Saturday, April 13, 2024

Source of Law

What do you mean by sources of law ?

The meaning of the word source is origin. Sources of law means origin of law from which rules of human conduct come into existence. Those things which directly and indirectly play roles in the formation and development of laws are called sources of law. There are various sources of law but there are two major sources of law. They are ;

Direct sources of law

  • Constitution
  • Legislation
  • Precedent
  • Custom
  • Convention

Indirect sources of law

  • Professional opinion
  • Juristic writing
  • Reasons
  • Religion
  • Equity, Justice and Good consciences

Direct sources of law

Direct sources of law is also called primary source o law. It is binding in nature. People must follow these rules otherwise violations of these laws is subjected to punishment.

Constitution

Constitution is the primary source of law. It is the mother of all laws of the country because other laws derived their validity and legitimacy from the constitution. According to Article 1 (1) of the constitution stated that constitution is the fundamental law of the land and any law which is inconsistent with the provision of the constitution upto the existence shall be void. It’s means no law can survive against constitution. Every law must be under the provision of constitution. Constitution determines and limits the rights, duties, functions and responsibilities of government and its organs. Every laws must be made according to procedure determined in the constitution otherwise that law will not valid. That’s why constitution is also called fundamental law of land.


Legislation

The term legislation is derived from Latin term “legis” which means law and ”latum” which means to make, put or set. So Legislation means making or setting of law. Legislation is a written law passed by legislature and implemented by court. Legislation is the most and powerful source of law which has the power of making law, amending old law and cancelling outdated law etc. Legislation is the laying down of legal rules by a sovereign or subordinate legislation. It is formally and expressly declared. It is clearly declared from which date it is applied. It is being forced into effect since certain date. Legislation is a written law passed by legislature and implemented by courts. E.g. Drugs Act 2035, Guthi Corporation Act 2033 etc.

According to Salmond – “Legislation is that source of law which consists in declaration of rules by a competent authority. “

According to Gray – “Legislation is the formal utterances of the legislative organ of the society. ”

Types of legislation

Legislation is the process of lawmaking where a competent authority is given the task of drafting and enacting the law in a state. Broadly, there are two types of legislation;

  • Supreme Legislation : The type of legislation in which law making process is carried out through supreme body or sovereign authority is known supreme legislation. It is made by sovereign body called legislature and it is supreme law.
  • Delegated legislation : The type of legislation in which supreme body gives authority to subordinate body for law making is known as delegated legislation. It must be under the provision of the supreme legislation. It’s validity can be checked by supreme legislation. Further, Delagated legislation is divided into five types. They are as follows;
  1. Colonial Legislation : The nations which are not autonomous, and are under the control of other state and have no supreme capacity to make law such countries are called colonies. The law made by colonies are called colonial legislation. The laws made by them are subject to the Supreme legislation of the state under whose control they are. In the past, England had many colonies. But in present, it doesn’t exist.
  2. Executive Legislation : The law making power given to different departments of executive for the proper administration of day to day activities is known as Executive Legislation. Legislation gives some power to executive bodies to make law for regulations for their internal business. Civil servants act is supreme legislation while civil servants rules is executive legislation is example of executive legislation.
  3. Municipal Legislation : The power of making law is given to municipal authorities for their territorial jurisdiction under their control is known as municipal legislation. Bye-law made by a municipal body works inside its individual area. Local self governing act, 2055 gives local body or municipal body to makes by law d their proper development.
  4. Judial Legislation : The power or authority given to judiciary for making rules and regulation for the regulations of their own procedure is known as Judicial Legislation. This will also ensure that there is no involvement of any other organ of the government in the governance of the judicial system of the state. E.g. the Supreme Court Act, 2048 is a supreme legislation and supreme court has made Supreme Court Rules, 2049 is a judicial legislation.
  5. Autonomous Legislation : The law making power delegated by the state to private companies, institutions and organisations to make rules and regulations for the regulations of their functions and activities are called autonomous legislation. Examples, the TU Act, 2049 is a supreme and TU Rules, 2050 is an autonomous legislation.

Reasons for delegated legislation

  • Lack of time
  • Technicality of subject matters
  • Flexibility
  • Lack of information about local situation
  • Pressure on parliament

Why legislation is important as a source of Law ?

  • Abrogative Power : It can change or annul old law, which control isn’t controlled by different sources.
  • Effectiveness : It separates the elements of making law and overseeing it between the Legislature and the legal executive.
  • Declaration : It gives that principles of law will be known before they are authorised.
  • Provision for future case : Legislation is independent and emerges out of as the authoritative source of law. It makes law in advance for those things which has not occurred in present time.
  • Written in Form : It is predominant in structure, brief, clear and in written form.
  • Easy to understand : It is easy to understand because it is in written form and anyone can understand by reading it.
  • Helpful for Court : Judges of the court makes their decision on the basis of legislation made by sovereign body called legislature.
  • Certainty : Legal systems enjoy greater certainty when law is in codified and written form. Legislation is in written and codified form that ensures certainty in law.

