Nature and Sources of Law

The word jurisprudence comes from the Latin juris prudentia, meaning 'knowledge of law' or 'skill in law'. Jurisprudence is the study of the fundamental principles on which law rests, as distinct from the study of a particular statute or branch of law. It asks questions such as what law is, why it binds, how it differs from morality, and what ends it should serve.

Definitions of jurisprudence (frequently asked):

• Ulpian (Roman jurist): knowledge of things divine and human, the science of the just and the unjust.

• John Austin: the philosophy of positive law.

• Salmond: the science of the first principles of the civil law.

• Holland: the formal science of positive law.

• Roscoe Pound: the science of law, using the word 'law' in the juridical sense of the body of principles recognised or enforced by public and regular tribunals.

• Julius Stone: the lawyer's extroversion, that is, the lawyer's examination of the precepts, ideals and techniques of the law in the light of present-day knowledge from other disciplines.

• Gray: the science of law, that is, the statement and systematic arrangement of the rules followed by courts and the principles involved in those rules.

• Dias: the study of legal theory in the widest sense (he preferred a wide, multi-purpose approach).

Divisions of jurisprudence:

• Bentham divided it into expositorial (what the law is) and censorial (what the law ought to be). Bentham also coined the term 'international law'.

• Austin divided it into general (principles common to all legal systems) and particular (a given system of law). He treated only the general, analytical part as true jurisprudence and excluded 'legislation' (what ought to be) from its province.

• Salmond speaks of legal theory in the widest sense and recognises three main approaches: analytical, historical and ethical.

• Salmond also distinguishes jurisprudence in the wider sense (the whole of legal theory) from jurisprudence in the narrow sense (the science of the first principles of civil law).

Method of jurisprudence (modern view): analytical (breaking concepts into parts), historical (tracing origin and growth), sociological (law in society), philosophical or ethical (justice and values), and comparative (across legal systems).

There is no single universally accepted definition of law. Each definition reflects the school of the thinker. Learn them as pairs: jurist and one key phrase.

Essential characteristics of law (as most schools accept them):

• Normative: it prescribes conduct, it does not merely describe it.

• General: it applies to classes of persons and acts, not to a single named individual.

• Prospective: it generally operates for the future (retrospective penal laws are restricted by Article 20(1) of the Indian Constitution).

• Public and certain: it must be promulgated and knowable.

• Coercive or backed by sanction: this is emphasised by positivists and denied as the sole feature by Hart, who stresses the internal point of view of those who accept the rules.

• Institutional: it is made, applied and enforced through institutions such as legislatures, courts and administrative bodies.

Fuller's eight desiderata (inner morality of law) from The Morality of Law (1964): generality, promulgation, non-retroactivity, clarity, non-contradiction, possibility of compliance, constancy through time, and congruence between declared rule and official action. Fuller's story of 'King Rex' illustrates the eight ways of failing to make law. Remember: Fuller says a system that fails entirely on these cannot be called law.

Functions of law: social control; dispute settlement; protection of rights; social change and engineering (Pound, and in India the Constitution's transformative aims); allocation of power and authority; maintenance of order and security; and providing a framework for economic and social life.

Classification of law (common textbook divisions):

• Substantive and procedural law: substantive law defines rights and duties (for example the Indian Penal Code or its successor), procedural law prescribes how they are enforced (for example the Code of Criminal Procedure). Salmond calls the law of procedure the law of the remedy.

• Public and private law: public law governs the relationship between the State and individuals (constitutional, administrative, criminal), private law governs relations among individuals (contract, tort, property, family).

• Municipal and international law: Austin said international law is merely 'positive international morality' because it lacks a sovereign command, while Salmond, Oppenheim and the modern view regard it as true law.

• Civil and criminal law, and common law and equity.

• Salmond's classification of law: imperative law, physical or scientific law, natural or moral law, conventional law, customary law, practical or technical law, and international law.

John Austin (1790 to 1859), the first Professor of Jurisprudence at the University of London, delivered the lectures later published as The Province of Jurisprudence Determined (1832). His programme was to separate law as it is (positive law) from law as it ought to be (morality, ethics).

Austin's classification of laws:

• Laws properly so called: (a) divine laws (set by God to men), and (b) human laws (set by men to men).

• Human laws divide into positive law (set by political superiors to political inferiors, and by persons acting in pursuance of legal rights) and positive morality (set by men who are not political superiors, such as rules of clubs, and also the 'law of fashion' and international law).

• Laws improperly so called: laws by analogy (rules of fashion, honour, international law) and laws by metaphor (laws of nature, like the law of gravity).

