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UNIT - I

GENERAL

DEFINITION OF JURISPRUDENCE

The English word "Jurisprudence" has been taken from a Latin word "Jurisprudentia", which consists of two

words, 'Juris' and 'prudentia'. 'Juris' means law and 'Prudentia' means knowledge. Jurisprudence,

therefore, literally means knowledge of law and its application.

It is difficult to give a singular definition of the term. Since the growth and development of law in different

countries has been under different social and political conditions, the different jurists have given different

definitions according to their own notion of the subject-matter and so it is not possible to give a universal and

uniform definition of Jurisprudence. So the different jurists have defined this term in different ways-

Ulpian: According to Ulpian "Jurisprudence is the knowledge of things human and divine, the science of the

just and unjust". The definition given by Ulpian is wide and broad enough because it includes the term

'Dharma' under Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy.

Criticism: The above definition is wide and broad enough because it includes the term 'Dharma' under

Hindu Jurisprudence. It also covers the province of religion, ethics and philosophy. The modern

jurisprudence does not study the spiritual salvation. It is now-a-days confined only to what Hindu jurists

described as 'Vyavahara' which means those rules that determines the judicial proceedings or

controversies.

Prof. Gray: According to Prof. Gray "Jurisprudence is the science of law, the statement and systematic

arrangement of the rules followed by the courts and the principles involved in those rules." Prof. Gray is of

the opinion that jurisprudence deals with that kind of law which consists of rules enforced by courts while

administering justice. In other words, the laws of the jurists deal with man and seek to regulate external

human conduct in the society. It does not concern itself with the inner beliefs of man imposed in religious

laws, which derive their authority from superhuman source which we call 'God'. The sanction for their

enforcement is spiritual reward or curse according to man's deeds.

Holland: According to Holland "Jurisprudence is the formal science of positive law." It is wrongly applied to

actual systems of law, or to current views of laws, or to suggestions for its amendment, but is the name of a

science. The science is a formal, or analytical, rather than a material one. It is the science of actual or

positive law. The essential ingredients of his definition of jurisprudence are as under-

1. Formal

2. Science

3. Positive Law.

Holland's definition of jurisprudence has been criticized by various jurists like Gray Dr. Jenks and Prof.

Platt.

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According to Gray "Jurisprudence is, in truth, no more a formal science than physiology, so the acts and

forbearances of men and the events which happen to them are the subject-matter of jurisprudence and

physiology could as well dispense with the former as jurisprudence with the latter."

Salmond: Salmond has defined jurisprudence in two different senses-

1. In Wider (Generic) Sense: According to Salmond, "Jurisprudence in wider sense means the

science of civil law." Salmond says that in a generic and primary sense jurisprudence includes the entire

body of legal doctrine. Since jurisprudence is the knowledge of law, from this point of view it includes the

entire book of laws.

2. Narrow (Specific) Sense: Salmond distinguishes jurisprudence in its generic sense, as including

the entire body of legal doctrine, from jurisprudence in a more specific sense, in which it means a

particular department of such doctrine exclusively. He says that in its limited significance it may be

called theoretical or general jurisprudence to distinguish it from the more practical and special

departments of legal study. In this sense "Jurisprudence is the science of the first principles of civil law."

The words which are used by Salmond in his definitions may be explained as under-

1. Law: According to Salmond, "Law is the body of principles recognised and applied by the state in

the administration of justice."

2. Civil Law: The term 'civil law' is derived from the Latin word "Civitas" which means State. Thus, civil

law means law made by state. It means the law of the land as opposed to other bodies of rules to which

the name of law has been extended by analogy.

3. Science: According to Salmond, if we use the term science in its widest permissible sense, as

including the systematized knowledge of any subject of intellectual inquiry, jurisprudence may be

defined as the science of civil law. It is a science as distinguished from arts and indicates in its widest

sense all those subjects which directly or indirectly treat of the science of law. Salmond says that as the

'science of law' there may be three kinds of jurisprudence-

a. Expository or systematic jurisprudence, which deals with the contents of an actual legal system, as

existing at any time whether past or present.

b. Legal history, which is concerned with the legal system in its process of historical development.

c. The science of legislation, the purpose of which is to set forth law as it ought to be. It deals with the

ideal future of the legal system and the purpose which it may serve.

Austin: According to Austin "Jurisprudence is the Philosophy of Positive Law." He was the first jurist to

make jurisprudence as a science. By the term "Positive Law" he means 'jus positivum', that is law laid down

by a political superior for commanding obedience from his subjects.

Austin divides jurisprudence into two parts, namely-

(i) General jurisprudence; and

(ii) Particular jurisprudence.

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By "General jurisprudence", he meant 'the science concerned with exposition of the principles of nations

and distinctions which are common to all the systems of law' whereas Particular Jurisprudence consisted of

the science of any such system of positive law as now obtains or once actually obtained in specifically

determined nation.

Allen: According to Dr. Allen "Jurisprudence is the scientific synthesis of the essential principles of law".

Paton: According to Paton "Jurisprudence is a particular method of the study not of the law of one particular

country but of the general notions of law itself." Paton is of the opinion that jurisprudence studies the basic

or fundamental principles or general notions of law itself.

Conclusion: On the basis of the above description we can say that Salmond's statement that

'jurisprudence is the science of the first principles, of civil law', appears to be more sound than any other

definitions because in fact we study the basic principles of law in jurisprudence and not the law of any

particular country.

NATURE AND SCOPE OF JURISPRUDENCE

Nature: Jurisprudence in its nature is entirely a different subject from other social sciences. The reason for

this is that it is not codified but a growing and dynamic subject having no limitation of itself. Every jurist does

not base his study on the rules made but tries to understand their utility after due deliberation. So it can be

said that Jurisprudence has no limited scope being a growing subject. There is a difference of opinion about

the nature of jurisprudence. It is called both Art and Science. But to call it science would be more proper and

useful. The reason for this is that just as in science we draw conclusions after making a systematic study by

inventing new methods, Jurisprudence is concerned with the fundamental principles of law and systematic

and scientific study of their methods.

