 (3) of the Indian Constitution also defines law, it states- In this
article, unless the context otherwise requires law includes any Ordinance,
order, bye law, rule, regulation, notification, custom or usages having in the
territory of India the force of law; laws in force includes laws passed or made
by Legislature or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed, notwithstanding
that any such law or any part thereof may not be then in operation either at all
or in particular areas.
Sources of Law
Each country's judicial structure has its own origin of laws, with some higher
preference to on source than the others. According to the categories of the
countries, they rely more on a particular source and give more preference to
that source of law. Given below are some of the major or the primary sources of
The term 'Legislation' originates from the Latin words 'Legis' which means
guidelines or rules and 'latum' which means making. So, legislation can be said
as a process of making of law, it is made by the parliament of any state or
country and is binding on all. The legislation is considered an essential source
of law in India, legislation has a wide ambit and it is utilized to manage,
approve, to empower, to give grants, to endorse, to authorize, award, proclaim,
or to limit. The governing body is outlined by the parliament as new acts, new
laws, cancelation, and revision of old laws. The making process for this is in
the constitution of India.
According to Salmond: Legislation is that source of law which consists in the
declaration of legal rules by a competent authority. It is such an enunciation
or promulgation of principles as confers upon them the force of law. It is such
a declaration of principles as constitutes, legal ground for their recognition
as law: for the future by the tribunals of the state.
- Legislation as a source of law is broadly classified in three types:
- Supreme legislation:
The Supreme legislation is the legislation embraced by the sovereign force
of the state. As such, some different parts which are the organ of the state
can't handle or check it. It is viewed as exceptional just as legally
ground-breaking. There is no real limitation on its purview. Indian
parliament is similarly transcendent. Despite the fact that there are
distinctive established revisions upon its purview, it isn't dependent upon
some other personnel inside the state. Along these lines, the sovereign
locale of the state can't be disavowed, dropped, or compelled by some other
legitimate organ of the state.
- Subordinate legislation:
Subordinate legislation is a legislation by
some other authority than the Supreme expert in the state. It is made under the
forces assigned by the Supreme power. Such legislation owes its existence,
authenticity, and continuation to the supreme master. It very well may be
dropped and revoked whenever by the intensity of the sovereign position and in
this way, it should offer a way to deal with sovereign legislation. Subordinate
legislation is obligated to parliamentary control. Sub categories or example of
subordinate legislations can be- Colonial Legislation, Executive Legislation,
Judicial Legislation, Municipal Legislation, Autonomous Legislation.
- Delegated legislation:
'Delegation' can be defined as a demonstration of
entrusting an individual with the force or enabling him to follow up for that
individual who has given him that power or to go about as his representative or
delegate. 'Delegated legislation' signifies the practicing of administrative
force by a specialist who is lower in position to the Legislature, or who is
subordinate to the Legislature. 'Delegated legislation', moreover insinuated as
helper legislation, is a sanctioning made by an individual or body other than
Parliament, through an Act of Parliament, can permit another person
or someone to make sanctioning. An Act of Parliament makes the arrangement of a
particular or specific law and will in general contain a diagram of the
motivation behind the Act. By assigning the legislation by Parliament to the
Executive or any subordinate, it enables various individuals or bodies to
incorporate more subtleties to an Act of Parliament.
Parliament thusly, through
basic authorization (for instance an Act of Parliament), licenses others to make
laws and rules through delegated legislation. The sanctioning made by an
approved individual should be made according to the explanation set down in the
Act of Parliament.
Customs are basically those non-codified guidelines that have procured official
or compulsory character. In antiquated social orders, the customs were
considered as quite possibly the main sources of law; indeed, it was considered
as the genuine source of law. With the progression of time and the approach of
current human advancement, the significance of custom as a source of law
decreased and different sources, for example, legislations and judicial
precedents came into being.
A custom, to be legitimate, should be followed
persistently for an exceptionally lengthy timespan with no interference.
Further, a particular practice should be upheld for quite a while, yet it should
likewise be upheld by the assessment of the overall population and ethical
quality. Notwithstanding, every custom need not become law. For instance, the
Hindu Marriages Act, 1955 disallows relationships that are inside the
precluded levels of relationship. Be that as it may, the Act actually allows
relationships inside the disallowed level of a relationship if there is a
demonstrated custom inside a specific social group.
