Nature and Sources

of Laws

Content
I.

II.

III.

IV.

V.

Nature and Meaning of Law

87

I. Introduction

87

II. Historical Perspectives

88

III.Schools of Law

97

IV. Function and purposes of law

99

Classification of Law

101

I. International Law

101

II. Municipal Law

102

Sources of Law

106

I. Where does law come from?

107

II. Classification of Sources

107

III.Custom as a source of law

107

IV. Judicial Precedent as a Source of Law

110

V. Legislation as a Source of Law

116

Law Reform

119

I. Need for Law Reform

119

II. Law reforms in India

119

Major works of Jurists

123

Comprehension Questions

124

Activities

125

References

126

UNIT 02: CHAPTER 1

Nature and Meaning of Law

The Case of the Speluncean Explorers:
A famous hypothetical legal case used in the study of law, written by Lon Fuller in 1949 for the
Harvard Law Review.
A team of the five explorers are trapped in a cave. Through radio contact with physicians they are
informed that they will starve to death by the time they are rescued. They cast a dice and elect to
kill and eat one of their own team members to avoid the death of all. The four remaining Spelunkers
are rescued and are all accused for the murder of their fifth member.
In your opinion, should they be acquitted or convicted for murder?

I.

INTRODUCTION
The law and the legal system are very important in
any civilization. In modern times, no one can
imagine a society without law and a legal system.
Law is not only important for an orderly social life
but also essential for the very existence of
mankind. Therefore, it is important for everyone
to understand the meaning of law.
In a layman's language, law can be described as' a
system of rules and regulations which a country or
society recognizes as binding on its citizens,
which the authorities may enforce, and violation
of which attracts punitive action. These laws are
generally contained in the constitutions,
legislations, judicial decisions etc.

Justitia, a Roman goddess of justice, wore a

blindfold and has been depicted with sword
and scales. Representations of the Lady of
Justice in the Western tradition occur in many
places and at many times. Like Justitia, She
too usually carries a sword and scales. Almost
always draped in flowing robes and mature
but not old, she symbolizes the fair and equal
administration of law. without corruption,
avarice, prejudice, or favor.

Jurists and legal scholars have not arrived at a

unanimous definition of law. The problem of Source www.commonlaw.com/Justice.html
defining law is not new as it goes back centuries.
Some jurists consider law as a 'divinely ordered rule' or as 'a reflection of divine reasons'. Law
has also been defined from philosophical, theological, historical, social and realistic angles.
It is because of these different approaches that different concepts of law and consequently
various schools of law have emerged. Jurists hold different perceptions and understanding of
what constitutes the law and legal systems. This chapter examines the various definitions of law
as provided by different jurists.

87

II. HISTORICAL PERSPECTIVE

Plato (left) is carrying a copy of his Timeus, and pointing upwards, which symbolizes his concern with
the eternal and immutable forms. Aristotle (384 BC - 322 BC)(right) is carrying a copy of his
Nicomachean Ethics, and keeping his hand down, which symbolizes his concern with the temporal and
mutable world. It depicts different approaches towards law from ancient times.
Source
The Critical Thinker (TM), 'Plato vs. Aristotle: The Classic Philosophical Duel',http://thecriticalthinker.
wordpress.com/2009/01/12/plato-vs-aristotle/

There are many definitions of law given by various jurists. Some of the important definitions of
law are as follows:
The ancient Greek Philosopher Aristotle defined law 'as an embodiment
of reasons whether in individual or the community'.
Source: http://commons.wikimedia.org/wiki/File:Aristotle_by_Raphael.jpg

Aristotle
(427 BC - 314 BC)

88

British philosopher Jereny Benthan defined the as 'A collection of signs

declarative of a volition conceived or adopted by the sovereign'
Source: http://commons.wikimedia.org/wiki/File:Jeremy_Bentham_ by_J Wright.jpg

Bentham
(1748-1832)

Noted British Jurist John Austin says law is A body of rules determined and enforced by a sovereign political
authority.
Source:http://commons.wikimedia.org/wiki/File:John_Austin.jpg

John Austin
(1790-1859)

Well known British ugal philosopher Herbert Lionel Adolphess Hant

defines law as:
A system of rules, a union of primary and secondary rules. The Primary
rules impose duties on people to behave in certain ways. Secondary
rules, by contrast, pertain to the primary rules.
Source: http://commons.wikimedia.org/wiki/File:H.L._Hart.JPG

H. L. A Hart
(197-1992)

89

German jurict and historian Friendrich Carl Von Savigny said:

Law is a product of the general consciousness of the people.
Source: http://commons.wikimedia.org/wiki/Friedrich_ Carl_von_Savigny

Savigny
(1779-1861)

Distinguished American legal scholar Rosese Pound defined law as:

An organised and critically controlled body of knowledge both of legal
institutions and legal precepts and of the legal order, that is, of the
legal ordering of the society.
Source:http://commons.wikimedia.org/wiki/File:Roscoe_Pound_ca_1916.jpg

Roscoe Pound
(1870-1964)

Oliver Wendell Holmes, noted American jurict said

The prophecies of what Courts will do
pretentious, are what I mean by the law.

in fact, and nothing more

Source:http://commons.wikimedia.org/wiki/File:Oliver_Wendell_Holmes,_1902.jpg

Holmes
(1841-1935)

90

According to American philosopher Ronald Dworkin,

Judges create a rationally integrated and coherent network of legal
principles which is law.
Sources:http://commons.wikimedia.org/wiki/File:RonaldDworkin. jpg

Ronald Dworkin
(1931-2013)
Israeli philosopher Joseph Raz says
Law consists of authoritative positivist considerations enforceable by
the courts.
Source:http://commons.wikimedia.org/wiki/File:JosephRaz_-_20090224.jpg

Joseph Raz
(1939-)

On the basis of the definitions of law as phorided by jurists and legal philosopher over time, one
can understand that there cannot be a universally accepted definition of law as different schools
of law are characteristically different in their approach. For example, the positive school (which
is explained later) does not consider moral values as part of the law, while the natural law school
considers law and morality as inseparable.

III. SCHOOLS OF LAW

The various schools of law are as follows:

Natural Law School

Natural law is generally explained as the 'law of nature, divine law, a law which is eternal and
universal'. However, it has been given different meanings at different points in time. For
instance, it was considered to be associated with theology but at the same time it was also used
for secular purposes. Natural law is believed to exist independent of human will.

91

It is considered natural in the sense that it is not created by man but is found through nature.
Natural law theory varies in its aims and content but there is one central idea. This central idea
states that, there is a higher law based on morality against which the moral or legal validity of
human law can be measured. At the heart of the natural law theory is a belief that there are
certain universal moral laws that human laws may not go against, without losing legal or moral
force.
Natural law theory asserts that there is an essential connection between law and morality. The
law is not simply what is enacted in statutes, and if legislation is not moral, then it is not law.
St. Thomas Aquinas called law without moral content, as 'perversion of law'.