Scope: Jurisprudence includes all concepts of human order and conduct in State and Society. According to

Justice P.B. Mukherjee, "Jurisprudence is both an intellectual and idealistic abstraction as well as

behavioural study of man in society. It includes political, social, economic and cultural ideas. It covers the

study of man in relation to State and Society." Salmond has also opined that "In jurisprudence we are not

concerned to derive rules from authority and apply them to problem; we are concerned rather to reflect on

the nature of legal rules, on the underlying meaning of legal concepts and on the essential features of legal

system." This makes the distinction between law and Jurisprudence amply clear. Thus, whereas in law we

look for the rules relevant to the given situation, in jurisprudence we ask what is for a rule to be a legal rule,

and what distinguishes law from morality, etiquette and other related phenomenon. It, therefore, follows

that jurisprudence comprises philosophy of law and its object is not to discover new rules but to reflect on

the rules already known.

Contents of Jurisprudence: The contents of jurisprudence are-

1. Sources: It is true that the basic features of a legal system are mainly to be found in its authoritative

sources and the nature and working of the legal authority behind these sources. Therefore, it obviously

forms the contents of jurisprudence. Subject such as custom, legislation, precedent as a source of law,

pros and cons of codification of laws, methods of judicial interpretation and reasoning, an inquiry into

the administration of justice etc. are included for study.

2. Legal Concepts: Jurisprudence includes the analysis of legal concepts such as rights, titles,

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property, ownership, possession, obligations, acts, negligence, legal personality and the related

issues. The study of these abstract legal concepts furnishes a background for better understanding of

(aw in its various forms.

3. Legal Theory: Legal theory is concerned with law as it exists and functions in the society, and the

manner in which law is created and enforced as also the influence of social opinion and law on each

other.

Utility I Importance of Jurisprudence: Salmond opines that jurisprudence has its own intrinsic interest

like any other subject of serious scholarship. Just as a mathematician investigates the number theory not

with the aim of seeing his findings put to practical use but by reason of the fascination which it holds for him,

likewise the writer on jurisprudence may be impelled to his subject by its intrinsic interest. The legal

researches on jurisprudence may well have their effect on contemporary socio-political thought and at the

same time may themselves be influenced by these ideologies.

Practical Applicability: Jurisprudence also has its practical applicability. It seeks to rationalize the

concepts of law which enables us to solve the different problems involving intricateness of law. In other

words, it serves to render the complexities of law more manageable and rational and in this way theory can

help to improve practice in the seats of law.

Educational Value: Jurisprudence has great educational value. The logical analysis of legal concepts

widens the outlook of lawyers and sharpens their logical technique. It helps them in shading aside their

rigidity and formalism and trains them to concentrate or social realities and the functional aspects of law. It is

not the form of law but the social function of law which has relevance in modern jurisprudence. Law has to

take the needs of society and also of the advances in related and relevant disciplines such as sociology,

economics, philosophy etc. The proper understanding of law of contract may perhaps require some

knowledge of economics and economic theory or a proper grasp of criminal law may need some knowledge

of criminology and perhaps also of sociology.

Holland: Commenting on the significance and utility of jurisprudence, Holland observed, "The ever

renewed complexity of human relations calls for an increasing complexity of legal details, till a merely

empirical knowledge of law becomes impossible." Thus, jurisprudence throws light on the basic ideas and

the fundamental principles of law in a given society. This is why it has been characterized as "the eye of law"

by some jurists.

Jurisprudence helps the judges and the lawyers in ascertaining the true meaning of the laws passed by the

legislatures by providing the rules of interpretation. It also furnishes them an opportunity to pinpoint the

lacunae, short-comings and defects in the laws framed by the legislature and remedy them through their

judicial interpretation.

The study of jurisprudence helps in rationalizing the thinking of the students and prepares them for an

upright civil life. The knowledge of law and legal precepts also helps them to face every exigency of human

affairs boldly and courageously.

Jurisprudence may also be helpful to legislators who playa crucial role in the process of law-making. The

study of jurisprudence may familiarize them with technicalities of law and legal precepts thus making their

job fairly easy as also interesting. The utility of jurisprudence should be tested in the light of its functional

role and in the context of the prevailing socio-economic and political philosophies of the time, place and

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circumstances. The law should serve the purpose of 'social engineering' by preserving societal values and

eliminating conflicting interests of individuals in the society.

Jurisprudence is the Eye of Law: On account of the importance of jurisprudence in the field of law is

called "the eye of law". The eyes are one of the most important parts of human body. Almonds all human

activities and the movements of body are possible only through them. Unless man can see things properly,

he cannot do any work. The reason of calling jurisprudence the 'eye of law' is that jurisprudence functions

for law in the same manner as the eyes do in human body.

The main function of jurisprudence is to study the origin of law, its development and its contribution towards

society. Law is the only nearest and important aspect in the absence of which the existence of a peaceful

and organised society cannot be imagined. Laws are the basis of all nation-activities. The proper existence

of State is in obedience of personal rights and liabilities of people and the conduct of national activities

depends on the existence of solid and perfect law.

The matters relating to birth, marriages, death, succession etc., are equally controlled through laws. Hence

it is essential to know the correct basic principles of law which are contained only in the jurisprudence. It is

necessary that the people should have a sound knowledge of law which is possible only with the help of

jurisprudence. Therefore, jurisprudence, having so much importance for the society, has rightly been called

the eye of law.

KINDS OF LAW

Definition of Law: In one sense the law is a large body of rules and regulations based mainly on general

principles of justice, fair play and convenience, which have been worked out and promulgated by

governmental bodies to regulate human activities and define what is and what is not permissible conduct in

various situations.

The term law, however, is also used in a much broader sense. To denote the whole process by which the

organized society, through governmental bodies and personnel (Legislatures, Courts, Administrative

tribunals, Law enforcement agencies and officials, Penal and Corrective institutions etc.) attempt to apply

these rules and regulations and thereby establish and maintain peaceful and orderly relations between the

people in that society.

Thus the study of law is necessarily not only a study of legal rules but also a study of the whole legal system

through which society attempts to maintain law and order.

Article 13(3)(a) of the constitution. The term law includes any ordinance, order, by-law, rule, regulation,

notification, custom and usage having, in the territory of India, the force of law.

The Kinds I Classification of Law: The use of the term law is made in various senses. It denotes different

kinds of rules and principles. Now we are discussing various meanings given to law which shall be

discussed and the meaning in which it is taken in jurisprudence shall be discussed.