Elements of law in Austin's theory:

• Command: the expression of a wish by a determinate person that something be done, with the power and purpose to inflict evil (sanction) if the wish is not complied with.

• Duty: the obligation to obey the command, existing because of the likelihood of the sanction.

• Sanction: the evil that will be inflicted if the command is disobeyed.

• Sovereign: a determinate human superior who receives habitual obedience from the bulk of the society and who does not himself habitually obey any other like superior. Sovereignty is, in Austin's view, indivisible, illimitable (legally unlimited) and determinate.

Examples used by Austin and his critics: Maine pointed out that Ranjit Singh of the Punjab was a good example of an Austinian sovereign (an absolute ruler issuing commands), but even he did not make general laws, he mostly made specific orders and left custom largely undisturbed.

Criticisms (high yield):

• Hart says Austin's model is the 'gunman situation writ large' and cannot explain power-conferring rules (for example how to make a will or contract) which do not command anything, they only confer powers.

• Austin cannot explain customary law (law that existed before and independently of any sovereign command) or international law or constitutional law (the sovereign is bound by the constitution).

• His idea of an indivisible sovereign does not fit federal systems where sovereignty is shared (as in India or the USA).

• Law's binding force rests on acceptance (Hart's internal point of view), not just fear of sanction.

• He ignored the law-making role of judges and the difference between obligation and being obliged.

• Natural lawyers criticise the total separation of law and morality.

Austin's defenders: Austin's contribution was the clear analytical method and the insistence on distinguishing law as it is from law as it ought to be. Even Hart's own project is built on revising Austin.

Bentham versus Austin (a common confusion): Bentham's Of Laws in General (published only in the twentieth century by H.L.A. Hart as Of Laws in General, 1970) is richer than Austin's version: Bentham recognised that a law can be a complex of commands and accepted permissions and powers, and he allowed the sovereign to be limited by public opinion and popular acceptance. Bentham's An Introduction to the Principles of Morals and Legislation (1789) is the source of utilitarianism (the greatest happiness of the greatest number, with the hedonic or felicific calculus).

The expression 'sources of law' is ambiguous, so examiners often test the classification.

Salmond's classification (the most commonly asked):

• Formal source: the will of the State, which gives the rule its validity and force as law. Law gets its legal validity from this.

• Material sources: the places from which the matter (content) of law is drawn, not the validity. These are of two kinds:

  • Legal sources: those which the law itself recognises as authoritative (gateways through which new principles enter the law). They are legislation, precedent, custom, agreement (conventional law) and, to a lesser extent, professional or juristic opinion and equity.

  • Historical sources: those which influence the law only indirectly, such as legal literature, foreign law, and writings. They are not authoritative until a legal source adopts them.

Other classifications:

• Austin treated legislation (sovereign command) as the real source and the others as 'sources' only in a loose sense.

• Allen in Law in the Making concentrates on legislation, precedent and custom as the main 'sources', and treats the study of how the law is made as the study of its sources.

• Gray lists statutes, judicial precedents, opinions of experts, customs and principles of morality.

• Keeton distinguishes binding sources (legislation, precedent, custom) from persuasive sources (books of authority, foreign decisions, principles of morality).

• Hart uses the rule of recognition, a social rule used by officials to identify valid law, as the ultimate criterion of validity within a legal system, so the 'source thesis' says legal validity depends on social facts (pedigree) and not on moral merit.

• Kelsen traces validity upward to the Grundnorm (basic norm), a presupposed norm.

Sources of Indian law (for applied questions): the Constitution of India; statutes enacted by Parliament and State legislatures; ordinances (Articles 123 and 213); delegated legislation (rules, regulations, bye-laws); judicial precedent (Article 141); custom and usage (Article 13(3)(a) treats custom or usage having the force of law as 'law'); personal laws (partially, by religion); and international treaties as implemented through Article 253 and, increasingly, as guiding principles (for example Vishaka v State of Rajasthan, 1997, which read international conventions into fundamental rights where domestic law is silent).

Meaning: legislation is the declaration of legal rules by a competent authority, and it is the most important source in modern states. Salmond says that legislation is that source of law which consists in the declaration of legal rules by a competent authority.

Kinds (Salmond):

• Supreme legislation: that which emanates from the sovereign power and cannot be repealed, annulled or controlled by any other legislative authority. In Salmond's day, the British Parliament. In India, Parliament is not supreme in this sense because of the written Constitution and judicial review.

• Subordinate legislation: made by an authority subordinate to the supreme legislature. Salmond lists five forms: colonial (legislatures of colonies), executive (the executive's power to make rules and regulations by delegation), judicial (rules of court made by judges), municipal (bye-laws by local authorities) and autonomous (laws by private bodies like universities or railway companies, with the State's permission).