Custom defined in the Case of Tanistry: It is a jus non sciptum and made by
the people in respect of the place where the custom obtains. For where the
people find any act to be good and beneficial and apt and agreeable to their
nature and disposition, they use and practice it from time to time, and it is by
frequent iteration and multiplication of this act that the custom is made and
being used from time to which memory runneth not to the contrary obtains the
force of law.
- Judicial Precedents
Another source of law is the court itself. Any higher court in this country
giving a valid judgement in its jurisdiction, sets as a rules or guidelines for
all those courts which are subordinate to it. According to this statement, if
the apex court that is the Supreme Court of in India gives a judgement on a
particular case then it will become the rule of law, and norms for all the other
court subordinate to it in India.
This notion is called as judicial precedent
which is also a source of law. Judicial Precedents lays on the doctrine of
'stare decisis' which is also mentioned in Article 141 of the constitution,
Law declared by Supreme Court to be binding on all courts. The law declared by
the Supreme Court shall be binding on all courts within the territory of
India for example, if the Supreme court settles on a specific case and a
comparative circumstance goes to the lower court, the lower court will treat the
case the same and pass the judgment same as done by the Supreme court.
on the grounds that the Supreme court has started a trend for the lower court
and the lower court will undoubtedly follow it. A judicial precedent can just
make new law yet can't change a current one. They become possibly the most
important factor just when there are loopholes in the current law. Its capacity
is to fill the loopholes with new law. Where there is a settled guideline of
law, the adjudicators will undoubtedly follow it.
- Other sources
The Indian constitution lays down the various rules and laws, rights and duties
which are available to the people associated with it. The constitution when
drafted was a contribution of various other countries also. The Indian
constitution framers picked up appropriate elements of constitution of various
other countries and added it to the Indian constitution.
constitution of other countries is also a source of law in India. For example-
the concept single citizenship, rule of law was taken from the constitution of
Some other sources also include, treaties, conventions, online and offline
sources, legal opinions, religion etc. These are all the secondary sources of
Legislation: A comparative Analysis
As discussed above in the study the various sources of law, each source is
different and important in one or the other way. There is no one source which
can be considered superior among the many sources of law. Each one of the
sources have their advantages and disadvantages.
As the study focuses on the comparative analysis of legislation as a source of
law, therefore, some of the advantages of legislation as a source of law are
Irrefutably, the legislation has reliably been seen as a huge source of law as
differentiated and various sources. There are two clear clarifications behind
the legislation is seen as an exception among the main wellsprings of law. First
thing, it incorporates setting down genuine standards by the law-making bodies
which the State sees as law.
Furthermore, it has the force and authority of the State. It is henceforth said
by Dias and Hughes that cognizant law-creation by an authentic force, for
example, the State is called 'legislation' which gave that sovereign is
effectively seen as the incomparable force by the courts.
Comparison between Legislation and Precedents as a source of law:
- Repudiating power of legislation:
It is its abrogative force and altering
characteristic that gives legislation prevalence over precedents. legislation in
both constitutive and abrogative while precedent simply has constitutive
adequacy. The legislation isn't just a wellspring of law. Precedent, then again,
can't repeal the current principle of law in spite of the fact that it might
deliver better law and in some regard in a way that is better than legislation.
What it does, it does for the first and last time. It can't backtrack its
Legislation permits a profitable division of work by
separating the two elements of making law and managing it. This outcome in
expanded effectiveness. Precedence, unexpectedly, clubs both the work that is
making and implementing of law.
Justice states that law should be known before it is
applied and upheld by the law courts, however the case law worked reflectively,
being applied to realities that are earlier in date to the law itself. statute
law only occasionally reviews in its activity. At that point, legislation
withstands the trial of a translation of the resolution by the official
courtrooms. In the event that any modifications are proposed in the ordered law,
they are distributed and assessments welcomed. Case law, despite what might be
expected, is made and pronounced at very much the same time.
- Structure or form:
Statue law is incredibly better than case law in the
purpose of the structure. Statute law is positive, brief, clear, and effectively
justifiable. In Precedence, to know standards and rules one should investigate
the subtleties of the case. As Salmond notices, case-law is gold in mine – a
couple of grams of valuable metal to the huge load of futile material – while
rule law is the coin of the domain, prepared for guaranteed use.