Thus according to Blackstone, "Law in its most general and comprehensive sense signifies a rule of action

and is applied indiscriminately to all kinds of action whether animate rational irrational." Thus, we say the

laws of motion of gravitation of optics or mechanics as well as laws of nature and of nations.

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Classification of Law: For a proper and Logical understanding of Law, its classification becomes

necessary. It helps in grasping the principles and the logical structure of the legal order. It makes clear the

inter-relation of rules and their effect on each other. It helps in arranging the rules in a concise and

systematic way. It presents an analysis for the architect of Law which greatly helps in codification. It is of

great use for a lawyer. It helps him in understanding the law.

Classification of law is generally on the following pattern -

1. Substantive Law and Procedural Law or Formal Law.

2. Civil Law and Criminal Law

3. International Law and Municipal Law.

4. Codified and Uncodified Law.

1. Substantive Law and Procedural Law or Formal Law: Substantive law is the law dealing with the

topic with which it has been connected. e.g., Contract Act, Hindu Law, I.P.C.

Procedural or formal law deals with evidence and procedure in court of law- C.P.C. for civil cases

and Cr. P.C. for criminal cases. We have on the whole the same law of evidence in Civil cases.

Some laws are predominantly substantive and some mainly formal or procedural. But a substantive

law also may have the formal in it., e.g., Company Law, Insolvency Law etc.

Where the rule of formal law differs from a rule of substantive law, the substantive law prevails over

the formal law, because all the formal laws deal with the form not with the spirit-

a) Substantive law is that which defines the right while procedural law determines the remedies.

b) Substantive law is concerned with the ends which the Administration of Justice seeks, procedural

law deals with the means and instruments, by which these ends are to be attained.

c) Procedure Law regulates the conducts and the relations of courts and litigants in respect of the

litigation itself. Substantive Law determines their conducts and relation in respect of the matter

litigated.

2. Civil Law and Criminal Law: Civil Law which is the part of the imperative law, is the law of land and is

forced by its courts -

"Civil Law is all that body of principles, decisions and enactments made, passed, recognised or

approved by the legally constituted authorities or agencies in a state, for regulating rights, duties

and liabilities (between the state and the citizens, as also the citizens inter-se, and the citizens of the

state in relation to members of foreign state), and enforced through the machinery of the judicial

process for obedience to the sovereign authorities in a state."

Sometimes the expression Civil Law is used to convey the idea that the civil law is different from the

criminal law or the law of military.

Civil Law has what are known as sanctions behind it. A sanction means a coercive factor for the

enforcement of law. These sanctions are of three kinds namely- 1. Inner or moral, Le. the force of

one's soul. 2. Social Le. those arising out of public resentment and public opinion, and 3. Legal.

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Civil Law includes Constitutional Law, Administrative Law and Public Law, Constitutional Law is the

Law that provides for the working of the Constitution of a country. That says how the Executive, the

Legislative and the Judiciary are to function. That determines the structure of e state, the allocation

of powers, the rights and liberties of the subject as also the obligation of t e citizen in consonance

with the maintenance of the solidarity of the State.

Administrative or Executive Law: Administrative or executive law is the law (including the rules)

concerning the Administration of the executive department of the State.

Characteristics of Civil Law:

a) Uniformity,

b) Territoriality of application.

c) Generality of application, except in the case of a special law.

d) Attempted conformity with the principles of justice

e) The Creation of Legal rights.

f) The recognition by the State or its agency.

Criminal Law: Criminal law defines crimes/offences, and prescribes punishment for them. Its aim is the

prevention of and punishment for offences.

Criminal law is necessary for maintaining order and peace within the State.

In civilized societies crime is considered to be a wrong against the society. Therefore, the state initiates the

proceedings against the offender, and thus it is always a party in criminal cases. This is why the criminal law

is considered as a branch of pubic law.

3. Municipal Law and International Law:

1) Municipal law, State Law or national law is the law of a state or a country and in that respect is

opposed to International Law.

2) Municipal Law is the law of the Sovereign over the individual subject to the Sovereign rules.

3) It is the rule or law by which particular nation is governed.

4) It is the rule or law by which particular nation is governed.

5) It is operated within the territory of the country.

International Law: International law, also called the Law of Nations, is the body of rules which regulates

mainly the mutual relations of States.

It is made up party of –

a) Customs between the nations,

b) Conventions as the result of International Conference and otherwise.

c) International reciprocity.

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Some earlier jurists like Austin and his supporters were of the view that international law is not law as it

lacked many of the elements which a law should have.

But on the other hand Kelson, and his supporters were of the view that international law is a law and is

superior to the municipal law.

This controversy is no more and it has been recognised on almost all heads that international law is law

and is a very important branch of law.

According to some jurists, it may be divided into two classes-

Public International Law: Public International law is the body of rules which governs the conduct and

relations of states with each other.

Really speaking, the term "International Law" is used for this class of Law.

Private International Law: Private International Law means those rules and principles according to

which the cases having foreign elements are decided e.g. a contract between India and Pak to be

performed in Cyclone.

The rules and principles on which the rights and duties of person would be determined would be called

private international law or conflicts of laws.

4. Codified and Uncodified Law

According to Oxford Dictionary 'Code' means a systematic collection of statutes, body of laws, so

arranged as to avoid inconsistency and overlapping.

Codification means promulgation, compilation, collection and systematization of the body of law in

a coherent form by an authority in a State competent to do so.

The codified law is certain, simple and rigid whereas the uncodified law is flexible as a judge is

bound by the precedent of higher courts.

The codified law can be laid down beforehand whereas the emergence of uncodified law depends

on litigation. Codified law is coherent whereas the uncodified law differs from case to case.

Uncodified law is the principle and enacted law is merely accessory.

The activity of the legislative is called for only on special occasions to do that which lies beyond the

constructive or remedial efficacy of the common law or uncodified law.

Codification means, not the total disappearance of case law or uncodified law, but merely the

reversal of this relation between it and statute law. Case law or uncodified law continue to grow,

even when codes are complete. It means that the substance and body of law shall be enacted law,

and that in that case law shall be incidental and supplementary only.