ACTIVITY:
Discuss the connection between law and morality in day-to-day life with examples.
Exponents of natural law believe that law and morality are linked. This view is expressed by the
maxim Lex iniusta non est lex(an unjust law is not a true law). It was also asserted that, if it is not
a true law then there is no need to follow it. According to this view, the notion of law cannot be
fully articulated without some reference to morality.
While it appears that the classical naturalists believed that the law necessarily includes all moral
principles, this argument does not mean that the law is all about moral principles. This is only to
substantiate that the legal norms that are promulgated by human beings are valid only if they are
consistent with morality.
John Finnis (an Australian legal scholar and a Professor of Law at Oxford University [Lon Fuller
(1902 - 1978, a noted legal philosopher and a Professor of Law at Harvard University] seemed to
be against the conceptual naturalist idea, that there are necessary substantive moral
constraints on the content of law. However, Fuller, in contrast to Finnis, believed that the law is
necessarily subject to a procedural morality. Finnis believed that substantive human good may
be grasped through practical reasonableness.
According to Fuller, human activity is necessarily goal-oriented and people engage in various
activities to realize some ends. Fuller also emphasized the fact that, particular human activities
can be understood only in terms of their purposes and ends. Consequently, in view of the fact
that law-making is essentially a purposive activity, it can be understood only in the light of its
indispensable values and purposes.
The principles of Natural law were rejected by Jurists such as Bentham and Austin in the
nineteenth century because of its vague and ambiguous character. However, undue emphasis on
positivism and rejection of morality as an element of law reduced the law into a command of a

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gunman and therefore, failed to satisfy the aspirations of

the people. It was realised that over-emphasis on the
historical approaches to law had led to the rise of fascism
in Italy and Nazism in Germany.
The change in socio-political conditions of the world, like
the rise of materialism after the First World War, shook
the conscience of the western society. It compelled the
twentieth century western legal thinkers to ponder over
the existing legal regimes, so as to provide some
alternatives based on value-oriented ideology and to
check moral degradation ofthe society. These factors led
to the revival of natural law theory in its modified form,
which is different from its traditional form.

The Hart-Fuller debate is a famous

scholarly exchange between Lon Fuller
and H.L.A. Hart which was published in
the Harvard Law Review in 1958 on
morality and law. This debate depicted
the general divide between positivists
and natural theory of law.

Natural law in its new form is value-oriented and valueconscious. It is neither permanent nor everlasting in
character and it is relative, not absolute in nature. For
instance, in modern times procedural as well as
substantive laws have to be just, fair and reasonable.
Generally, the 'rule of law' and 'due process of law' are Source:The Hart-Fuller Debate in the TwentyFirst Century, Bookreview,
considered as new incarnations of natural justice in the
http://www.bsos.umd.edu/gvpt/lpbr/subpage
twentieth century. Rudolf Stammler (1856-1938), a s/reviews/cane0411.htm
German jurist, John Rawls (1921 - 2002), an American
philosopher Kohler (1849 -1919), a German Jurist, and others, contributed to the revival of
natural law in the twentieth century. The principles of natural law have also been inspired by the
emergence of the modern philosophy of human rights.

THE PRINCIPLES OF NATURAL JUSTICE:

In India, the principles of natural justice are firmly grounded in Article 14 & 21 of the Constitution. With
the introduction of the concept of substantive and procedural due process in Article 21, fairness, which
is included in the principles of natural justice, can be read into Article 21. The violation of the principles
of natural justice results in arbitrariness; therefore, violation of natural justice is a violation of the
equality clause of Article 14.
The principle of natural justice encompasses the following two rules: 1.

Nemo judex in causa sua - No one should be a judge in his own cause or, the rule against bias.

2.

Audi alteram partem - Hear the other party or, the rule of fair hearing or, the rule that no one
should be condemned unheard.

Source: http://www.hreat.org/impletter/PRINCIPLESOFNATURALJUSTICE.pdf

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Analytical School:
This school mainly aims to create a scientifically valid system of law, by analyzing legal concepts
and ideas on the basis of empirical or scientific methods. It is also referred to, as the positive or
imperative school of jurisprudence. It came as a reaction against the school of natural law. Most
of the founders of this school like Jeremy Bentham (1748-1832), an English philosopher and
jurist and John Austin (1790-1859), an English jurist and a student of Bentham (also popularly
credited for founding the analytical school of jurisprudence) discarded and rejected natural law
as 'vague and abstract ideas'.
The idea of positivism emphasizes the separation of law and morality. According to the
exponents of this school, law is man-made, or enacted by the legislature. Natural law thinkers
proposed that if a law is not moral, no one is under any duty to obey it, while positivists believe
that a duly enacted law, until changed, remains law and should be so obeyed.
Jeremy Bentham propounded the Utilitarian Principle whereby
the law should aim at "the greatest happiness of the greatest
number". In his work, "Introduction to the Principles of Morals
and Legislation", Bentham expressed his views about morality
and argued that the principle of utility should be the basis of
morality and law. According to him 'utility' promotes pleasure
and prevents pain. He further held that all questions of right
and wrong should be decided on the touchstone of utility.
John Austin propounded that law is the command of the
sovereign, backed by threat of punishment. In his work, 'The
JOHN AUSTIN
Province of Jurisprudence Determined' published in 1832,
Austin made an effort to explain the distinction between law
and morality. According to him, natural law doctrines were responsible for blurring the
distinction between law and morality. To get rid of this confusion he defined law as 'species of
command of sovereign'.
Austin held that command is an expression of desire by a political superior (e.g. king, parliament
etc.) to a political inferior (eg. subjects, citizens). The political inferior shall commit or omit an
act, under an obligation to obey the command and if, the command is disobeyed, then, the
political inferior is liable for punishment. Commands are prescribed modes of conduct by the
'sovereign'. He further viewed sovereign as a person or group of persons, to whom a society gives
habitual obedience and who gives no such obedience to others.
This idea of command and punishment for disobeying the command is the most prominent and
distinctive character of 'positive law'. It differentiates positive law from the 'principles of
morality', which consider law as 'law of God', and from 'positive morality', which considers law as

94

man-made rules of conduct, such as customary rules and international law, etc. 'Principles of
morality' and 'positive morality' do not originate from a sovereign.
However, with the passage of time, the fatality of the analytical school of law was realized and it
was rejected by jurists such as Ronald Dworkin, Fuller and Finnis. The analytical school was
basically rejected because it gave too much emphasis on 'law as a command' and rejected
morality and custom as a source of law. The most powerful criticism about legal positivism
revolves around the premise that it fails to give morality its due importance.
Ronald Dworkin, one of the most noteworthy critics of positivism, rejected the whole
institutional focus of positivism. Dworkin argued that there is one right answer even in hard
cases. According to Dworkin, a legal system is more than just rules; there are principles, policies
and binding legal standards which operate alongside rules.

Historical School
History is considered as the foundation of knowledge in the contemporary era. According to the
followers of the historical school, laws are the creation of interactions between the, local
situation and conditions of the people. The historical school suggests that the law should
conform to the local needs and feelings of the society. It started as a reaction against natural law
and positivism to grow as a form of law that emphasized the irrational, racial and evolutionary
character of law.
Friedrich Carl von Savigny (21 February 1779 - 25 October 1861),a respected and influential
jurist and historian of the 19th century, is considered as the main German proponent of this
school. He propounded that the nature of any particular system of law was a reflection of the
spirit of the people. This was later characterized as 'volksgeist' (German word meaning 'spirit of
the people' or 'national character') by Georg Friedrich Puchta (1798 - 1846, a German jurist).
According to Friedman, a noted jurist, the main features of Savigny's historical school of
jurisprudence can be summarized as follows:
C
Law should be a reflection of the common spirit of the people and their custom.
C
Law is not universal; it is particular like the language of a particular society.
C
Law is not static; it has relationship with the development of the society.
Law is not given by a political superior, but is found or given by the people.
C
Sir Henry James Sumner Maine (August 15, 1822 - February 3, 1888), a British jurist and legal
historian, who pioneered the study of comparative law, primitive law and anthropological
jurisprudence, is the main exponent the of British Historical School of Jurisprudence. He was a
Professor of civil law at the University of Cambridge. He was a member of the Council of the
Governor General of India (1863-69) and he substantially contributed to codification of the

95

Indian law. He is famous for his notable work, Ancient Law: Its Connection with the Early History
of Society, and Its Relation to Modern Ideas (1861). To trace and define such concepts, he drew
upon Roman law, western and eastern European legal systems, Indian law, and Primitive law.
Maine explained that the growth of law took place gradually in various stages under a static
society in the following sequence:
1.

