Jurisprudence CS Executive Notes

Jurisprudence CS Executive Notes – Source of Law (JIGL)

Jurisprudence CS Executive Notes

Source of Law

Jurisprudence CS Executive Notes

What is Law?
In general Laws means written will/intention/want of legislature (governing system). But there is no universal and worldwide accepted definition of Law. Different scholars have defined law in different ways. Various definitions of law can be divided into five broad classes:

  • Natural
  • Positivistic
  • Historical
  • Sociological
  • Realistic

Definitions of Law

Natural School
  • Mainly emphasised on Justice and Equality.
  • Most of the ancient definitions given by Roman and other ancient Jurists falls under this school.
  • The law consists of rules recognised and acted on by the courts of Justice.
  • According to this school
    • To understand law, one should know its purpose.
    • To ascertain the true nature of law, one should go to the courts and not to the legislature.
Ulpine Law is the art or science of what is equitable and good.
Cicero Law is the highest reason implanted in nature.
Justinian’s Digest Law is the standard of what is just and unjust.
Salmond (Prominent modern natural law thinker) Law is the body of principles recognised and applied by the State in the administration of justice.
Vinogradoff Law is a set of rules imposed and enforced by society with regard to the attribution and exercise of power over persons and things.
Ancient Hindu Law is the command of God and not of any political sovereign. Law is a part of “Dharma”.
Positivistic Definition of Law
  • Law is the “command of the sovereign”.
  • The command, duty and sanction are the three elements of law.
  • Law does not attempt to describe what actually occurs but only prescribes certain rules.
Austin Law is the aggregate of rules set by man as politically superior, or sovereign, to men as political subject.
Kelsen
  • Gave a ‘pure theory of law’.
  • Law is a ‘normative science’.
  • All norms derive their power from the ultimate norm called Grund norm.
Historical Definition of Law
  • This theory of law is given by Savigny.
  • Mainly emphasised on Customs.
  • According to him
    • Law is a matter of unconscious and organic growth.
    • Law is found and not made.
    • Law is not universal in its nature.
    • It changes with people and age.
    • Custom not only precedes legislation but it is superior to it.
    • The lawyer or the jurist is more important than the legislator.
Sir Henry Maine

The word ‘law’ has two notions:

  • the notion of order (law is an order which everyone shall follow) and
  • the notion of force (Everyone is forced to obey law).
Sociological Definition of Law
Mainly emphasised on socialism, social control and social welfare
DuguitLaw is essentially and exclusively as social fact.
Ihering

Law is the form of the guarantee of the conditions of life of society, assured by State’s power of constraint.

There are three essentials of this definition.

  • First, law is only one means of social control.
  • Second, law is to serve social purpose.
  • Third, it is coercive (using force or threats) in character.
Roscoe Pound

Law is predominantly an instrument of social engineering

Law is a social institution to satisfy social wants

Realist Definition of Law
  • Mainly emphasised on judicial process/mechanism
  • Law is nothing but a mechanism of regulating the human conduct in society by judicial process
HolmesLaw is a statement of the circumstances in which public force (like police/military) will be brought to bear upon through courts.
CardozoA principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.

Categories of Laws

Mandatory Laws Laws which call for affirmative act (like tax laws which require payment of taxes)
Prohibitive Laws Laws which require negative conduct or which prohibit some actions (like Indian Penal Code which prohibit some acts/actions)
Permissive Laws Laws which neither require nor forbid actions, but allows certain conduct on the part of an individual if he desires to act (like contracts, self – defence, right to carry on trade).
Note:
  • Law is not static. It changes with the change in society.
  • Law is expected to provide socio-economic justice and remove the existing imbalances in the socio-economic structure.

Source of Indian Law

Source of Law in India
Source of Law in India

Customs or Customary Laws

What are Customary Laws
What are Customary Laws

Customs or Customary Laws

  • When the same thing was done again and again in a particular way, it became custom.
  • Custom is the most ancient of all the sources of law.
  • Most of the law given in Smritis and the Commentaries had its origin in customs. The Smritis have strongly recommended that the customs should be followed and recognised.
  • In Hindu Laws, Custom plays important role.
  • In Mohammedan Law, Customs has inferior place. But Customs which were not expressly disapproved by the Prophet were good laws.