But no legislative skill can effectually anticipate the complexity and variety of facts. The function of

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precedent (uncodified law, case law) will be to supplement, to interpret, to reconcile and to develop

the principles which the Code contains, Out of Code itself, therefore, a body of case law will grow, as

judicial commentary and supplement them. This supplementary and explainary case law is codified

and incorporated into successive additions of the Code then the process of interpretation will begin

again with the like results.

Before the codification, the customs and personal laws governed the individuals in India.

This classification can also be shown with the help of following diagram -

So law can also be classified as follows-

1. Public Law: The state activities are largely regulated by public law. It determines and regulates the

organization and functioning of the state and determines the relation of the state with its subjects. Public

law may be classified into three classes –

Constitutional Law: By constitutional law is meant that law which determines the nature of the state

and the structure of the government.

Administrative Law: Administrative law deals with the structure, powers and functions of the organs of

administration, the limits of their powers, the methods and procedures followed by them in exercising

their powers and functions, the methods by which their powers and functions are controlled including

the legal remedies available to a person against them when his rights are infringed by the operation."

Criminal Law: Criminal law defines offences and prescribes punishment for them. Its aim is the

prevention of and punishment for offences. Criminal law is necessary for the maintenance of peace and

order within the state.

2. Private Law: This branch of law regulates and governs the relations of citizens with each other. The

parties in such cases are the individual and the state. Through it judicial organ adjudicates the matters

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in dispute between them.

A general classification is as follows -

a. Low of persons

b. Law of property

c. Law of obligations

d. Conflict of laws

Law of obligation is divided into three classes-

a. Contract

b. Quasi Contract

c. Tort

SOURCES OF LAW

The term 'sources of law' has many meanings. General meaning of the word source is origin another

meaning is the "Materials" or the constituents. There is difference of opinion among the jurists about the

origin of law. Austin says that law originates from the Sovereign. The theologians say that law originates

from God. The Vedas, the Quran which are the primary law sources of Hindus and Mohammedans are

considered to have been revealed by God.

Classification of Sources: Solmand has divided the sources of law into two classes –

1. Former Sources, and

2. Material Sources.

The Former source is the act of the State as manifested in the Statute. Former sources are those from

which the law derives its force and validity.

Material sources are those sources of law from which law derives not its validity but the subject matter of

which it is composed.

Material sources are divided into two-

1. Legal sources, and

2. Historical Sources

Legal sources are those which are authoritative. These are recognised as such by the law itself. These are

allowed by the Courts as of right. These are immediate sources of law. The rest of the sources are the

historical sources; these are unauthoritative. Under this clause come- Juristic writings, Foreign decisions

and numerous other things from which a judge derives help in shaping his judgement. If they are

recognized by law as such or they are incorporated in law they may become legal. Solmand says that

historical sources pertain to legal history and not to legal theory. Therefore, in his book of jurisprudence he

has discussed only legal sources. And even in legal sources he has included Legislation, Precedent and

Customs only. As per Solmand, classified by reference to their legal sources, there are four kinds of law-

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1. Enacted law, having its source in legislation;

2. Case law, having its source in precedent;

3. Customary law, having its source in custom; and

4. Conventional law, having its source in agreement.

Customs

What is Custom? Custom may be defined as the uniformity of conduct of people under like

circumstances.

Those patterns of human behaviour which receive universal acceptance and recognition are called sage

and when in the course of time they get established, they are called customs.

In the Tanistry case custom is described as "It is just non-scriptum 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 practise it from time to time, and it is by frequent

Iiteration and multiplication of this act that the custom is made and being used. From time in which custom is

made and being used to time in which memory runneth not to the contrary obtains the force of law.

Herbert Spencer points out "Before any definite agency for social control is developed there exists a control

arising partly from the public opinion of the living, and more largely from the public opinion of the dead".

Thus, it is tradition passing on from one generation to another that originally governed human conduct. This

tradition is custom.

According to Halsbury's Law of England "A custom is a particular rule which has existed either actually or

presumptively from time immemorial, and has obtained the force of law in a particular locality, although

contrary to or not consistent with the general common law of the realm".

CLASSIFICATION OF CUSTOMS:

The customs in the wider sense can be classified as follows-

Customs without Sanction: Customs without sanction are those customs, which are non-obligatory.

They are observed due to the pressure of public opinion.

Customs having Sanction: Customs having sanction are those customs, which are enforced by the state.

These are the customs with which we are concerned. These can be divided into two parts-

i) Legal Customs.

Customs Having Sanction Customs Without Sanction

Legal Conventional

General Local

Customs

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ii) Conventional Customs.

Legal Customs: Legal Customs operate as a binding rule of law and have been recognized by the courts

and have become a part of the law of land. These customs are enforced by courts and can further be

classified as follows-

a) General Customs: General customs are those customs which prevail throughout the territory of

the state, though the customs which are treated to be part of law of the land are general legal customs.

b) Local Customs: Local customs are those customs which apply to a defined locality i.e. to a

particular district or town. These can be classified as follows -

Geographical/ Local.

Personal / Local Customs.

Essentials of a Valid Custom: Certain essentials have been laid down which must be satisfied by a

custom for its judicial recognition. The essentials which were laid down by the jurists for the recognition of

custom are given below-

Antiquity: A custom to be recognized as law must be proved to be in existence from time immemorial. Time

immemorial means time so remote that no living person can give its origin or can give incidence concerning

it.

Continuance: The other essential for the validity of custom is continuance. If must have been practiced

continuously. It means that custom must have been enjoyed continuously without interruption. If a custom

has been disturbed for a considerable time, a presumption arises against it.

Peaceable Enjoyment: The custom must have been enjoyed peaceably. If a custom is in dispute for a long

time, in a law court or otherwise, it negatives the presumption that it 'originated by consent as the most of

the customs naturally might have originated.

Obligatory Force: For a valid custom it must have an obligatory force, which means that it must have been

supported by the general public opinion and enjoyed as a matter of right.

Certainty: A custom must be certain a custom A which is vague or indefinite, cannot be recognized. It is

more a rule of evidence then anything else.

Consistency: Custom must not come into conflict with other established customs. There must be

consistency among the customs. It is, therefore, axiomatic that one custom cannot be set in opposition to

other customs.