Divine law (law of God/Themis Judgments of the Goddess of justice)

2.

Custom- Priestly class as sole repository of customary law

3.

Era of codification

However, in a progressive society, law evolved through three stages, namely:

C
Fiction
C
Equity
C
Legislation
Themis was the Greek Goddess of Justice and was considered the embodiment of
the divine order, law and custom. Themis signifies divine law in place of human
ordinance. She was the goddess of divine law and sat beside Zeus, the Father of
Gods, to offer advice. She was considered the divine voice who first instructed
mankind in the primal laws of justice and morality.

Even the historical approach is not free from criticism. There are many problems with this
approach and it was rejected on the ground of its vague, parochial and unscientific explanation
of the law.

Sociological School
Exponents of this school consider law as a social phenomenon. It visualizes law from the
perceptions of people in the society. This approach emphasizes on balancing the conflicting
interests in society. The sociological school considers law as a tool for social change. Followers of
this school insist on the fact that, law exists for the needs of the society. The philosophy of the
sociological approach provides an opportunity to social and legal reformers. Roscoe Pound
(1870-1964), an American jurist, was considered as the chief exponent of sociological
jurisprudence in the United States.
Lon Duguit (1859-1928), was a French jurist who studied law at the University of Bordeaux and
was appointed as a Professor in the faculty of law at Caen in 1883. Duguit had a significant
influence on French Public Law. Duguit considered law as a tool for enhancing social solidarity
i.e. interdependence of human beings on one another.

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D. Rudolf von Ihering (1818-1892), a German legal scholar, developed a philosophy of social
utilitarianism that emphasized on the needs of society, which is different from the individualist
approach of the English utilitarian philosopher Bentham.
Eugene Ehrlich (1862-1922) who was an Austrian legal scholar and sociologist of law, emphasized
the importance of social sciences to understand the law, He considered law as a social institution
created to satisfy individual and social wants. Most of the thinkers of the sociological school also
emphasized the fact that law is a tool of social engineering to balance conflicting interests.
According to Roscoe Pound, the main features of the sociological school can be summarized as
follows:
C
It highlights the purpose and function of law rather than its' content
C
Law is a social institution designed for social need
C
Law is a tool to balance conflicting interests of society
The main criticisms against the sociological school are the following:
C
The terms 'social solidarity' and 'social engineering' are vague and create confusion
C
Men and society can be compared with machine
C
Jurists like Duguit overlooked the importance of the State
The concept of Social Engineering revolves around creating an efficient societal
structure which results in maximum satisfaction of wants with minimum level of
wastage. This theory was introduced by Roscoe Pound. According to Pound, 'Law is
social engineering which means a balance between the competing interests in
society.'

Realist School
Realists consider laws made by judges as the real law. They give less importance to the
traditional rules and concepts as real sources of law. Realism is contrary to idealism. It is a
combination of analytical positivism and sociological jurisprudence. Realists do not give much
importance to laws enacted by legislative bodies and consider the judge-made laws as the actual
law.
Realists place great emphasis on the role of judges in the implementation, interpretation and
development of law. Realists believe that the social, economic and psychological background of
a judge plays an important part in his decision-making.

97

Realist school can be further divided into two parts:

i.

American Realism

ii.

Scandinavian Realism

A prominent American jurisprudential scholar Karl Llewellyn (1893-1962), who was associated
with the school of legal realism, had identified some of the main features of the realist school
which are as follows:
C
Law is not static as it keeps on changing
C
Law is a means to a social end
C
Society changes faster than the law
C
Law cannot be certain. Decisions of the courts depend on many factors like the
psychological, social and economic background of the judges
C
Case studies are important and the court room is a laboratory of law
Major Criticisms of the Realist School are:
C
It ignores the importance of legal rules and enactments which can lead to confusion
C
It is incorrect to think that law evolves and develops only through courts
C
Unwarranted emphasis on judge's behaviour in judicial decisions

Oliver Wendell Holmes

Justice Oliver Wendell Holmes was an Associate Justice of the U.S. Supreme Court. He wrote in his
landmark article The Path of Law which appeared in Harvard Law Review [1897]: "the prophecies of
what the courts will do in fact, and nothing more pretentious, are what I mean by the law". In making
this statement, Holmes was suggesting that the meaning of any written law is determined by the
individual judges interpreting them, and until a judge has weighed in on a legal issue, the law is
ultimately little more than an exercise in trying to guess the way a judge will rule in a case.
Holmes explains, "The life of the law has not been logic; it has been experience... The law embodies
the story of a nation's development through many centuries, and it cannot be dealt with as if it
contained only the axioms and corollaries of a book of mathematics."
Justice Oliver Wendell Holmes, Jr.(The Common Law, 1881)

Conclusion:
From the above description of the major approaches or schools of law, it may be interpreted that
these approaches can neither be accepted in totality nor rejected completely. Every school has
its own approach of understanding and explaining law. These theories are products of certain
times and places, which are relevant only in a given setting.

98

Some part or parts of the above enlisted theories might have become outdated or unacceptable
in the present day scenario, but all of those cannot be totally rejected.
The various schools of law are represented diagrammatically in the following manner.

Schools of Law
(please Make This Flowchart In Landscape Mode.)

Natural Law School

Analytical School
of Law

Historical School
of Law

Sociological School
of Law

Jurists/
philosophers:
Bentham, Austin,
Kelsan, Hla Hart
etc.

Jurists/
philosophers:
Savigny, Henry
Maine etc.

Jurists/
philosophers:
Roscoe Pound,
Duguit, Ihering,
Ehrlich etc.

Distinguishing
features/source of
Law:

Distinguishing
features/source of
Law:

Distinguishing
features/source of
Law:

Distinguishing
features/source of
Law:

l
Nature

l
Command

l
Custom

l
Purpose

Jurists/
philosophers:
Aristotle, plato,
Thomas Aquinas,
Montesquieu,
Hobes, Rousseau
etc.

l
Human
l
Divine

Reasons

Sources

of
the sovereign

l
Morality

ignored

l
Common

spirit
of the people

of law
is to balance
conflicting
interests in
the society

Realist School of Law

(american &
Scandinavian Realism )
Jurists/Philosophers:
Jerome Frank, O W
Holmes Alf Ross,
Olivecrona,
Hangerstorm etc.

Distinguishing
features/ source of
Law:
l
Judicial

decisions
are the prime
sources of Law.

IV. FUNCTION AND PURPOSES OF LAW

After discussing and understanding the meaning of the term 'law', it is a natural question to ask
the following questions: Why is there law in the society? What is the need for law? Can a society
be governed smoothly without any kind of law? What is the function and purpose of law? etc.
Functions and purpose of law have been changing with time and place. They depend on the
nature of the state. However, at present in a welfare and democratic state, there are several
important functions of law.
It can be stated that law starts regulating the welfare and other aspects of human life, from the
moment a child is conceived in her mother's womb. In fact, the State interacts with and protects
its citizens throughout their lives, with the help of law.

99

Some of the major functions and purposes of law are listed below:
i.

To deliver justice.

ii.

To provide equality and uniformity.

iii.

To maintain impartiality.

iv.

To maintain law and order.

v.

To maintain social control.

vi.

To resolve conflicts.

vii.

To bring orderly change through law and social reform.

ACTIVITY:
Can you name other functions and purposes of law? Discuss.

100

UNIT 02: CHAPTER 2

Classification of Law
The classification of law is important for the correct and comprehensive understanding of the law.
The following are the benefits of classifying law:
i.

Useful in understanding the interrelation of rules.

ii.

Useful in the systematic arrangements of rules.

iii. Useful for the profession and students of law.

