Sources Of Law In Jurisprudence

Jurisprudence is the study of law, encompassing its philosophy, history, and application. It explores the nature of law, legal reasoning, legal systems, and legal institutions. While understanding the historical development of legal systems is a significant aspect of jurisprudence, it's not simply an "exploration of the history, growth, and operation of legal structures." It's a much broader field of inquiry.

Regarding the "origins of legislation" and their role as the "basis for every legal system," it's more accurate to say that sources of law form the foundation of legal systems. These sources provide the authority and legitimacy for legal rules and principles.

This article examines the numerous sources of law, offering light on their importance and interplay in the Indian context while adhering to universal legal norms.

Types Of Sources Of Law

It is generally classified into 3 types. They are:

Primary Source

These are the authoritative and binding sources of law. They are the actual legal rules and principles that courts and other legal institutions use to make decisions.

Secondary Source

These are persuasive sources that explain, interpret, or analyze primary sources. They are not binding law themselves but can be influential in legal reasoning and interpretation.

Tertiary Source

These are persuasive sources that explain, interpret, or analyze primary sources. They are not binding law themselves but can be influential in legal reasoning and interpretation.

Primary Source Of Law

They specify imperative rules and express widespread declarations that must be used in suitable issues. They are the main dictatorial authorities from which legal rules derive their reality. Some of the most significant primary sources of law are as follows:

Constitution

It is the foremost law of a nation and the basis of all other laws. It specifies the format of government and the connection between the state and citizens. It summarises fundamental rights, declarations of state policy, and the regimes of each constituent of government. A single branch of government cannot unilaterally modify constitutions and usually demands certain revision processes.

Legislations

The word Legislation means lawmaking. It refers to the rules passed by a country’s legislature or Parliament. These carry the structure of statutes, acts, codes, and ordinances. It covers various matters, from crime to healthcare. The legislature has the authority to establish new laws, amend existing laws, and revoke outdated laws. Statutes and acts enacted by the legislature characterise the prevalence of the laws that oversee a society.

It can be classified as

1. Supreme Legislation

This legislation is embraced by the head of the State. So, no other authority of the state can restrain or keep a review of it. There are no sensible limitations on its ability. Our Indian Parliament has been so remarkable that even though there are various constitutional changes, it isn’t subject to any administrative authority under the state. Therefore it can be said that Supreme jurisdiction cannot be withdrawn, nullified or denied by any other authority of the state.

2. Subordinate Legislation

This legislation is any decree by an authority other than the Supreme organ of the state. The Supreme authority lays down some powers under which this legislation functions. So this legislation’s existence, lawfulness and reasonability are owed to the Supreme professional of the state. Unlike Supreme legislation, it can be revoked anytime by the Supreme authority.

Judicial Precedents

It refers to the body of case law delivered by courts via written judgments on legal conflicts. These form secure permitted precedents under the doctrine of stare decisis (let the conclusion stand). Lower courts are obliged to obey precedents established by superior courts in the judicial hierarchy when resolving comparable circumstances. The logic and directions of milestone judgments evolve as a component of case law and a definitive preliminary basis.

It can be categorised as:

Authoritative

It is also comprehended as binding precedents. These precedents are restrained to be pursued by a lower court or other identical court once a judgment is made whether they endorse it or not.

Persuasive

It comprises determinations brought on by a subordinate court that a higher court or any other court is not obliged to obey. It relies on the court to determine whether to consider it or not.

Original

It emerges when the court has never fixed a lawsuit and it has to utilise its own preference to end. It permits the development of new laws.

Declaratory

It is the implementation of existing precedent in a certain case. It implicates claiming a current law and applying it, therefore it does not assist in creating an advanced law.

Custom

It consists of designated cultural practices and traditions that have the force of law within a community. Many countries, including India, determine it as a preceding source of law, especially in disciplines like individual status, marriage, heritage, and land rights. It derives its rule from longstanding usage by a community instead of standard ruling. However, customs must enact specific permitted trials to be proper sources of law.