Precedent

Precedent is a body of principles developed by supreme court in the process of hearing and deciding a case. It is also called judge made law. If there is no law or there is law but not clear meaning then it creates confusion and problems in deciding case so in this situation supreme court can make an precedent to settle such legal or constitutional disputes. It is binding and must be followed by lower courts. Article 128 (4) of the constitution provides the power of making precedent to supreme court and the principles constituted there by must be followed by lower courts.

The doctrine of precedent is an special features of English law and common law countries. In England, judges played important role in developing english law. Precedent had been developed in Britain since 13th century before the establishment of parliament. The following cases are examples of precedent in nepal like Meera Dhungana v. PM, Annupurna v. Gorakh Samsher etc.

According to Gray – “A precedent covers everything said or done which furnishes a rule for subsequent practice. “

According to Bentham – “Precedent is judge made law.”

Elements of precedent

  1. Obiter dicta : Obiter dicta is a Latin term which means things said or opinion given by judges while making decisions. These opinions are not binding on all the other courts while they are only persuasive in nature.
  2. Ratio decidendi : Ratio decidendi is taken from a Latin term which means reasons for decision. ratio decidendi is binding on all the lower courts of the country.

Doctrines of stare decisis

Stare decisis is a legal doctrine that obligates courts to follow historical cases when making a ruling on a similar case. Stare decisis ensures that cases with similar scenarios and facts are approached in the same way. Simply put, it binds courts to follow legal precedents set by previous decisions. It is not binding in natures.

Types of precedent

There are various types of precedent but following are the major types of precedent.

On the basis of authority

  1. Authoritative Precedent : The precedent made by supreme court which must be followed by higher or lower court is called authoritative precedent. It is binding in nature. The higher or lower court must follow the principles established by the superior court.
  2. Persuasive Precedent : The precedent made by lower court which are not binding to the higher or superior court is called persuasive precedent. It is not binding in nature. The higher court can follow the principles established in the precedent or can take into consideration.

On the basis of creating rules

  1. Original Precedent : An original precedent arises when the court has never taken a decision in a case and it has to use its own discretion to reach a conclusion. It helps to create new law.
  2. Declaratory Precedent : A declaratory precedent is application of existing precedent in a particular case. A declaratory precedent involves declaring an existing precedent and putting into practice.

Why precedent is important as a source of law ?

  1. Same decision in similar case : Everyone dealing with a similar case is treated in a similar manner there is equality and fairness of justice.
  2. Helpful for future cases : It acts as guidelines to decide future cases.
  3. It saves time, Labour and economy of the court : Precedents saves time and increases convenience as a question once decided is settled and it saves the time and labour of judges and lawyers.
  4. Flexibility: Precedents help to prepare new statutory laws and adjust according to the changing conditions of the society.
  5. Practical in nature : Cases which makes them more practical. Legislation makes law in advance even actual cases may be seen or not but court makes precedent after observing the actual cases. So It is very practical in nature.
  6. Stability : Binding precedent establish a rule that helps to maintain stability. The lower court are obliged to follow precedent so that it maintain stability in legal system.

Custom

Custom is the primary source of law and it is the oldest form of making law. Law based on custom is known as customary laws. In primitive society, the lives of human beings are regulated by custom. It is unwritten law created by human beings. Customary laws also play important role and fills gaps while there is lacking of law. Nepalese law has accepted some custom which have legal authority. E.g. marriage in keen relation is prohibited in Nepal but Muluki ain provides that no one shall be punished for a marriage or sexual intercourse in keen relation and such marriage shall be considered valid in accordance with their tradition followed by their caste.

According to Holland– ” custom is a generally observed habitual course of conduct. “
According to Austin, “custom is a rule of conduct which the governed observe spontaneously and not in a pursuance of law set by a political superior”.

According to Salmond, “custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility”.

Types of custom

There are two types of custom. They are as follows:

  • Legal custom
  • Conventional custom

1. Legal custom : The legal customs are those whose legal authority is absolute and unconditional. These customs operate as a binding rule of law. They have been recognized by the courts and have become a part of the law of the land. They are enforced by the courts. Legal customs are of two types:-

i. Local custom : A local custom is that which prevails in some defined locality, that is, to a district, town or an area.

ii. General custom : A general custom is that which prevails throughout the country and constitutes one of the sources of the law of the land.

2. Conventional custom : A conventional custom is also called “usage”. It is an established practice whose authority is conditional on its acceptance and in corporation in the agreement between the parties bound by it. In simple words, a conventional custom is conditional and condition is that it will be binding on the parties only, if it has been accepted and incorporated by them in their agreement.