There are several ways of classifying law and the idea of classification of law is not new. Even in
ancient civilizations, the jurists were well aware of the difference between civil and criminal laws.
However, with the passage of time, many new branches have come into existence and therefore, the
old classification has become outdated. Law can be classified in many ways with respect to time and
place. However law may be broadly divided into the following two classes in terms of its usage:
i.

International Law

ii.

Municipal Law

These classes of law are discussed briefly hereafter.

I.

INTERNATIONAL LAW
International law is an important branch of law. It deals with those rules and regulations of
nation which are recognized and are binding upon each other through reciprocity. Many jurist
however, do not give much importance to this branch. In recent times, this branch of law has
grown manifold and has acquired increasing importance on account of globalization and other
related factors.
International law has been further classified as follows:
i.

Public International Law

This branch of law relates to the body of rules and regulations which governs the
relationship between nations. Countries mutually recognise these sets of rules which are
binding on them in their transactions on a reciprocal basis.

ii.

Private International Law

Private international law is that part of law of the State, which deals with cases having a
foreign element. Private international law relates to the rights of private citizens of
different countries. Marriages and adoption of individuals belonging to different nations
fall within its domain.

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Established: 1945
Jurisdiction: Worldwide, 193 member States
Location: The Hague, Netherlands
Authorizing Statute: UN Charter, ICJ Statute
Judge term: 9 years
Number of positions: 15
International Court of Justice,
Hague, Netherlands
Source:
http://en.wikipedia.org/wiki/File:Inter
national_Court_of_Justice.jpg

Current President: Justice Peter Tomka

Indian Member: Justice Dalveer Bhandari
Website: www.icj-cij.org

II. MUNICIPAL LAW

Municipal laws are basically domestic or national laws. They regulate the relationship between
the State and its citizen and determines the relationship among citizens. Municipal law can be
further classified into two segments:

I.

Public Law
Public law chiefly regulates the relationship between the State and its' subjects. It also
provides the structure and functioning of the organs of States. The three important
branches of public law are the following:
(a) Constitutional Law: Constitutional law is considered to be the basic as well as the
supreme law of the country. The nature of any State is basically determined by its
Constitution. It also provides the structure of the government. All the organs of states
derive their powers from the Constitution. Some countries, such as India, have a
written Constitution, while countries such as the United Kingdom have an 'uncodified
Constitution'. In India, the fundamental rights are granted and protected under the
Constitution.
(b) Administrative Law: Administrative law mainly deals with the powers and functions
of administrative authorities - government departments, authorities, bodies etc. It
deals with the extent of powers held by the administrative bodies and the mechanism
whereby their actions can be controlled. It also provides for legal remedies in case of
any violation of the rights of the people.

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(c) Criminal Law: Criminal law generally deals with acts which are prohibited by law and
defines the prohibited act as an offence. It also prescribes punishments for criminal
offences. Criminal law is very important for maintaining order in the society, and for
maintaining peace. It is considered a part of public law, as crime is not only against the
individual but against the whole society. Indian Penal Code, 1860 (also known as IPC) is
an example of a criminal law legislation, in which different kinds of offences are
defined and punishments prescribed.

ACTIVITY:
Collect information on any one recent/ongoing case pertaining mainly to
criminal law. Make a portfolio.
II.

Private Law
This branch of law defines, regulates, governs and enforces relationships between
individuals and associations and corporations. In other words, this branch of law deals with
the definition, regulation and enforcement of mutual rights and duties of individuals. The
state intervenes through its judicial organs (e.g. courts) to settle the dispute between the
parties. Private or Civil law confers civil rights which are administered and adjudicated by
civil courts. Much of the life of a society is regulated by this set of private laws or civil
rights. This branch of law can be further classified into the following:
(a) Personal Law: It is a branch of law related to marriage, divorce and succession
(inheritance). These laws are based on religion, ritual and customs of marriage,
divorce, and inheritance. In such matters, people are mostly governed by the Personal
laws laid down by their religions. For example, the marriage of Hindus is governed by
Personal laws like the Hindu Marriage Act, 1955 while Muslim marriages are governed
by the Muslim personal law based on a Muslim customary law which is largely uncodified.
(b) Property Law: This branch of law deals with the ownership of immovable and
movable properties. For example, the Transfer of Property Act, 1882, deals with
transfer of immovable property, whereas the Sales of Goods Act, 1930, deals with
movable property.
(c) Law of Obligations: This branch of the law pertains to an area where a person is
required to do something because of his promise, contract or law. It puts an obligation
on the person to perform certain actions which generally arise as a consequence of an
enforceable promise or agreement. If someone violates his promise, that promise may
be enforced in a court of law. According to the Indian Contract Act, 1872, a contract is
an agreement which is enforceable by law. In other words, a contract is an

103

agreement with specific terms between two or more persons in which there is a
promise to do something in lieu of a valuable profit which is known as consideration.
For example,'A' has offered his mobile phone to 'B' for Rs.15,000. 'B' agreed to
purchase the same. This has created a legal relationship" both have made a promise
which is enforceable by law.
A valid contract should have the following elements:

LAW OF OBLIGATIONS: LAW OF CONTRACTS

a)

An offer

b)

An acceptance of that offer which results in a meeting of the minds

c)

A promise to perform

d)

A valuable and legal consideration (which can be a promise or payment in some

form)

e)

A time or event when performance must be made (meet commitments)

f)

Terms and conditions for performance, including fulfilling promises

g)

Performance

Law of Torts: Tort is a civil wrong. This branch of law creates and provides remedies for civil
wrongs that do not arise out of contractual duties. A tort deals with negligence cases as well as
intentional wrongs which cause harm. An aggrieved person may use Law of Tort to claim damages
from someone who has caused the wrong or legal injury to him/ her. Torts cover intentional acts
and accidents.
For instance, if 'A' throws a stone and it hits another person namely 'B' on the head, 'B' may sue 'A"
for the injury caused by the accident.

ACTIVITY:
Discuss examples concerning law of obligations and law of torts from everyday life.

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CLASSIFICATION OF LAW
(Please present this flowchart in landscape mode)

LAW

MUNICIPAL LAW

INTERNATIONAL LAW

PUBLIC
INTERNATIONAL LAW

PRIVATE
INTERNATIONAL LAW

PUBLIC LAW

PRIVATE LAW

Constitutional law

Personal law

Administrative law

Property law

Criminal law

Contract Law/Law of
Torts

The classification, provided is not an exhaustive and conclusive one. It is just an attempt to develop a
basic understanding of the classification of law. With the passage of time, many new branches of law
have emerged and there is always scope for revising and classifying laws based on the new
developments in the field of law.

105

UNIT 02: CHAPTER 3

Sources of Law
I.

WHERE DOES LAW COME FROM?

To have a clear and complete understanding of law, it is essential to understand the sources of
law. Sources of law mean the sources from where law or the binding rules of human conduct
originate. In other words, law is derived from sources. Jurists have different views on the origin
and sources of law, as they have regarding the definition of law. As the term 'law'has several
meanings, legal experts approach the sources of law from various angles.
For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine
consider custom as the most important source of law. Natural law school considers nature and
human reason as the source of law, while theologians consider the religious scripts as sources of
law. Although there are various claims and counter claims regarding the sources of law, it is true
that in almost all societies, law has been derived from similar sources.

II. CLASSIFICATION OF SOURCES

Salmond, an English Jurist, has classified sources of law into the following categories:
Formal Sources of Law: These are the sources from which law derives its force and
C
validity. A law enacted by the State or Sovereign falls into this category.
Material Sources of Law: It refers to the material of law. In simple words, it is all about the
C
matter from where the laws are derived. Customs fall in this category of law.
However, if we look around and examine the contemporary legal systems, it may be seen that
most legal systems are based on legislations. At the same time, it is equally true that sometimes
customs play a significant role in the legal system of a country. In some of the legal systems,
court decisions are binding as law.
On the basis of the above discussion, three major sources of law can be identified in any modern
society are as follows:
i.