Conventional Customs

  • Conventions means way in which something is usually done.
  • Binding due to an agreement between the parties, and not due to any legal authority.
  • Convention cannot alter the general law of the land.

Legal Customs

  • Operate as a binding rule of law
  • Recognised and enforced by the courts
  • Become part of the law of land

Local Custom

  • Prevails in some definite locality and constitutes a source of law for that place only.

Positive Morality

  • Positive morality is the set of opinions, customs, and prejudices the rule in a particular society.

Requisites of a Valid Custom

  1. Immemorial: Antiquity, Ancient.
  2. Certainty: Definite and must not be vague and ambiguous.
  3. Reasonableness: Must be reasonable, useful and convenient to the society; shall not be opposed to the principles of justice, equity and good conscience.
  4. Compulsory Observance: Continuously observed without any interruption; obligatory or binding rule of conduct.
  5. Conformity with Law and Public Morality: Must not be opposed to morality or public policy nor must it conflict with law.
  6. Unanimity of Opinion: Must be general or universal. If practice is left to individual choice, it cannot be termed as custom.
  7. Peaceable Enjoyment: Enjoyed peaceably without any dispute in a law court
  8. Consistency: Must not conflict with the other established customs.

Judicial Decision or Precedents

  • Precedent means some set pattern guiding the future conduct.
  • In the judicial field, it means the guidance or authority of past decisions of the courts for future cases.
  • Only such decisions which lay down some new rule or principle are called judicial precedents.
  • The principles of law expressed for the first time in court decisions become precedents to be followed as law in deciding problems and cases identical with them in future because judicial decision is presumed to be correct.

General Principles of Doctrine of Precedents

  • Courts are bound by their own decisions
  • Lower Courts are absolutely bound by the decisions of the Higher Courts

High Court

  • High Court is the apex court at State Level.
  • In a High Court,
    • a single judge constitutes the smallest Bench.
    • a Bench of two judges is known as Division Bench.
    • Three or more judges constitute a Full Bench.

Decisions of High Court on other Courts

  • On subordinate courts and tribunals within its jurisdiction: Absolute binding
  • On courts and tribunals outside its jurisdiction: Persuasive value only
  • On another High Court: Not Binding (Only Persuasive value)
  • On Supreme Court: Not Binding

Decision of one Bench of High Court on another Bench

  • A decision of full Bench is binding on a Smaller Bench.
  • Decision of a Division Bench (even if wrong) is binding on a single judge of the same High Court.
  • In case of any conflict between the two decisions of co-equal Benches, generally the later decision is to be followed.

Supreme Court

  • Supreme Court is Highest (Apex) Court in India
  • Supreme Court is not bound to follow the decision of any other court.

Decisions of Supreme Court on other Courts

  • According to Article 141 of the Constitution, law declared by the Supreme Court shall be binding on all courts (including High Courts) within the territory of India.
  • Supreme Court is free to change it decision, if the earlier decision is found erroneous and is thus detrimental to the general welfare of the public.

Kinds of Precedents

Kind of Precedents
Kind of Precedents

Original Precedents
An original precedent is one which creates and applies a new rule of law. In the case of an original precedent, it is law for the future because it is now applied.

Declaratory Precedents
A declaratory precedent is one which is merely the application of an already existing rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law.

Persuasive Precedents
A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law.

Absolutely Authoritative Precedents
An authoritative precedent is one which judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it.

Conditionally Authoritative Precedents
A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances.

Doctrine of Stare Decisis

The doctrine of stare decisis means “adhere to the decision and do not unsettle things which are established”.

It is a useful doctrine intended to bring about certainty and uniformity in the law.

Under the stare decisis doctrine,

  • a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases.
  • the principle means that like cases should be decided alike.

The doctrine should not be regarded as a rigid and inevitable doctrine. It must not be applied at the cost of justice.

Ratio Decidendi

Ratio Decidendi means

  • the rule of law on which a judicial decision is based.
  • the reason or the rationale for the decision

The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi.

The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi.

Prof. Goodhart says that “ratio decidendi is nothing more than the decision based on the material facts of the case.”

Where an issue requires to be answered on principles, the principles which are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements is known as ratio decidendi and such principle is not only applicable to that case but to other cases also which are of similar nature.