Reasonableness: A custom must be reasonable. Custom gives a good deal of discretion to the court in the

matter of recognition of customs. The degree of reasonableness cannot be judged. The custom should not

be immoral and further the custom should not be contrary to the justice.

Conformity With Statute Law: A custom, to be valid must be in conformity with the statute law.

If a custom is having all the essentials given above then it is law otherwise it is not a valid custom.

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Reasons For Recognition of Custom: Salmond has given two reasons for the recognition of custom. The

reasons for the recognition are as follows-

Custom is frequently the embodiment of those principles, which have commended themselves to national

conscience as principles of justice and public utility. The national conscience may be well accepted by the

court as an authoritative guide.

The existence of an established usage is the basis of a rational expectation of its continuance in the future.

When Does A Custom Become Law: To answer this question two views have been given by the jurists on

this point, which are contrary to each other.

The view of Austin and Gray is that a custom becomes law after its recognition by the Sovereign. Austin

says that custom is a source of law; it itself is not law. His definition of law that it is a command of the

Sovereign does not allow the customs to be included in law. A custom is not a 'positive law' unless it is so

declared by the court, or, in other words, it is not law until it has received judicial recognition or it has been

embodied in some statute.

According to Savigny, who is the founder of this school, custom is per se law. A custom carries its

justification on itself. They are based on the opinion of the people and national character. They embody

those principles of justice which society recognises. He says custom is the badge and not a ground of origin

of positive law.

According to historical school, custom is law independent of any declaration or recognition by the State.

The State has no discretion or power over them except to accept them.

Conclusion: Customs lie in the foundation of all legal systems. They came into existence with the

existence of the society. The customs are the basis of most of the laws, but at the same times, Judges,

Jurists and Legislatures have played a very vital role in moulding them.

Precedent: Precedent is a fundamental principle of judicial practice in the British Common wealth and in

the United States the decision of a Court (quite apart from its intrinsic merit) should have binding force on

judicial tribunals.

What is Precedent? Precedent is an earlier event, decision or action used to guide in parallel circumstances

later.

Salmond : Precedents 'are' judicial decisions followed in subsequent cases.

Gray: A precedent covers every thing said or done which furnishes a rule for sub sequent practice.

Keeton: A Precedent is a judicial decision to which authority has (in some measure) been attached.

1. Civil Law System: Civil law system which is followed in U.S.S.R., Germany, Japan, France and

Latin American countries.

2. Common Law System: Common law system which is followed in British Commonwealth, India

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and U.S.A.

The Civil law system does not follow the Precedent System. The Doctrine of Precedent was taken from the

British System. Art. 141 of the Constitution of India. declares that the law declared by the Supreme Court of

India shall be binding on all Indian Courts.

Some jurists consider Precedent is not law. Some say that judges do not make law. The role of judges is to

explain and interpret the legislation and not to explain it. Look at the common law, for example¬which is

exclusively created by judges. The whole law of Torts in India is judge-made law. John Austin condemned

the practice of judges making law. Salmond and Gray maintained that law amounting to nothing but the

decisions of the Courts. However, all three agree that precedent is an important source of law.

What is basis of Precedent: The judges create the Precedent on the basis of the existing law applicable to

the case, if any, and if there is none, then out of natural justice, equity and good-conscience.

What exactly is a Precedent

1. Is it the decision?

2. Is it the reason given by Court in such a decision, or

3. It is the material set of facts which have forced such decision?

It is very difficult to give a categorical answer to these questions. But one must find out from any judgement

that portion which is actually binding. In other words, what rule of law is behind the decision in a case must

be discovered.

What is Ratio? : There are three major views on this point-

Salmond: One view of Salmond who states that "Precedent is a judicial decision which contains in itself a

principle which forms its authoritative clement is termed as its Ratio decedent."

Obiter Dicta: The other principles in the case remunerated in the case are Obiter Dicta. It means "things

said by the way or the statement of law which goes beyond the requirements of the particular case and

which lay down a rule that is irrelevant or unnecessary for the purpose of the case, are called 'Obiter Dicta'.

The judges are not bound to follow them, though they can take advantage of the same".

Prof. Good-Hart: The other view is of Prof. Good-Hart "It lays down that the ratio in a given judgement is not

the principle of law laid down in that decision but the material facts (and the decision based on that set of

facts) forms the true ratio of any judgement."

Simpson and Stone: There is another theory propounded by Simpson and Stone "This theory holds that it

is erroneous to hold that each case has its own ratio. According to this view only a study of whole series of

decisions on a particular problem of law will be able to reveal the merging principle on that given problem."

The ratio is the product of the creative work of the courts. It is the Dynamic process of restricting and

expanding, and reporting, and interpreting and reformulating a prior body of Doctrine.

We have in theory accepted the view of John Salmond. However the latest view that Ratio of any case is a

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productive and dynamic process's, in fact, applied by our courts.

1. Original Precedent: Original precedents are those which create or establish original or new.

2. Declaratory Precedent: Declaratory precedents are those which merely reiterate and apply an

already existing rule or law.

Precedents are further divisible in two classes-

1. Authoritative Precedent: An authoritative precedent is one which judges must follow whether they

approve of it or not. This is also called a Binding Precedent. Generally, a lower court is bound by the

decision of higher court.

2. Persuasive Precedent: A persuasive precedent is one which the Judges are under no obligation to

follow, but which they will take into 'consideration' and to which they attach such weight as it seems

to them to deserve. Decisions of a court of co-ordinate jurisdiction are only persuasive.

The Doctrine of Precedant in India: All ancient texts suggest that "That path is the right one which as

been followed by virtuous men. On the basis of this there was the theory of precedent in India.