Custom

ii.

Judicial precedent

iii.

Legislation

III. CUSTOM AS A SOURCE OF LAW

A custom, to be valid, must be observed continuously for a very long time without any
interruption. Further, a practice must be supported not only for a very long time, but it must

106

also be supported by the opinion of the general public and morality. However, every custom
need not become law. For example, the Hindu Marriages Act, 1955 prohibits marriages which
are within the prohibited degrees of relationship. However, the Act still permits marriages
within the prohibited degree of relationship if there is a proven custom within a certain
community.
Custom can simply be explained as those long established practices or unwritten rules which
have acquired binding or obligatory character.
In ancient societies, custom was considered as one of the most important sources of law; In fact
it was considered as the real source of law. With the passage of time and the advent of modern
civilization, the importance of custom as a source of law diminished and other sources such as
judicial precedents and legislation gained importance.
Can Custom be law?
There is no doubt about the fact that custom is an important source of law. Broadly, there are two
views which prevail in this regard on whether custom is law. Jurists such as Austin opposed
custom as law because it did not originate from the will of the sovereign. Jurists like Savigny
consider custom as the main source of law. According to him the real source of law is the will of
the people and not the will of the sovereign. The will of the people has always been reflected in
the custom and traditions of the society. Custom is hence a main source of law.
Saptapadi is an example of customs as a source of law. It is the most importantrite of a Hindu
marriage ceremony. The word, Saptapadi means "Seven steps". After tying the Mangalsutra,
the newly-wed couple take seven steps around the holy fire, which is called Saptapadi.
The customary practice of Saptapadi has been incorporated in Section 7 of the Hindu
Marriage Act, 1955.

Kinds of Customs
Customs can be broadly divided into two classes:
i.

Customs without sanction: These kinds of customs are non-obligatory in nature and are
followed because of public opinion.

ii.

Customs with sanction: These customs are binding in nature and are enforced by the
State. These customs may further be divided into the following categories:
(a)

Legal Custom: Legal custom is a custom whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts. Legal custom may be further
classified into the following two types:

107

General Customs: These types of customs prevail throughout the territory of the
C
State.
Local Customs: Local customs are applicable to a part of the State, or a
C
particular region of the country.
(b)

Conventional Customs: Conventional customs are binding on the parties to an

agreement. When two or more persons enter into an agreement related to a trade, it
is presumed in law that they make the contract in accordance with established
convention or usage of that trade. For instance an agreement between landlord and
tenant regarding the payment of the rent will be governed by convention prevailing
in this regard.

ACTIVITY:
Think of a popular custom which is not translated into law. What are its merits and demerits?

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be recognized and
enforced by the courts. The jurists and courts have laid down some essential tests for customs to
be recognized as valid sources of law. These tests are summarized as follows:
Antiquity: In order to be legally valid customs should have been in existence for a long
C
time, even beyond human memory. In England, the year 1189 i.e. the reign of Richard I
King of England has been fixed for the determination of validity of customs. However, in
India there is no such time limit for deciding the antiquity of the customs. The only
condition is that those should have been in practice since time immemorial.
Continuous: A custom to be valid should have been in continuous practice. It must have
C
been enjoyed without any kind of interruption. Long intervals and disrupted practice of a
custom raise doubts about the validity of the same.
Exercised as a matter of right: Custom must be enjoyed openly and with the knowledge of
C
the community. It should not have been practised secretly. A custom must be proved to be a
matter of right. A mere doubtful exercise of a right is not sufficient to a claim as a valid
custom.
Reasonableness: A custom must conform to the norms of justice and public utility. A
C
custom, to be valid, should be based on rationality and reason. If a custom is likely to cause
more inconvenience and mischief than convenience, such a custom will not be valid.
Morality: A custom which is immoral or opposed to public policy cannot be a valid custom.
C
Courts have declared many customs as invalid as they were practised for immoral purpose

108

or were opposed to public policy. Bombay High Court in the case of Mathura Naikon v. Esu
Naekin, ((1880) ILR 4 Bom 545) held that, the custom of adopting a girl for immoral
purposes is illegal.
C
Status with regard to: In any modern State, when a new legislation is enacted, it is
generally preferred to the custom. Therefore, it is imperative that a custom must not be
opposed or contrary to legislation. Many customs have been abrogated by laws enacted by
the legislative bodies in India. For instance, the customary practice of child marriage has
been declared as an offence. Similarly, adoption laws have been changed by legislation in
India.

ACTIVITY:
Trace the developments relating to the Property Rights of Women with special reference to the
Hindu Women's Right to Property Act, 1937; Hindu Succession Act, 1956 and Hindu Succession
(Amendment) Act, 2005.

Importance of custom as a source of law in India

Custom was the most important source of law in ancient India. Even the British initially adopted
the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in
particular, the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922 PC
59) observed and underlined the importance of custom in moulding the law. At the same time, it
is important to note that customs were not uniform or universal throughout the country. Some
regions of the country had their own customs and usages.
These variances in customs were also considered a hindrance in the integration of various
communities of the country. During our freedom struggle, there were parallel movements for
social reform in the country. Social reformers raised many issues related to women and children
such as widow re-marriage and child marriage.
After independence and the enactment of the Constitution, the Indian Parliament took many
steps and abrogated many old customary practices by some progressive legislation. Hindu
personal laws were codified and the Hindu Marriage Act, 1955 and the Hindu Adoption Act, 1955,
were adopted. The Constitution of India provided a positive environment for these social
changes. After independence, the importance of custom has definitely diminished as a source of
law and judicial precedent, and legislation has gained a more significant place. A large part of
Indian law, especially personal laws, however, are still governed by the customs. Hindu Personal
Laws that have been codified are as follows:

109

Hindu Personal Laws

a)

Hindu Marriage Act, 1955

b)

Hindu Succession Act, 1956,

c)

Hindu Minority and Guardianship Act. 1956 and

d)

Hindu Adoptions and Maintenance Act, 1956

IV. JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow. This
binding character of the previously decided cases is important, considering the hierarchy of the
courts established by the legal systems of a particular country. In the case of India, this hierarchy
has been established by the Constitution of India.
Judicial precedent is an important source of law, but it is neither as modern as legislation nor is it
as old as custom. It is an important feature of the English legal system as well as of other common
law countries which follow the English legal system.

ACTIVITY:
Find out the name of countries which follow the English Common Law system?
In most of the developed legal systems, judiciary is considered to be an important organ of the
State. In modern societies, rights are generally conferred on the citizens by legislation and the
main function of the judiciary is to adjudicate upon these rights. The judges decide those
matters on the basis of the legislations and prevailing custom but while doing so, they also play a
creative role by interpreting the law. By this exercise, they lay down new principles and rules
which are generally binding on lower courts within a legal system.
Given this background, it is important to understand the extent to which the courts are guided by
precedents. It is equally important to understand what really constitutes the judicial decision in
a case and which part of the decision is actually binding on the lower courts.

DOCTRINE OF PRECEDENT IN INDIA - A BRITISH LEGACY

Pre-Independence:
According to Section 212 of the Government of India Act, 1919, the law laid down by Federal
Court and any judgment of the Privy Council was binding on all courts of British India. Hence,
Privy Council was supreme judicial authority - AIR 1925 PC 272.