It is the ratio decidendi or the general principle which has the binding effect as a precedent, and not the obiter dictum. However, the determination or separation of ratio decidendi from obiter dictum is not so easy. It is for the judge to determine the ratio decidendi and to apply it on the case to be decided.

Obiter Dicta

The literal meaning of this Latin expression is “said by the way”.

It is a judge’s expression of opinion uttered in court or in a written judgement, but not essential to the decision and therefore not legally binding as a precedent.

If in an authoritative precedent, some expressions are not required in a particular case, such expressions are of only persuasive nature. The judges are not bound to follow them although they can take advantage of them. They sometimes help the cause of the reform of law.

Justice, Equity and Good Conscience (Concept was introduced by Impey’s Regulations of 1781)

Justice, equity and good conscience mean rules of English law on an analogous (comparable) matter as modified to suit the Indian conditions and circumstances.

In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply concept of “justice, equity and good conscience”.

Note:

  • Elijah Impey was a British judge
  • Conscience means a person’s moral sense of right and wrong

Sources of English Law

The chief sources of English law are:

  • Common Law (Evolved from Judicial Decisions)
  • Law Merchant (Evolved from customs among the Merchants)
  • Principle of Equity (Law of common sense and natural justice)
  • Statute Law (Law created by Legislature)

1. Common Law

  • Principles of law evolved by the judges in making decisions
  • Common Law denotes that body of legal rules, the primary sources of which were the general immemorial customs, judicial decisions and text books on Jurisprudence.
  • Common Law is unwritten law of England which is common to the whole of the realm.

2. Law Merchant

  • Law Merchant means those customs and usages which are binding on traders in their dealings with each other.
  • The Law Merchant is the most important source of the Merchantile Law.

3. Principle of Equity

  • Equity is a body of rules, the primary source of which was imperative dictates of conscience (common sense and natural justice)
  • Law of Equity had been set forth and developed in the Courts of Chancery (also known as Court of Equity).

Reason behind Principle of Equity

    • In some cases, there was no remedy or inadequate remedy at Common Law.
    • In such cases, decisions could be taken only on the basis of common sense, natural justice and good conscience.

Some common maxims related to Equity

    1. “He who seeks equity must do equity”,
    2. “He who comes to equity must come with clean hands”.

Some of the important principles and remedies developed by Equity Courts

    • Right of beneficiary to trust property,
    • Remedy of specific performance of contracts,
    • Equity of redemption in case of mortgages.

4. Statute Law

  • Statutes are written law derived from the legislation or enactment of Parliament or the subordinate and delegated legislative bodies.

Statutes overrides unwritten law, i.e., both Common Law and Equity.

Mercantile Law

  • Mercantile Law is related to the commercial activities of the people of the society.
  • It is that branch of law which is applicable to or concerned with trade and commerce in connection with various mercantile or business transactions.

Mercantile Law in England
The Mercantile Law or Law Merchant or Lex Mercatorla is the name given to that part of law which grew up from the customs and usages of merchants or traders in England.

Mercantile Laws in India

  • In India, Law related to Mercantile Transactions (sale/purchase of goods and services) was first came into existence in 1872, when Indian Contract Act, 1872 was enacted.
  • Prior to 1872, Mercantile Transactions were regulated by customs and personal laws (like Hindu Laws, Mohammedan Law etc.)

Source of Mercantile Laws in India

  • English Mercantile Law
    • In India, while creating Mercantile Laws, provisions of English Mercantile Law were adopted (with modifications as required).
    • Even now, in the absence of provisions relating to any matter in the Indian Law, English Laws are referred.
  • Acts enacted by Indian Legislature
    In India following main Acts Mercantile Acts are enacted:
    • The Indian Contract Act, 1872,
    • The Negotiable Instruments Act, 1881
    • The Sale of Goods Act, 1930,
    • The Indian Partnership Act, 1932,
    • The Arbitration and Conciliation Act, 1996,
    • The Insurance Act, 1938,
    • The Carriers Act, 1865
  • Judicial Decisions
      • Where legal provisions are not clear, we have to refer the decisions of various courts and tribunals.
      • In India Supreme Court is apex court. Rulings of Supreme Court are applicable all over India.
      • Rulings of High Court are applicable only in the state which comes in the jurisdiction of concerned High Court. It means decision of one High Court is not binding on High Courts/Courts of other States.
    • Customs and Trade Usages
      • In certain cases, where law is silent, Customs and Trade Usages prevails.
      • Even various laws (like Contract Act, Partnership Act, Negotiable Act) make specific provisions to the effect that the rules of law laid down in a particular Act are subject to any special custom or usages of trade.