Delegated legislation in India (concept and cases):

• In re Delhi Laws Act (1951): the legislature cannot delegate its essential legislative function, but may delegate non-essential functions. Conditional legislation is valid.

• Hamdard Dawakhana v Union of India (1960): the legislature must lay down the policy and legal principle, leaving only details to the delegate.

• Gwalior Rayon Silk Manufacturing Co v Asst. Commissioner of Sales Tax (1973): the legislature must declare the policy; excessive delegation is unconstitutional.

• Indian Express Newspapers v Union of India (1985): delegated legislation can be challenged for being manifestly arbitrary and unreasonable under Article 14.

• Chintaman Rao? Not required; focus on the three above.

Codification and consolidation: codification arranges existing law systematically in a code (Bentham's wish; the Indian Contract Act 1872 and the older Penal Code are examples), consolidation merges many statutes on one subject without changing substance. Bentham was a strong advocate of codification and rejected 'judge-made law' as 'dog law'.

Merits of legislation over precedent: it is deliberate, prospective, systematic, can create new law quickly, is made by representatives, and is accessible. Demerits: it can be rigid, may lag behind facts, can be poorly drafted, and may be rendered uncertain by interpretation.

Interpretation of statutes (rules the examiners like):

• Literal rule: words are given their plain ordinary meaning.

• Golden rule: depart from the literal meaning only to avoid absurdity.

• Mischief rule (Heydon's case, 1584): ask what the common law was, what the mischief was, what remedy Parliament appointed, and the true reason of the remedy.

• Purposive approach: the court looks to the legislative purpose, which is now the preferred approach in India and in most modern systems.

• Ejusdem generis, noscitur a sociis, expressio unius est exclusio alterius are the commonest maxims.

Meaning: a judicial decision to which authority is attributed in the later decisions of the courts. The doctrine of stare decisis ('stand by what has been decided') provides that like cases should be decided alike. Salmond defines precedent as the decision of a court of justice treated as an authority in later cases.

Two parts of a judgment:

• Ratio decidendi: the principle of law on which the decision rests, the binding part.

• Obiter dicta: remarks made by the way, not necessary for the decision. They are persuasive only (although the Indian Supreme Court has said considered obiter of the Supreme Court deserves great weight).

Tests for finding the ratio:

• Wambaugh's inversion test: reverse the proposition; if the decision would still stand, the proposition is not the ratio.

• Goodhart's test: the ratio is found by taking into account the material facts treated as material by the judge, and the decision based on them. Goodhart rejected the idea that the ratio is simply the judge's stated reasoning.

• Halsbury's view (Quinn v Leathem, 1901): a case is only an authority for what it actually decides, not what logically follows from it.

Kinds of precedent (Salmond):

• Authoritative and persuasive precedents. Authoritative precedents must be followed even if the judge disagrees with them. Persuasive precedents (foreign decisions, decisions of lower courts, obiter) are only considered.

• Declaratory and original precedents. A declaratory precedent merely applies existing law; an original precedent creates and applies new law. Salmond notes that original precedents are the real law-making ones.

• Absolutely authoritative and conditionally authoritative: absolutely authoritative precedents bind the court and cannot be disregarded in any circumstances; conditionally authoritative precedents may be disregarded if they are wrong in a certain way (for example if decided per incuriam).

Departing from precedent:

• Distinguishing: the later court finds a material difference in facts.

• Overruling: a higher court (or in some cases the same court, or a larger bench) declares the earlier decision wrong.

• Reversing: a higher court on appeal in the same case sets aside the decision of the lower court.

• Per incuriam: a decision given in ignorance of a binding statute or binding authority. See Young v Bristol Aeroplane Co (1944).

• Sub silentio: a point passed without argument or consideration is not binding.

• Prospective overruling: a decision is declared wrong but applies only to the future, not to past transactions. The doctrine was adopted in India in Golak Nath v State of Punjab (1967) (borrowed from American practice, Linkletter v Walker).

Indian position on precedent:

• Article 141: the law declared by the Supreme Court is binding on all courts within the territory of India. It does not bind the Supreme Court itself.

• Article 129 and Article 215: the Supreme Court and High Courts are courts of record.

• Bengal Immunity Co v State of Bihar (1955): the Supreme Court is not bound by its own earlier decisions and may depart from them in appropriate cases.

• Keshav Mills Co v CIT (1965): the Court can reconsider an earlier decision only if there are compelling reasons, the settled law should not be lightly disturbed.