110

Post-Independence:
Supreme Court (SC) became the supreme judicial authority and a streamlined system of
courts was established.
1) Supreme Court:
G
Binding on all courts in India
G
Not bound by its own decisions, or decisions of PC or Federal Court - AIR 1991 SC 2176
2) High Courts:
G
Binding on all courts within its own jurisdiction
G
Only persuasive value for courts outside its own jurisdiction.
G
In case of conflict with decision of same court and bench of equal strength, referred
to a higher bench.
G
Decisions of PC and federal court are binding as long as they do not conflict with
decisions of SC.
3) Lower Courts:
G
Bound to follow decisions of higher courts in its own state, in preference to High
Courts of other states.
Source: http://www.hcmadras.tn.nic.in/jacademy/article/Law%20of%20Pre%20by%20MSK%20Adv.pdf

Judicial decisions can be divided into following two parts:

(I) Ratio decidendi (Reason of Decision):'Ratio decidendi' refers to the binding part of a
judgment. 'Ratio decidendi' literally means reasons for the decision. It is considered as the
general principle which is deduced by the courts from the facts of a particular case. It
becomes generally binding on the lower courts in future cases involving similar questions of
law.
(ii) Obiter dicta (Said by the way): An 'obiter dictum' refers to parts of judicial decisions which
are general observations of the judge and do not have any binding authority. However,
obiter of a higher judiciary is given due consideration by lower courts and has persuasive
value.
Having considered the various aspects of the precedent i.e. ratio and obiter, it is clear that the
system of precedent is based on the hierarchy of courts. Therefore, it becomes important to
understand the hierarchy of courts in order to understand precedent.
Every legal system has its own distinct features. Therefore, the doctrine of precedent is applied

111

differently in different countries. In India, the doctrine of precedent is based on the concept of
hierarchy of courts.
The modern system of precedent developed in India during the British rule. It was the British who
introduced the system of courts in India. By the Regulating Act of 1773, a Supreme Court was
established at Calcutta (Kolkata). Later on, other Supreme Courts were established in other
presidency towns also. After that, High Courts were established in provinces. However, there
was no hierarchy of courts between the Supreme Court and High Courts, and they were
independent of one another.
The hierarchy of courts could be established only when the judicial committee of the Privy
Council became the final appellate tribunal. Another milestone regarding the hierarchy of
courts was the Government of India Act, 1935, which established the Federal Court. Therefore,
as far as hierarchy of courts in India before Independence was concerned, the Privy Council was
the final appellate court while other courts below it like the Federal Court, High Court, the
Presidency and Moffussil courts were bound to follow the decisions of their superior courts.
The flow chart below shows the general hierarchy of courts in British India.

HIERARCHY OF COURTS IN BRITISH INDIA

Privy Council

Federal Court

High Courts

Presidency Court (in town)

Mofussil Court(in district)

However, post-independence, India adopted its own Constitution, which provided for a
hierarchical judicial system that is pyramidal in nature. Under the Constitution of India, a single
monolithic unified command of the judiciary has been established. The Supreme Court of India,
which was established by the Constitution of India, came into existence on 28 January 1950,
under Article 124(1) of the Constitution of India.
The Supreme Court replaced the Federal Court established by the Government of India Act,
1935. The Supreme Court of India is the Apex Court in the hierarchy of courts, followed by the
High Courts at the State level. Below them are the District Courts and Sessions Court. The

112

structure of the judiciary in all states is almost similar, with little variation in nomenclature of
designations.
The Judicial Committee of the Privy Council (JCPC) is one of
the highest courts in the United Kingdom. Established by the
Judicial Committee Act, 1833, to hear appeals formerly
heard by the King in Council (s. 3), it is the highest court of
appeal (or court of last resort) for several independent
Commonwealth countries, the British Overseas Territories
and the British Crown dependencies. It is often referred to as
the Privy Council, as in most cases appeals are made to "Her
Majesty in Council" (i.e. the British monarch as formally
advised by her Privy Counsellors), who then refers the case to
the Judicial Committee for 'advice'.The 'report' of the
Judicial Committee is always accepted by the Queen in
Council as judgment. The panel of judges (typically five in
number) hearing a particular case is known as 'the Board'.
Court 3 in Middlesex Guildhall, the normal
location for Privy Council hearings
Source:http://en.wikipedia.org/wiki/Judicial_
Committee_of_the_Privy_Council

The next flow chart explains the general hierarchy of courts in India:

HIERARCHY OF CRIMINAL JUSTICE SYSTEM

Supreme Court

High Court

Sessions Judge and Additional Sessions Judge

Assistant Sessions Judge

Chief Judicial Magistrate

Judicial Magistrate
of the Class

Chief Metropolitan Magistrate

Special Judicial
Magistrate

113

HIERARCHY OF CIVIL JUDICIAL SYSTEM

Supreme Court

High Court

District Court and Additional District Judges

Subordinate Judge Class I

Subordinate Judge Class II

Court of Small Causes

for metropolitan cities

Munsiff's Court or Court

of sub Judge III class

Under the mentioned hierarchy of courts, the decisions given by the Supreme Court are binding
on all the courts throughout the territory of India. While the decision given by the High Courts are
binding on the subordinate courts within the jurisdiction of that particular High Court, the
decisions of the High Courts are not binding beyond their respective jurisdictions.
The decisions of the High Courts, however, have persuasive value for the other High Courts and
the Subordinate Courts beyond their jurisdiction. It is important to note that the Supreme Court
is not bound by its previous decisions; with an exception that a smaller bench is bound by the
decision of the larger bench and that of the co-equal bench.

Do Judges make Law?

Discussion in the foregoing paragraphs regarding the hierarchy of courts
and the binding authority of decisions of the Supreme Courts in the lower
courts raises another important question regarding the role of judges in
law-making. This part of the topic deals with the fundamental question. Do
judges make law?
The Indian Constitution confers power on the legislature to make law, while
the judiciary has the power to examine the constitutionality of the law
enacted by the legislature. The courts also adjudicate upon the rights and
duties of citizens, and further interpret the provisions of the Constitution
and other statutes.

114

Justice Harilal
Jekisundas Kania was
the First Chief Justice of
India Source:
http://supremecourtofi
ndia.nic.in/judges/rcji/
01hjkania.htm

Through these processes, the Courts create new rights for the citizens. By this exercise, the
judiciary makes additions to the existing laws of the country. It is argued that while doing this,
judges actually make law. There are two views regarding this issue. One set of jurists say that
judges do not make the law but that they simply declare the existing law. Another set of jurists
say that judges do make the law.
Jurists like Edward Coke and Mathew Hale are of the opinion that judges do not make law.
According to them judicial decisions are not sources of law but, they are simply the proof of what
the law is. Judges are not law-givers, but they discover law. At the same time jurists like Dicey,
Gray, Salmond are of the opinion that judges do make law. They hold the view that judges, while
interpreting the law enacted by the legislative bodies, contribute to the existing body of law. A
large part of the English law is judge-made law.
The above arguments seem to be complementary. It can be inferred that judges do not make the
law in the same manner in which, legislative bodies do. Judges work on a given legal material
passed as law by the legislature. While declaring the law, judges interpret the 'legislation' in
question and play a creative role. By this creative role, judges have contributed significantly to
the development of law.
In the Indian context, former judges of the Supreme Court of India like Justice P.N. Bhagwati and
Justice Krishna Iyer enlarged the meaning and scope of various provisions of the Constitution
through their creative interpretation of the legal text. The Supreme Court, too in its role as
through an activist, has created many new rights such as the: right to privacy, right to live in a
pollution free environment, right to livelihood etc.
The Right to Education has received considerable impetus during the last decade as a result of
the concerted effort of many groups and agencies towards ensuring that all children in India
receive at least minimum education, irrespective of their socio-conomic status and their
ability to pay for education, in a situation of continuous impoverishment and erosion of basic
needs. In a way, the right to education is the culmination of efforts made possible by judicial
interpretations and a Constitutional amendment.
Source:http://www.ncpcr.gov.in/Acts/Fundamental_Right_to_Education_Dr_Niranjan_Aradhya_ArunaKashyap.pdf

These new rights were created only by way of interpreting Article 21 (Right to Life) of the
Constitution of India. These rights developed by the courts are not in any sense lesser than the
laws enacted by the legislative bodies. Therefore, it can be concluded that the judicial
precedents are important sources of law in modern society and judges do play a significant
role in law-making.

