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Modern Sources Of Law

Introduction To Law And Its Sources

Today, the law governs every aspect of our lives and has become paramount for survival and the control of unethical conduct in society; thus, it is critical to understand the 'Law of the Land.' To identify the Law, it is critical to understand its origins, which means "the roots of the law".

There are various sources of law, ranging from ancient sources dating back to religious texts and Codes that helped give the proper institution of law a foundation to modern sources such as treaties and legislation that shape the law we now recognize.

Modern Sources of Law

Customs

"Custom is the embodiment of those concepts which have counselled themselves to the countrywide judgment of right and wrong as the ideas of justice and public utility".1

Customs are the oldest law and most important sources of legislation in a country like India. Basically, when individuals follow a tradition or practice for a long time on a regular basis, that tradition becomes a custom.

Ingredients of Customs:

  • Antiquity and Continuous - Recent and modern customs are not valid.it must be running from a long time that "the memory of man runneth not to contrary ".
  • Peaceful - It have to have been observed as a right. It must have been followed without the need for resorting to force
  • Certainty - A custom must be definite, and the court must be convinced with clear and unmistakable proof of the existence of the custom.
  • Consistency- it must be consistent with one another in order to function as a "source of law".
  • Reasonability - it's power cannot be absolute, and it must be fair.

Judicial Precedents

"If courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy."2

Every future decision is influenced by the court's interpretation. The idea of 'stare decisis' underpins judicial precedents. The notion means sticking to and relying on previous judicial rulings. This doctrine is based on public policy. This inspires public trust, and the administration of justice becomes crystal apparent.

According to the precedent doctrine, the Supreme Court's decision is binding on all lower courts save itself. The lower bench's rulings can always be reversed by the higher bench if enough explanation is shown. For example, A 6-judge bench of the Supreme Court held in Golaknath v. State of Punjab3 that Fundamental Rights are not amendable. A 13-judge court later reversed the Golaknath case in Keshvanand Bharti v. the State of Kerala4. The judgement of the HC is binding on all courts in that state. In terms of precedent, the higher court is also bound by its own general ruling.

Legislation

"Legislation implies the formal expression of the administrative organs of the general public."5

Legislation has a wide range of applications and is used to regulate, allow, enable or limit. The legislation is framed by parliamentary acts such as Acts, new laws, and amendments and repeals to existing laws. The Constitution specifies the process through which the parliament draughts laws. For example, The special marriage act, 1954

Following codification, each point addressed by the codified law is definitive. Unless an express saving is provided for in the legislation, the enactment supersedes all earlier law, whether based on tradition or otherwise. The ancient textual law provides provisions for applicability in situations not expressly addressed by the codified law.

Principles Of Equity, Justice And Good Conscience

"The basic ideas, norms, and standards of fairness serve as the foundation for the Courts' rulings."6

This principle means "according to the justness, fairness, or excellent conciseness," and it is utilized in situations where the law is either insufficient, outdated, or unfair. To deal with the situations and ensure that the law transmits justice, equity, and excellent conciseness, The judges utilize their common sense and follow the notion.

Our judicial system is heavily reliant on impartiality. Only through equity and moral conscience can true justice be achieved. Occasionally, a disagreement may arise before a Court that cannot be resolved by applying any existing rule in any of the accessible sources. In the absence of law, the courts have no choice but to settle the matter, the apply Principle of equity, justice and good conscience.

Impact Of Modern Sources On Hindu Law: An Analysis

Customs

Customs are the substratum upon which Hindu law is built. They molded Hindu laws, and courts continue to appreciate long-standing Hindu practices to this day. For example, the Supreme Court rejected a novel method of executing Hindu marriages in Tamil Nadu that did away with ceremonies and priests on the grounds that new traditions cannot be established.7

Principle Of Justice Equity And Good Consciousness:

This concept had a significant impact on the evolution of personal laws. In instances when there was no suitable law to address the conflicts and no existing law, Judges rendered decisions based on the concepts of Justice, Equity, and Good Consciousness.

Legislations

The parliament approved many Acts, including the Child Marriage Restraint Act of 1929, the Hindu Succession Act of 1956, the Hindu Marriage Act of 1955, and the Hindu Minority and Guardianship Act of 1956. Which rationally codified and strengthened Hindu law.8

Precedents
For the sake of judicial interpretation, doctrines, principles, and rules of law have been changed or whole new ideas, doctrines, and rules have been added into the corpus of Hindu law. Almost all of the essential concepts and norms of Hindu law are now codified in case law. It is not required to consult the source in such cases and sufficient to refer to a leading decision.

Conclusion
Modern Sources of law lays down the much-needed framework required to present the law that is much needed for proper administration. The inefficacy and ambiguity of law has been gotten rid of because of these sources. As they continue to pave the way for society towards morality.

Foot-Notes:
  1. David J. Bederman, Custom as a source of law, Custom as a Source of Law xv-xvi.
  2. S. Sivakumar, Judgment Or Judicial Opinion: How To Read And Analyses, Accessed August 26, 2021. http://www.jstor.org/stable/45163393
  3. Golaknath v. State of Punjab, 1967 AIR 1643; 1967 SCR (2) 762
  4. Keshvanand Bharti v. the State of Kerala, (1973) 4 SCC 225; AIR 1973 SC 1461
  5. India - legislation and the judicial system, Foreign Law Guide.
  6. JE Penner, Equity, justice, and conscience, Philosophical Foundations of the Law of Equity 5271 (2020).
  7. Easwari vs Parvathi & Ors ,1948 Civil Appeal No.1103 OF 2004
  8. Werner Menski, Hindu law in modern times, The Oxford History of Hinduism: Modern Hinduism 244260 (2019).

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