• Union of India v Raghubir Singh (1989): a classic statement by Chief Justice Pathak on the need for certainty and the proper approach to precedent.

• Central Board of Dawoodi Bohra Community v State of Maharashtra (2005): a bench of the Supreme Court is bound by a decision of a coordinate or larger bench; if it disagrees, it must refer the matter to a larger bench. A smaller bench cannot overrule a larger bench.

• Article 145(3): the minimum bench of five judges for constitutional questions (Constitution Bench).

• High Court decisions bind subordinate courts in that State, and are persuasive in other States.

English position (for comparison): The House of Lords in London Tramways v LCC (1898) held itself absolutely bound by its earlier decisions, which was relaxed by the Practice Statement of 1966 (the Lords may depart from previous decisions 'when it appears right to do so'). The Supreme Court of the United Kingdom has inherited this approach.

Merits of precedent: certainty, predictability, equality, efficiency, and gradual growth of law through experience. Demerits: rigidity, danger of bad decisions being perpetuated, complexity because of a vast mass of cases, and artificial distinctions.

Meaning: custom is a rule of conduct which has been observed over a long time by a community, and is accepted by that community as binding. Salmond calls custom the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. The historical school (Savigny, Puchta) treated custom as the primary form of law, the direct expression of the Volksgeist.

Requisites of a valid custom (the classical tests, often framed in MCQs):

• Antiquity: it must be ancient, in English law traditionally from 'time immemorial' (1189). In India, courts accept customs of long usage, but there is no fixed period; it must be of such age as to be taken as having been always observed.

• Continuity: it must have been observed continuously without interruption.

• Peaceable enjoyment: it must have been exercised without force or secrecy.

• Certainty: it must be definite in its nature and scope.

• Reasonableness: it must be reasonable (it can be contrary to the common law but not contrary to the fundamental principles of justice).

• Obligatory force: it must be regarded by those who follow it as binding, not merely optional.

• Consistency: it must not conflict with another custom.

• Conformity with statute law and public policy: a custom cannot override an express statute or public morality.

• Generality or locality: a general custom applies to the whole community, a local one only to a particular place or group.

Kinds of custom (Salmond):

• Legal custom: one that has the force of law in itself (further divided into local and general). The two kinds are local custom (a particular locality) and general custom (the whole kingdom, which is part of the common law).

• Conventional custom (usage): binds only because the parties have agreed to it, expressly or by implication, as part of their contract (for example, trade usages).

Austin and Holland on custom: Austin treated custom as a mere 'positive morality' until the courts adopt it, at which point it becomes law by judicial recognition (custom is transmuted into law by judicial decision). Holland and Salmond say that custom is law before judicial recognition because it is accepted as such in the community.

Indian law on custom:

• Article 13(3)(a): 'law' includes custom or usage having in the territory of India the force of law, so a custom can be tested for violation of fundamental rights (although the courts have been cautious in applying this to personal law).

• Collector of Madura v Mootoo Ramalinga Sethupathy (1868): the Privy Council famously held that clear proof of usage will outweigh the written text of the law. This is the leading authority on the priority of custom over the Smritis in Hindu law.

• Section 13 of the Indian Evidence Act (now in the Bharatiya Sakshya Adhiniyam, 2023) allows custom to be proved by showing specific instances.

• Hindu Marriage Act 1955 section 3(a) defines 'custom and usage' as a rule which has been continuously and uniformly observed for a long time, is certain and not unreasonable or opposed to public policy, and in the case of a rule applicable only to a family, has not been discontinued by the family. (The same wording is used in the Hindu Adoptions and Maintenance Act 1956.)

Custom and statute today: legislation has largely displaced custom in modern states, but custom remains alive in personal laws, tribal laws (for instance the Fifth and Sixth Schedule areas), constitutional conventions and international law (custom is a source under Article 38(1)(b) of the ICJ Statute, which requires state practice and opinio juris).

• Agreement (conventional law): private agreements create law inter partes, and treaties create law between states.

• Juristic writings: in the common law system, books of authority (Coke, Blackstone, Glanville) can be authority; in Roman, Hindu and Muslim law, the writings of jurists were primary sources (for example the Dharmashastras and Manusmriti, Yajnavalkya Smriti and the commentaries Mitakshara and Dayabhaga).

• Equity: developed in the English Court of Chancery as a corrective to the rigidity of common law (maxims such as 'equity follows the law' and 'he who seeks equity must do equity'). In India, equity operates under 'justice, equity and good conscience'.

• Constitution: in written-constitution systems, it is the supreme source from which all other legal authority derives, and under Article 13 laws inconsistent with fundamental rights are void.