British Rule: In the beginning there were two types of Courts functioning in British India i.e. Crown Courts

and Company Courts. The Crown Courts were the Supreme Courts and they were established under the

provisions of Regulating Act, 1773 and were functioning in three presidency towns i.e. Calcutta, Bombay

and Madras and these Courts were established under the authority of Parliament of England the other

hand, the Company Courts i.e. Sadar Diwani Adalat, Mofussil Diwani Adalat and the court head farmer

purgana were functioning in mofussil areas of Bengal, Bihar and Orissa. Both Crown courts and Company

Courts were amalgamated under the provisions of Indian High Court Act, 1861 which established High

Courts at Calcutta, Bombay, Madras and then North West Provinces and so on. hen the Judicial Committee

of Privy Council / King-in-Council became the final Appellate Tribunal, a new chapter was added in the

Indian Legal history and a clear hierarchy of the courts was established. There were Presidency Courts (in

Presidency towns) and mofussils court (in districts) and above these Courts was the High Court. The Privy

Councilor the King-in-Council was the final Appellate Court Tribunal for Indians in England. Every court was

bound by the decision of the superior court. This helped bringing uniformity and certainty in law because the

decisions of Privy Council were binding on all the Courts in British India.

stLater on, on 1 October, 1937 a Federal Court was established in India under the provisions of government

of India Act, 1935. The hierarchy of the Courts before independence of India was as under-

1. Privy Council/Kind-in-council.

2. Federal Court

3. High Courts, and

4. District Courts.

Thus, the decisions of the Federal Court were binding on all the courts below. The decisions of the Privy

council were binding on the Federal Court and the Court below. The Privy Council was not bound by its n

decisions. During British time the Obiter Dicta (things said by the way) was binding on all the courts British

India.

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After independence the Supreme Court of India was established as the highest court of India. The Article

141 the Constitution enacts that the decision of the Supreme Court is binding on all the Indian Courts. The

Supreme Court, sometimes overrules its earlier decisions or in other words, the Supreme Court is not

bound by its earlier decision (Art. 143 of the Constitution). The overruling is not a good law but if any thing is

detrimental to the general welfare of the public, the Supreme Court overrules the same as it has been done

by the Supreme Court in Sajjan Singh vs. State of Rajasthan and Shankari Prasad case. The question

before the court was whether the parliament has the power to abridge or to take away the fundamental

rights of the citizens. The Supreme Court held that yes, the parliament has the power to abridge or to take

away the fundamental rights of the citizens. But in Golak Nath case Supreme Court reversed/ overruled its

earlier decision and held that the parliament has no power to take away the fundamental rights of the

citizens. The Supreme Court evolved the Doctrine of prospective overruling and declared that the decision

of Golak Nath case will only be applicable to the future cases. This decision was not given retrospective

operation so that there will be no choas and confusion among the masses and the whole progress of the

country shall be dashed to ground.

So the Obiter Dicta declared by the Supreme Court alongwith the ratio in a particular case is not binding on

all the tribunals/subordinate courts in India as it was being done during British period (that the Obiter Dicta

declared by the Privy Council was binding on all the Courts, subordinate to Privy Council, in India)

Hierarchy of Courts under Indian Constitution

The Application of the Doctrine: The authority of a decision as a precedent lies in its ratio decidendi. It is,

therefore, necessary to know what this ratio decidendi is and how it is determined.

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. And as the result the principle that comes out, is not applicable only to that case,

but to other cases also which are similar to the decided case in their essential features. This principle is

known as ratio decidendi, The issues which need determination of no general principles are answered on

the basis of the circumstances of the particular case and lay down no principles of general application.

These are called obiter dictum. It is the ratio decidendi or the general principle, and not the obiter dictum that

Supreme Court

High Courts (in each of the States)

District and Sessions Judges Courts (in each of the Districts)

Civil (Civil Judge/Court of Munsif) CJM (Criminal)

Small Cause CourtsJudicial Magistrate Executive Magistrate

Nayaya Panchayats

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has the binding effect as a precedent. But the determination of ratio decidendi and obiter dictum is not so

easy in practice as it appears to be in theory. Many eminent jurists have laid down principles and methods to

determine the ratio decidendi of a decision. But the task is full of difficulties. Prof. Goodhart has made an

elaborate discussion about the structure of a case and has suggested methods for the determination of the

ratio decidendi, but he too has failed in laying down infallible test. In cases in which the reasons for the

decision are not given, or where judges have come to the same conclusion, but have given different, and,

sometimes, contrary reasons, or where a reason, is only a hypothesis it is very difficult to find out the ratio

decidendi. But this difficulty serves useful purpose also. It is for the judge to determine ratio decidendi and

to apply it on the case which he is going to decide. This gives an opportunity to him to mould the law

according to the changed conditions by laying emphasis on one or the other point.

When an appeal is heard by an even number of the judges and they are equally divided, the practice is that

the appeal is deemed to have failed, and it is the resultant negative which is regarded as the precedent for

the future.

Precedents are cited not only in those courts, or tribunals where they have obligatory force, but also where

the precedent cited is in any way relevant in answering the question involved. And relevant decision of a

court is a strong argument and it is given a respectful consideration. A precedent may be cited from any

source which is reliable. Generally, the reports are used, and some reports are considered more

authoritative than the other.

A precedent is not abrogated by lapse of time. With the passing of the time the authority of a precedent goes

on strengthening if the law on that point is not altered by some statute. But very ancient precedents are,

sometimes, inapplicable due to the changed circumstances, and then the courts resort to 'distinguishing'

and get rid of the binding authority of such precedents. Precedents have been compared with wine, which

'improves with age up to a certain point and then begins to go off."

Merits and Demerits of the Doctrine: It is clear from the discussion made in the preceding page that the

doctrine has assumed a very important place in modern times. A number of jurists have expressed their

views for and against the doctrine. The supporters of the doctrine put forward the following arguments in

support of the doctrine-

Merits:

1) It shows respect for the opinion of one's ancestors. Eminent jurists like Coke and Blackstone have

supported the doctrine on this ground. They say that there are always some reasons behind these

opinions, we mayor may not understand them.

2) 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". Therefore, in following

precedents we follow customs which in their turn have been a general practice or conduct of the people

for a long time, and not only the opinion of a judge.

3) 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 labour of the judges

and the lawyers. If the precedents are not followed, every case would go from the court of the first

instance to the highest tribunal causing a lot of delay, expense and inconvenience to the public. At the

same time, it will cause a great impediment in the way of the administration of justice.

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4) Precedents bring certainty in law. If 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 most uncertain. A good law should always be certain. This certainty can be

brought about only by conferring authority on precedents.

5) Precedents bring flexibility in the law. Judges in giving their decisions are influenced by social,

economic and many other values of their age. They mould and shape the law according to the changed

conditions and thus bring flexibility in the law.