Elements of a valid custom

Each and every custom cannot be legally enforced. They must be proved before the courts like any other thing before they can have the force of law. The followings are important elements of a valid custom:

  1. Immemorial Antiquity : The first element of a valid custom is that it must be immemorial. It must be old or ancient and must not be of recent origin.
  2. Reasonable : A custom must be within bounds of reason for it to be considered legally binding. Therefore, custom would be considered not valid if it opposes principles of justice, equality and good conscience.
  3. Morality : Another element of a valid custom is that a custom, to be valid, must not be immoral. It is a well-recognized rule that a custom should not be opposed to decency and morality.
  4. Continuity : The fourth element for a valid custom is that it must have been continuously observed without any interruption.
  5. Peaceful enjoyment : Custom must have been enjoyed peaceably. If a custom has been in dispute for a long time in a court of law, it can’t be considered as valid custom.
  6. Consistency : The other element of a valid custom is that it must be in conformity with the statute law. It should not be contrary to the statutory law.
  7. Certainty : The custom has to clearly defined, it cannot be vague and confusing.
  8. Conformity with statute law : A custom must not go against public policy and law of the land. If the law makes it forbidden, it will not be considered a valid custom.

Why custom is important as a source of law ?

In primitive society, custom was a sole source of law. When a thing is practiced for along period of time it gives rise to rule of law known as custom. Custom is the oldest form of law. There was no written law in primitive society. The lives of people were Regulated by custom, religion, traditional norms, which develops spontaneously according to circumstances. Holland rightly commented that custom originated from the conscious of people. Custom is established by society and popular practice. A society is changed into advancement and the people are civilized day by day.so, the customary rules are incorporated in the courts in their decision. Custom is the foundation stone of modern international law.

Salmond vieved that custom becomes law whenever in fact satisfies the condition prescribed by law for its validity. It proof this is forth coming,courts must affirm the validity of custom,such a custom is called legal custom. Legal custom then supplies a principle to which the will of the state is bound to give legal force. It is therefore ranked as legal material source of law.
In Nepal there are various laws have been made on the basis of custom and that laws carries the norms and value of custom and legislature can’t make law against those custom. E.g. in Nepal, there is legally prohibited not to get marriage in close blood relations but in Manang and Mustang, the law is allowing marriage in close blood relations. Another examples, Nepal is secular state that means no one can discriminate anyone on the basis or religious view point but the entrance of non-hindu in Pashupatinath Temple is strictly prohibited.

Custom was must important source before the codified law come into practice. There is a special regard for custom when ever drafting bill in the parliament or setting any precedent in the court. Custom is the important pillar of modern international law. The statute of ICJ provides that custom becomes law whenever in fact satisfies as a general evidence accepted as law. When more and more state encloses this practice, it acquires a status of universal custom. Custom are either being observed into codes or have been incorporated into legal system by the way of judicial recognition. Therefore, custom always remains as powerful source of law.

Convention

Convention is a primary source of law because section 9(1) of the treaty act 2047 states that the treaty law shall be applied as state law and if state law inconsistent with treaty law then treaty law may prevail. Therefore it is clear that convention is primary source of law.

Convention is an agreement between two or more than two countries. Convention is an agreement by which two or more countries try to establish relationship between them governed by international law. Nepal has accepted various convention like CRC, CEDAW etc and so on.


Indirect sources of law

Indirect source of law is also called secondary sources of law. It is not binding in nature. People are free to follow or not.

Professional opinions

Those people who has depth knowledge and experience in their own profession and field can develop an idea to related authority. Legal professionals can give their valuable knowledge to solve the problems seen in the judicial administration. E.g. opinion given by laywer, judges, doctor and engineer etc.

Juristic writing

Those person who has depth knowledge and experience in law can write or develop legal concepts and any writing. The genuine writings of the law experts, scholars, jurist, lawyer, judges and law teacher are examples of juristic writing. It has no binding forces. Juristic writing are as follows;
International law – Hugo Grotious
Country Justice – Dalton
The Concept of Law – H.L.A Hart etc

Reasons

Reasons is also secondary sources of law. Reasons play important role in law making. E.g. It is legally prohibited that not to get married in close blood relation due to scientific reason.

Religion

Religion is also taken as important sources of law. Because when there was no man made law then state or king used religious laws to regulate human behavior. E.g. Hindu holy book Geeta is the part of Hindu law in Nepal. Bible was part Christianity law in England.

Equity, Justice and Good consciences

Equity, Justice and Good consciences are closely related with social and natural justice. Basically, equity, Justice and Good consciences dependent upon the discretionary power of judges which they could use in the decision of the court.


Read this also : Kinds and classification of law

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Anish Kumar Tiwari
Anish Kumar Tiwari
Anish Kumar Tiwari is the Editor-in-Chief and SEO Expert at Law Scholars Nepal who is continuously publishing law related information and legal knowledge with the aim of increasing legal awareness in Nepal.
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3 COMMENTS

  1. मलाई एकदमै महत्तो लाग्यो जसले गर्दा आज मैले धेरै कुरा बुझ्ने मौका पाए | येसरी नै अरु पाठको बारेमा अध्यन गर्न पाए मेरो लागि अत्तिनैइ फलदाई हुनेछ |

    धन्यवाद!!

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