115

V. LEGISLATION AS A SOURCE OF LAW

In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means "to
make" or "set". Therefore, the word 'legislation' means the 'making of law'.
The importance of legislation as a source of law can be measured from the fact that it is backed
by the authority of the sovereign, and it is directly enacted and recognised by the State. The
expression 'legislation' has been used in various senses. It includes every method of law-making.
In the strict sense it means laws enacted by the sovereign or any other person or institution
authorised by him.

Kinds of Legislation
The chart below explains the types of legislation:
Legislation

Supreme Legislation
(Laws passed by Indian
Parliament)

Autonomous
Law

Judicial
Rules

Subordinate Legislation

Local Law
(Eg. Rule by Panchayati
Raj Institution

Colonial Law
Eg. Government
of India Act, 1935

Executive
legislation

The kinds of legislation can be explained as follows:

(i)

116

Supreme Legislation: When the laws are directly enacted by the sovereign, it is
considered as supreme legislation. One of the features of Supreme legislation is that, no
other authority except the sovereign itself can control or check it. The laws enacted by the
British Parliament fall in this category, as the British Parliament is considered as sovereign.
The law enacted by the Indian Parliament also falls in the same category. However in India,
powers of the Parliament are regulated and controlled by the Constitution, through the
laws enacted by it are not under the control of any other legislative body.

(ii)

Subordinate Legislation: Subordinate legislation is a

legislation which is made by any authority which is
subordinate to the supreme or sovereign authority. It is
enacted under the delegated authority of the sovereign.
The origin, validity, existence and continuance of such
legislation totally depends on the will of the sovereign
authority. Subordinate legislation further can be
classified into the following types:-

Indian Parliament
Source:
http://www.parliamentmuseum.org/gree
tings/greetings.php?id=4

(a)

Autonomous Law: When a group of individuals

recognized or incorporated under the law as an
autonomous body, is conferred with the power to make rules and regulation, the laws
made by such body fall under autonomous law. For instance, laws made by the bodies
like Universities, incorporated companies etc. fall in this category of legislation.

(b)

Judicial Rules: In some countries, judiciary is conferred with the power to make
rules for their administrative procedures. For instance, under the Constitution of
India, the Supreme Court and High Courts have been conferred with such kinds of
power to regulate procedure and administration.

(c)

Local laws: In some countries, local bodies are recognized and conferred with the
law-making powers. They are entitled to make bye-laws in their respective
jurisdictions. In India, local bodies like Panchayats and Municipal Corporations have
been recognized by the Constitution through the 73rd and 74th Constitutional
amendments. The rules and bye-laws enacted by them are examples of local laws.

(d)

Colonial Law: Laws made by colonial countries for their colonies or the countries
controlled by them are known as colonial laws. For a long time, India was governed by
the laws passed by the British Parliament. However, as most countries of the world
have gained independence from the colonial powers, this legislation is losing its
importance and may not be recognized as a kind of legislation.

(e)

Laws made by the Executive: Laws are supposed to be enacted by the sovereign and
the sovereignty may be vested in one authority or it may be distributed among the
various organs of the State. In most of the modern States, sovereignty is generally
divided among the three organs of the State. The three organs of the State namely
legislature, executive and judiciary are vested with three different functions. The
prime responsibility of law-making vests with the legislature, while the executive is
vested with the responsibility to implement the laws enacted by the legislature.
However, the legislature delegates some of its law-making powers to executive

117

organs which are also termed delegated legislation. Delegated legislation is also a
class of subordinate legislation. In welfare and modern states, the amount of
legislation has increased manifold and it is not possible for legislative bodies to go
through all the details of law. Therefore, it deals with only a fundamental part of the
legislation and wide discretion has been given to the executive to fill the gaps. This
increasing tendency of delegated legislation has been criticized. However, delegated
legislation is resorted to, on account of reasons like paucity of time, technicalities of
law and emergency. Therefore, delegated legislation is sometimes considered as a
necessary evil.

118

UNIT 02: CHAPTER 4

Law Reform
I.

Need for Law Reform

There is a strong relationship between the law and the society. Law has to be dynamic. It cannot
afford to be static. In fact, law and society act and react upon each other.
Law reform is the process by which the law is adapted and advanced over a period of time
response to changing social values and priorities. The law cannot remain stagnant. Law has to
respond to the social concerns and has to provide amicable solutions to the problems that keep
coming up before the society. It has to respond to social, economic or technological
developments. Law reforms also help to shape democracies to suit changing political and legal
environments. Law reform is not a one-time process but a tedious and gradual process.

II.

Law reforms in India

Law reforms in India can be broadly classified into two periods, which are as follows:
i)

Pre-independent India law reforms

ii)

Post-independent India law reforms

Before the advent of British rule, the Indian society was by and large governed by its customary
law, either based on Hindu Dharmashastra or Islamic religious scripts. These customary laws
were followed by the rulers and the ruled. Customary laws were considered as rigid and averse
to the idea of social change.
The East India Company introduced the western legal system as well as legal reforms in India.
Prior to the First War of Independence in 1857, the East India Company ruled India under the
permission of the British crown, and later on the British crown governed India till 1947. During
the British Raj, i.e. from 1600 A.D to 1947 there were major changes in political, economic,
administrative and legal fields.
Modern courts were established by the enactment of various Acts such as the Regulating Acts,
1773, the Government of India Act 1935, etc. Further, well accepted principles of English law
like justice, equity, and good conscience were used by the courts in India for their decisions.
British administrators like Warren Hastings (1732-1818), the first Governor-General of India,
Cornwallis (1738-1805), a British Army officer and colonial administrator, who served as a civil
and military governor in India, and is known for his contribution to the policy for the Permanent
Settlement and William Bentinck (1774-1839), a British statesman, who served as GovernorGeneral of India from 1828 to 1835, played crucial roles in improving the Civil and Criminal
Justice System in pre-independent India.

119

A major milestone in law reform during the British Raj, was the
establishment of the Law Commission. The first Law Commission
was established in 1834 under the Charter Act of 1833, under the
Chairmanship of Thomas Babington Macaulay.
The major contribution of the Law Commission was the
recommendation on the codification of the penal code and the
criminal procedure code. Thereafter, the Second, Third and Fourth
Law Commissions were established in the years 1853, 1861 and 1879
respectively. The Indian Code of Civil Procedure, 1908, the Indian
Contract Act, 1872, the Indian Evidence Act, 1872 and the Transfer
of property Act, 1882, are major contributions of these above Law
Commissions.

Post-Independent India:

Lord Macaulay, 1800-1859,

came to India in 1834 as a
member of the Supreme
Council of India when William
Bentinck was the GovernorGeneral of India. He stayed in
India till early 1838. However,
during his short stay Macaulay
had left his unforgettable
imprint on the Indian legal
system which made a long
term impact on the Indian
society.

Freedom brought the winds of change and an ideological shift in

post-colonial India. This change was very visible in the field of law
reform as well. In Independent India, the newly enacted
Constitution and Principles enshrined under it were the main guiding
forces of law. The Fundamental Rights and Directive Principles of
State Policies are now the basis for any social change. After Independence, the constitution
under Article 372, recognized the pre-constitutional laws. However, there were demands from
various quarters to have a fresh look at the colonial laws. Responding to the feeling of the Indian
masses, the government constituted the First Law Commission of India under the chairmanship
of the then Attorney General, Mr. M.C Setalvad. Since then, twenty Law Commissions have been
constituted. As many as 243 reports have been submitted by the Law Commissions till 2012. The
Twentieth Law Commission has been set up by the Government in 2013, under the chairmanship
of Justice D. K. Jain. The term of the Twentieth Law Commission will be upto 2015. Some of the
important reports submitted by the various Law Commissions are shown in the table below:

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SUBJECT OF THE REPORT

REPORT
NO.