- Clearness and Accessibility:
A statute is communicated in theoretical
terms as a progression of general principles. It is, accordingly, clear and
compact and might be perceived by the layman. A law settled on by legal choices,
then again, exists no place in a general and conceptual structure. In
precedence, rules and standards are set somewhere near the inductive strategy.
In legislation, the deductive strategy is turned to. The courts take the
standard from the resolution and apply it to a specific case.
Judiciary law will undoubtedly be deficient with regards to
incoherency and fulfilment since it is limited to the specific case just at
without fail. Through legislation, then again, the law fits precise treatment.
This is no mean bit of leeway to legislation over case-law.
Comparison between legislation and custom as a source of law:
Legislation has a de-jury authority, for example, it has a
legitimate presence, on the other hand, the customs are true for example they
are the matter of realities, they are de-facto. The presence of legislation
relies on the communicated authority given by the state, yet the presence of
customs relies on the inferred authority of the state and the communicated will
of the individuals.
Custom as a source of law was widely accepted in the system
during the primitive age, but in the current scenario, the legislation is given
more recognition in the system as a verifiable and codified source of law. The
legislation is a central trademark for a present-day society while the customary
law was made in an unrefined social request.
Legislation as a source is surely a durable nature of law,
as differentiated to the custom which is the most settled kind of law and is
trailed by a specific faction.
The legislation is done, definite, written in the
structure, and adequately open. Be that as it may, the custom is by and large
unwritten am non-scripted, and is difficult to follow.
- Details and deliberations:
Legislations results out of the thoughts while
custom creates inside the overall population in the customary course. Therefore
legislations may have more accuracy as compared to the customs, as a particular
practice that may be followed by a group may not have a universal acceptance
with the other sections, while legislations are deliberated and discussed, and
then given acceptability.
As mentioned earlier in the study that no source of law is complete and
perfect in itself, the same goes for legislation for the following reasons:
- Unyielding nature:
Law in the legislation is rigid however the law in the
precedence is flexible and versatile.
- Taking into account Hypothesis:
Legislation, generally, proceeds on
theoretical assurances, by thinking about the current climate and encompassing
in which the setup law is oftentimes seen to be flawed in its application to the
issues arising in practical life however piece-scratches create out of the
realistic exigencies and accommodation.
- An extreme measure of Importance to the Wordings:
Legislation adds a
great deal of essentialness to its phrasings. Hence, if the enunciation is
flawed, the law in itself gets adequately turned. In the precedence, the
phrasing matters near nothing as there is a certified presentation that performs
separate tests of the material-ness of precedence as a wellspring of law. The
equivalent goes for the customary law too.
It can be said that legislation being an important source of law means laying
down or enacting laws in codified forms by the sovereigns or any other authority
to whom it delegates its authority.
It is generally rigid in nature as any changes to it can be made only after
enacting a new law on the same subject or by amending it through a proper
procedure. It is also based on the idea that sufficient laws shall be made by
the proper authority before happening of any incident on this behalf so as to
protect the rights of the people beforehand.
Legislation as a source of law is sometimes claimed to be superior to other
sources of law but it is controversial and entirely depends on the definitions
and understandings of the jurists.
The study includes the meaning of the law, its definition by various authors
which are widely accepted in the current scenario, since there is no particular
definition of law, Salmond's definition of law is considered the aptest
definition of law. Since the law is involved in everyday actions and activities
of the people and is directly engaged with the people's life. It is important to
understand the various sources through which a particular law is enacted, so as
to get a proper essence of the law enacted.
Further, the study discussed the various sources of law, which are broadly
divided in primary and secondary sources. The major or the primary sources are
legislations, judicial precedents, and customs. The meaning and definitions of
each source were discussed and on doing a comparative analysis on the same the
legislation as a source of law had some advantages over the other sources of
law, but it also had its own disadvantages.
On doing the analysis it can be said and also it is a well-established fact that
no source of law is complete or apt in itself, each one of the sources has its
own importance, the essence or importance of which can vary from time to time,
as the needs and requirements of the people in the society changes.
- J.W Salmond, Law of Tort, 11 (18th edition, 1907).
- Holmes O. W, Common Law (Stuart E. Thiel, January 2000).
- Indian Const. art. 13, cl. 3.
- Sir John Salmond, Jurisprudence, 171 (6th ed. 1920).
- 30 ER 516.
- Indian Const