Note:
Whole law relating to Hundis and the Kachhi and Pakki Adat Systems of Agency is based on custom and usage of trade as recognised and given legal effect to by courts of law in India.

Legal Terminology and Maxims

ab initioFrom the beginning
ad hocNot intended to be able to be adapted to other purposes.
ad idemTo the same thing.
ad infinitumTo infinity.
ad valoremAccording to value.
alter egoA second identity living within a person.
amicus curiaeFriend of the court
audi alteram partemHear the other side.
bona fideIn good faith.
de factoIn fact.
de jureIn law.
de novoA new.
DehorsOutside of.
ex gratiaAs a matter of grace or favour.
ex officioBy virtue of an office.
ex parteExpression used to signify something done or said by one person not in the presence of his opponent.
fait accompliAn accomplished act.
ictus reusGuilty act.
in personamAgainst the person.
in remAn act/proceeding done or directed with reference to no specific person or with reference to all whom it might concern.
inter aliaAmongst other things.
inter vivosBetween living persons.
IntestateA person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition (“will”) capable of taking effect.
intra viresWithin the powers.
ipso factoBy the mere fact.
ipso jureBy the law itself.
lis pendensA pending suit.
locus standiSignifies a right to be heard.
mens reaA guilty mind.
mesne profitsIntermediate profits, the profits which a person in wrongful possession of the property actually received or might with ordinary diligence have received therefrom together with interest on such profits excluding the profits due to improvement made by the person in wrongful possession.
modus operandiMode of operating; the way in which a thing, cause etc. operates.
mutatis mutandisWith the necessary changes in points of detail, with such change as may be necessary.
obiter dictumAn opinion of law not necessary to the decision. An expression of opinion (formed) by a judge on a question immaterial to the ratio decidendi, and unnecessary for the decision of the particular case. It is no way binding on any court, but may receive attention as being an opinion of high authority.
pendente liteDuring litigation
quid pro quoThe giving of one thing of value for another thing of value; one for the other; thing given as compensation.
ratio decidendiReasons for deciding, the grounds of decision.
res integraAn untouched matter; a point without a precedent; a case of novel impression.
res judicataA case or suit already decided.
rule nisiA rule to show cause why a party should not do a certain act, or why the object of the rule should not be enforced.
sine dieWithout day.
sine qua nonAn indispensable requisite.
stare decisisTo stand by things decided; to abide by precedents where the same points come again in litigation.
status quoExisting condition.
sub judiceBefore a judge or court, pending decision of a competent count.
ultra viresBeyond one’s powers.

Understanding Case Citation

How to read the name of a Case
How to read the name of a Case

Case Name
There are typically two names for a case. Usually, in civil cases

  • the first name is of Plaintiff (who is bringing the court action) and
  • the second name is of defendant (the person against whom action is being brought).

In a criminal law case

  • Plaintiff is always state (government)
  • Defendant is a person (e.g., Neetu).

It should be noted that the “defendant” may not always stay the same. In the Furman v. Georgia case, Furman was originally the defendant in a murder case being prosecuted in Georgia. However, Furman appealed his conviction and in doing so he became the person taking action against the state.

Year
This is the year in which the decision was delivered by the court. It may not be (and in appellate cases, probably isn’t) the year in which the case was heard.

Name of Reporter
A ‘reporter’ is a multi-volume publication where court decisions are found.

The full name and abbreviations of few reporters are:

Full NameOfficial AbbreviationType of Case Reported
All India ReportsAIRImportant decision from Supreme Court and High Courts.
Supreme Court CasesSCCIndian Supreme Court
Company Law JournalCLJImportant decisions relating to company law matters.
Income Tax ReportITRImportant decisions relating to income tax matters.
Labour ReportsLRImportant decisions relating to Labour law matters.

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