LAW COMMISSION AND THE

YEAR IN WHICH REPORTS
WERE SUBMITTED

14

Reform of Judicial Administration.

1st Law Commission(1958)

15

Law Relating To Marriage And Divorce Amongst Christians In India.

2nd Law Commission(1960)

27

The Code Of Civil Procedure, 1908.

3rd Law Commission(1964)

35

Capital Punishment.

4th Law Commission(1967)

42

Indian Penal Code.

5th Law Commission(1971)

59

Hindu Marriage Act, 1955 And Special Marriage Act, 1954.

6th Law Commission(1974)

69

The Indian Evidence Act, 1872.

7th Law Commission(1977)

71

The Hindu Marriage Act, 1955- Irretrievable Breakdown Of

Marriage As A Ground for Divorce.

8th Law Commission(1978)

84

Rape And Allied Offences-Some Questions Of Substantive Law,

Procedure And Evidence.

9th Law Commission(1980)

101

Freedom Of Speech And Expression Under Article 19 of The

Constitution: Recommendation to extend it to Indian
Corporations.

10th Law Commission(1984)

131

Role Of Legal Profession In Administration Of Justice.

11th Law Commission(1988)

135

Women In Custody.

12th Law Commission (1989)

152

Custodial Crimes.

13th Law Commission (1994)

157

The Narcotics Drugs And Psychotropic Substances Act,

1985(Act No. 61 Of 1985).

14th Law Commission (1997)

170

The Reform Of Electoral Laws

15th Law Commission (1999)

177

Law Relating To Arrest

16th Law Commission (2001)

200

Trial By Media: Free Speech Vs. Fair Trial Under Criminal

Procedure (Amendments To The Contempt of Court Act, 1971)

17th Law Commission (2006)

230

Reforms In The Judiciary - Some Suggestions

18th Law Commission (2009)

241

Passive Euthanasia - A Relook

19th Law Commission (2012)

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A survey of the subject of the tabulated reports reflects the wide range of issues that the Law
Commission of India has dealt with. It also indicates that the government is equally aware and
concerned about the need for timely reform in laws, in order that law may respond to the
changing needs of society. However, in recent years, economic reforms have brought about many
changes in the Indian society. New categories of crimes including white-collar crimes, crimes
against women and economic inequality in particular have to be tackled on an urgent basis. The
Law Commission therefore occupies a central role in law reforms in India.

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UNIT 02: CHAPTER 5

Major Works of Jurists

I.

Natural Law School:

1.

St. Thomas Aquinas- Commentary on the Sentences; On Being and Essence; Against Those
Who Assail the Worship of God and Religion.

2.

Lon Fuller- Law in Quest of Itself; Basic Contract Law; Problems of Jurisprudence; The
Morality of Law; Legal Fictions; Anatomy of Law.

3.

Rudolf Stammler- The Theory of Justice.

4.

John Rawls- A Theory of Justice; Political Liberalism; The Law of Peoples;Justice as

Fairness.

II. Analytical School of Law:

5.

Jeremy Bentham- Fragment on Government; An Introduction to the Principles of Morals

andLegislation; The limits of jurisprudence defined.

6.

John Austin -The Province of Jurisprudence Determined; Lectures on Jurisprudence.

7.

H.L.A Hart -The Concept of Law; Liberty and Morality; The Morality of the Criminal Law;
Punishment and Responsibility; Essays in Jurisprudence and Philosophy.

8.

Mathew H.Kramer -Defense of Legal Positivism: Law Without Trimmings.

III. Historical School of Law:

9.

Savigny - The law of possession; On the vocation of our ages for legislation and
jurisprudence.

10.

Henry Maine - Ancient Law; Village-Communities; Early History of Institutions; Popular.

IV. Sociological School of Law:

11.

Roscoe Pound - Outlines of Lectures on Jurisprudence; The Spirit of the Common Law; Law
and Morals; Criminal Justice in America.

12.

Duguit -Treatise on Constitutional Law.

13.

Eugene Ehrlich -Fundamental Principles of the Sociology of Law.

14.

Rudolf von Ihering -Law as a Means to an End; The Struggle for Law.

V. Realist School of Law:

15.

Jerome Frank - Law and the Modern Mind; Courts on Trial.

16.

Justice Oliver Wendell Holmes -The Common Law

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Comprehension Questions
1)

Differentiate between The Natural Law School and the Analytical Law School.

2)

What is the need for law in a society? Can a country and its citizens be governed without any
kind of law?

3)

Discuss the philosophy of the Sociological approach to law.

4)

What are the main features of the Realist School?

5)

What are the benefits of classifying law? How many units are they classified into? Describe each,
briefly.

6)

Do you think custom as a source of law in India is relevant even during present times? Support
your answer with appropriate reason and examples.

7)

What do you understand by the term judicial precedent?

8)

Define : i) Ratio Decidendi ii) Obiter Dicta.

9)

Do judges play an important role in law-making? Discuss.

10)

What do you understand by the term legislation? Briefly describe the types of legislation.

11)

Why is delegated legislation considered a necessary evil?

12)

Law reform is a tedious and gradual process. Discuss.

13)

Trace the law reforms in Pre and Post-Independence India.

124

Activities
1)

How do you find out whether a society has a very good legal system or not? What criteria should
inform your opinion? Divide your class into two sections and hold a discussion. You may also
w a t c h s o m e o f t h e v i d e o s p o s t e d b y Pr o f e s s o r M i c h a e l S a n d e l a t
http://www.justiceharvard.org/watch/in guiding your debate.

Case Study:
2)

Trace the historical development of Lok Pal Bill. Is there a need for Lok Pal bill in our country?

3)

What is the need for the Right to Information in today's context?

125

References
Books:
1.

Austin, Lectures on Jurisprudence, 1904.

2.

Black's Law Dictionary, (1912).

3.

C.K. Allen, Law in the Making, 1964.

4.

Dhyani, fundamentals of Jurisprudence, 1997.

5.

Dias, jurisprudence, 5th ed., 1985.

6.

Fitzgerald P.J: Salmond on Jurisprudence, 12th ed.,1966.

7.

Friedman: Legal Theory, 5th ed., 1967, Stevens & Sons, London.

8.

Fuller, Lon L.: Anatomy of Law, 1968.

9.

Fuller, Lon L.: Problems of jurisprudence-Brooklyn, Foundation Press, 1949.

10. Fuller, L., The Morality of law 1964.

11. Hart, Concept of Law, 1961.
12. Henry Maine, Ancient law, 1946.
13. Holmes: The common Law, 1963.
14. Lloyd, Introduction to Jurisprudence, 1959.
15. Paton, G.W.: Text Book of Jurisprudence, 3rd ed., Oxford University Press, 1964.
16. Paranjape N.V.: Studies in Jurisprudence and legal Theory, 5th ed., Allahabad Law Agency, 2008.
17. Pollock, Sir Frederick: Jurisprudence and legal Essays Selected Introduced by A.L. Goodhard,
London Macmillan, 1961.
18. Pound, Jurisprudence, 1952.
19. Ratanapala Suri, Jurisprudence, 1st South Asian ed. 2011, Cambridge.
20. Tripathi B,N. Mani: An Introduction to Jurisprudence(Legal Theory),ed.,2008.

Websites:
1.

http://lawcommissionofindia.nic.in/.

http://www.transnational.deusto.es/IP2011/docs/Introduction20to%20Private
%20International%20Law.pdf

126