6) Precedents are Judge-made law. Therefore, they are more practical. They are based on actual

cases. It is not like statute law which is based on a priori theories. The law develops through precedents

according to actual needs. This development is based on experience. Thus, it is better suited to fulfill the

ends of law.

7) Precedents bring about a scientific development in law. In a case Baron Parke observed-"lt appears

to me to be of 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." In other words, precedents

bring logical perfection in law and put the law in the form of principles.

8) Precedents guide judges and, consequently, they are prevented from committing errors which they

would have committed in the absence of precedents. The law, in precedents, is laid down after

thrashing of the points and argument in great detail. Therefore, it is of great value to the judges. By

following precedents, judges are prevented from any prejudice and partiality because precedents are

binding on them. By deciding cases on established principles, the confidence of the people in the

judiciary is strengthened.

9) As a matter of policy, decisions, once made on principle should not be departed from in the ordinary

course. When reliance has been placed on a decision and the people have adjusted their rights and

liabilities according to it, they should not be disappointed by an overruling of such decision. Jessel,

M.R., in a case, observed:"Where a series of decisions of inferior courts have put a construction on an

Act of Parliament, and thus, made a law which men follow in their daily dealings, it has been held, even

by the House of Lords, that it is better to adhere to the course of the decision than to reverse them

because of the mischief which would result from such a proceeding. Of course, that requires two things,

antiquity of decision, and the practice of mankind in conducting their affairs."

DEMERITS OF THE DOCTRINE:

1) There is always a possibility of overlooking authorities. The vastly increasing number of the cases

has an overwhelming effect on the judge and the lawyer. It is very difficult to trace out all the relevant

authorities on every point. There are instances where a decision might have been different if some

precedent would not have been overlooked.

2) Sometimes, the conflicting decisions of superior tribunal throw the judge of a lower court on the

horns of a dilemma. The courts are faced with what an English judge called "complete fog of

authorities". Though there are rules for such contingencies, they are not of much help. The provision is

that the lower court should choose between the two conflicting decisions of a superior court. But this

makes law uncertain, depending on the individual interpretation and discretion.

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3) A great demerit of the doctrine of precedent is that the development of law depends on the incidents

of litigation. Sometimes, most important points may remain unadjudicated because nobody brought

action upon them.

4) A very grave demerit, or, rather an anomaly, of the doctrine of precedent is that, sometimes, an

extremely erroneous decision is established as law due to not being brought before a superior court.

This is followed in later cases because courts do not allow the reopening of a question. Thus, it

becomes a settled practice, and if, later on a point is brought before a superior court in a case, it is

obliged to approve it on the principle "that it is not necessary or advisable to disturb a fixed practice

which has been long observed in regard to the disposition of property, even though it may have been

disapproved at times by individual judges, where no real point of principle has been related".

Conclusion

Arguments Supporting the Doctrine not Sound: It is submitted that many of the arguments given in

support of the doctrine of precedent are not realistic. The argument that by following precedents we pay

respect to the opinions of our ancestors is untenable and illogical. Bacon's view that the unlearned age

governs the more learned puts in a nutshell the absurdity of this argument. The other argument also that

precedents are based on customs contains but little truth. In any case it is not true in modem times. The

precedents do not bring certainty in law. There is no infallible technique for discovering the law on a

particular point except to turn the leaves of the terrifying volumes of reports and digests with every

possibility of overlooking authorities. Therefore, there is more uncertainty than certainty in following the

precedents. The argument that the doctrine leads to the scientific development of law is unconvincing.

Such development can be secured even without the doctrine of precedent. In the name of precedent most

unfortunate cases are established as law and mar the logical consistency of the law. Undoubtedly,

precedents, in some cases, guide judges, but in other cases their binding effect makes the judges to deliver

judgments which are in no way approved by their sense of justice. In some cases they express their regret

for their own decisions which they themselves consider to be wrong. The doctrine, sometimes, causes

great impediment in the development of law. Thus we see that the arguments given in support of the

doctrine of precedent do not hold much water. In the Continent where there is no doctrine of precedent, as it

is in England, there is more certainty, flexibility and scientific development of law. In any case, most of the

arguments given in support of the doctrine have no basis in India, because here there is no common law,

and the legal development in this country has been on different lines.

They Contain Some Truth: However, all the arguments given in support of the doctrine are not without

foundation. Some of them contain truth also. The doctrine has important practical uses. By making certain

improvements and reforms, such as good reporting, evolving techniques for ascertaining law on a point

without overlooking authorities, etc., it may render valuable help to the development of law. In the legal

systems, where it has been adopted since long, to do without it is almost impossible. Therefore, there is no

likelihood of its being abandoned in near future.

It should not be concluded by what has been said above that a decision once given is binding for all the

times to come, or all the decisions carry equal authority. There are rules, principles and practices which

govern and regulate the authority of a precedent.

LEGISLATION

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Introduction: The term "legislation" is derived from two latin words, "Legis" which means 'Law' and 'Latum'

which means to make. The common meaning of legislation is the making of law. It may be defined as the

promulgation of legal rules by an authority duly empowered in that behalf.

According to Bentham and Austin. Legislation signifies any form of law making. The term legislation,

should, however, be restricted to that process of legal evaluation which consists in the formulation of rules

of law by the authority appointed by the Constitution for the purpose.

GRAY defined legislation as the formal utterances of the legislative organs of the society.

According to Salmond, Legislation is that source of law, which consists in the declaration of legal rule by a

competent authority.

Classification of Legislation:

1. Supreme Legislation.

2. Subordinate Legislation/Delegated Legislation.

At present in all democratic countries only a relative small part of the total legislative output emanates

directly from the Legislature and much more extensive in bulk is what is known as delegated legislation.

Supreme and Subordinate Legislation: Usually the legislature enacts a law covering only general

principles and policies relating to the subject matter in question and confer rule making powers on the

Government or on Administrative Agencies. In other words, the Legislature makes a Skelton of an Act by

providing aims, object and policies, and the flush and blood is provided by the subordinate authorities by

making rules etc. thereof. For example- Import and Export Control Act, 1947 and Essentials Commodities

Act, 1948 are the supreme legislations. The Import and Export Control Act contains only 8 sections. The

Central Government has built a vast mechanism of Import and Export licensing through Delegated

Legislation promulgated under the statutes. Similarly the Essential Commodities Act, 1953 contains 16

sections and Central and State Government promulgated rules and regulations to control the whole

operation of controlling and regulating production, movement, supply, sales and price of a number of

commodities.