It is extensively distinguished as:

Custom With Sanction

These are set by the governing body. Thus, these are the mandatory customs. It could be either Legal Customs (unconditional in sanction and lead to legal consequence if not obeyed) or Conventional Customs (only enforceable on the individual's approval of the parties to an agreement.)

Custom Without Sanction

They do not contain any lawful consent. They were only obeyed since somebody was practising it due to social responsibilities.

All customs cannot be acknowledged as a law. Here are some necessities that it must have to evolve as a regulation:

• It must be rehearsed for a prolonged time (antiquity).
• It must be comprehended to all not practice secretly.
• It requires it to be appropriate.
• It doesn’t infringe on the ethics or verified criteria and importance of the society.
• It must not be in contrast to the persisting ruling.

Secondary Source Of Law

Secondary sources of law analyze, interpret, explain, critique, and comment on primary sources of law. They provide context, background, and scholarly analysis, helping to understand and apply primary legal materials. Unlike primary sources, they do not establish law themselves but rather offer persuasive arguments and interpretations.

Common types of secondary legal sources include:

• Legal Treatises and Textbooks: Comprehensive scholarly works on specific areas of law, offering in-depth analysis and commentary.
• Law Review and Journal Articles: Scholarly articles written by legal academics, practitioners, and students, exploring specific legal issues and offering critical analysis of existing law.
• Legal Encyclopedias: Organized summaries of legal principles and case law, providing a broad overview of various legal topics.
• Restatements of the Law: Compilations of common law principles by legal experts, aiming to clarify and restate the law in specific areas.
• Legal Dictionaries: Define legal terms and concepts.
• Commentaries: Interpretations and explanations of statutes, court decisions, or other legal materials.

These sources are authored by legal scholars, judges, lawyers, and other legal experts, and are published in various formats, including books, journals, online databases, and websites. They offer informed perspectives on legal issues, analyze legal trends, and propose reforms or improvements to the law. While not binding authority, they can be highly persuasive and influential in shaping legal discourse and influencing judicial decisions.

Tertiary Source Of Law

Tertiary sources are tools used to locate and understand primary and secondary legal sources. They summarize, compile, and provide commentary on legal topics. They do not establish legal precedent themselves. Examples include legal encyclopedias (like Halsbury's Laws of India or American Jurisprudence), legal dictionaries (like Black's Law Dictionary), textbooks, legal treatises, law review digests, and indexes to legal periodicals. While some journal articles analyze the law (and thus could be considered secondary sources), those that simply summarize existing law are tertiary.

Tertiary sources serve as valuable finding aids. They provide overviews of legal areas, consolidate information from various primary and secondary sources, and often offer citations to those sources. This makes them useful for researchers to gain a general understanding of a legal topic, identify relevant primary authorities (like statutes and case law), and locate influential secondary sources (like scholarly articles and legal treatises). They help researchers understand the context of a legal issue and guide them towards more authoritative sources for in-depth research and legal argument. They are not considered binding authority in court.

Conclusion

Understanding the sources of law is fundamental to comprehending the legal system of any jurisdiction. By recognizing the distinct roles and importance of each source, legal professionals, scholars, and citizens can navigate the complexities of the legal landscape more effectively and contribute to a more just and informed society.

FAQs

A few FAQs on Sources of Law in Jurisprudence are:

Q1. Why is it important to understand the sources of law?

Understanding sources of law is crucial for legal professionals, scholars, and citizens to interpret and apply the law correctly, conduct legal research, and advocate for legal change.

Q2. What are the main sources of law in India?

The primary sources are the Constitution, legislation (statutes passed by Parliament), judicial precedents (case law), and customs. Secondary sources include legal treatises, scholarly articles, and commentaries. Tertiary sources are research tools like legal dictionaries and encyclopedias.

Q3. How are customs considered a source of law?

Long-standing, widely accepted practices within a community can become legally recognized customs if they meet certain criteria (antiquity, certainty, reasonableness, etc.).