Delegated Legislation: Delegated legislation means the law made by the executive under the powers

delegated to it by the supreme legislative authority.

The term 'Delegated Legislation' is used in two senses. It may mean-

1) Exercise (by a subordinate agency) of the legislative power delegated to it by Legislature, or

2) The subsidiary rules themselves which are made by the subordinate authority in pursuance of the

power conferred on it by the Legislature.

In India Subordinate Legislation conveys the idea that the authority who makes legislation is subordinate to

the Legislature.

The subordinate legislation may be divided into following classes-

1. Autonomous Law: When the Supreme authority confers powers upon a group of individuals to

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legislate on the matters entrusted to them as a group, the law made by the latter is called autonomic law

and the body is an autonomous body.

2. Judicial Roles: In judicial rules, powers are given to the judicature to make rules for the regulation

of its procedure.

3. Local Law: In this the local bodies are given powers to make byelaws concerning their local

matters. Local laws are also known as Municipal Laws.

4. Colonial Law: Colonial laws are the law for the countries, which are not independent and are under

the control of some other state. The laws made by them are subject to the supreme legislation of the

state under whose control they are; thus it is subordinate legislation.

5. Executive Made Law: A government consists of three organs: Legislative executive and judiciary.

The function of legislative organ is to make laws, that of judiciary to administer justice and of the

executive to execute laws or to run administration. The executive organ in addition to its usual function

does some law making also. This is subordinate legislation. This power to the executive is delegated by

the legislature. This kind of subordinate legislation is called "delegated legislation."

Reason for Delegated Legislation: Delegated legislation has become imperative due to following

reasons-

1. Want of Time: Parliament frames only the broad rules, principles and the departments are left to

make rules and to fill in the details due to lack of time.

2. Technicality of the Matter: With the progress of society things have become more complicated

and technical. All the legislators may not know them fully and hence they cannot make any useful

discussions on it. Therefore, after framing of the general policy by the parliament the govt. dept. or other

bodies who know its technicalities are given the power to lay down details.

3. Emergency: During the time of emergency quick and decisive action is very necessary. Therefore,

delegated legislation is necessary in emergency.

4. Flexibility: To adapt the law according to future contingencies or adjustments which are to be made

in future can be done efficiently and effectively only when a small body is given power to do so.

Therefore, delegation to the departments becomes necessary.

5. Local Matter: There are matters, which concern only a particular group or locality. Any legislation

on this matter needs the consultation of these groups. Therefore, delegation is necessary.

6. Experimentation: Some acts of parliament provide for their coming into operation in different

localities at different periods according to suitability. Therefore, delegation is necessary.

Dangers of Delegated Legislation: The dangers of delegated legislation are as follows-

1. Legislation may be passed in too skeleton a form and wide powers of action to make new laws may

be given.

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Safeguards Against Delegated Legislation: The following safeguards have been suggested by jurists

against delegated legislation-

1) Parliament Control : The act containing provision for making rules shall be laid on the table of

legislature and these rules shall be laid down on the table before a period of 30 days before the date of

their publication. These rules shall be subject to modifications by the house.

2) Judicial Control: Judicial control exercises effective control. Delegated legislation will be

ultravires if it goes beyond the basic policy.

Advantages of Legislation Over Precedent:

1) Legislation has abrogative power also. It does not create only new law but it can abrogate an

existing law.

2) For the most part, the operation of legislation is prospective, though it may be retrospective also, if it

is so chooses.

3) A statute law can lay down law before hand.

4) Coherency and consistency. Statute law is coherent.

5) Statute law is definite, brief, clear and easily understandable.

Cardoze says "It is the output of a multitude of minds and must be expected to contain its proportion of

vagaries". The law made by judges has re-developed from precedent. It is every time restricted to the

particular case which gives occasion for its formulation and application.

According to Salmond, a case law is gold in the mine, a few grains of the precious metal to the ton of useless

matter- while statute law is a coin of the realm ready for immediate use.

Advantage of Precedent over Legislation:

1) Better Ethical Content: Diecy says "the morality of the court is higher than the morality of

politicians". It is because the legislation is generally the product of the will of the politicians who are

liable to be affected by popular passions of the hour. Judiciary law, on the other hand is made in the

serene atmosphere of Courts of justice by persons trained to hold the scales of justice evenly.

2) Flexibility: Sir John Salmond points out that one of the advantages of a system of case-law over

enacted law consists in the greater flexibility of the former. Rigidity is the capital defect of statute law. In

the case of statute law the letter of the law governs and so the true spirit of the law has sometimes to be

sacrificed. The phraseology employed by a statute may fail adequately to express its true intent. The

courts, however, are bound by the lateral expression and it not infrequently happens that the reason of

the law is defeated by strict adherence to the letter. This cannot happen in the case of precedent for the

duty of the Court is to reach the spirit of the decision, the underlying ratio decident. Since it is not the

lateral expression but the reason of the rule that matters, analogical extension is permissible in the case

of precedents. The system thus assumes a flexible character and broadens from precedent to

precedent.

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IMPORTANT QUESTIONS

Q.1. Discuss the importance of jurisprudence in the study of law.

Q.2. What do you mean by law and what are the various kinds of law?

Q.3. Discuss the classification of law.

Q.4. Write short notes on :

i) Legislation as a source of law

ii) Precedent as a source of law

iii) Custom as a source of law

iv) Delegated legislation

Q.5. What do you mean by sources of law? Discuss the importance of each source of law in brief.

Q.6. What do you mean by customs? What are the essentials of a valid custom?

Q.7. When does a custom become law?

Q.8. What do you mean by precedent? What are the various theories of precedent?

Q.9. Discuss the doctrine of precedent with reference to Indian Law?

Q.10. What are merits and demerits of precedent?

Q.11. Why is importance of precedent degrading?

Q.12. Discuss the importance of legislation as source of law.

Q.13. What do you mean by delegated legislation? Why is it important in present scenario?

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