Sources of Jurisprudence (Customs. Legislation’s. Precedents)

Sources of Jurisprudence (Customs. Legislation’s. Precedents)

Sources of Jurisprudence (Customs. Legislation’s. Precedents)

According to DR. ALLEN, the true sources of law are agencies through which the rules of conduct acquire the character of law because of their certainty, uniformity and binding force.

  • According to a fuller, the source of law includes the material from which the judges obtain rules for deciding cases. It includes statutes, judicial precedents, customs, opinions of legal experts, etc.
  • AUSTIN source of law
  • Custom as a source of law :
  • According to ALLEN custom as the uniformity of habits or conduct of people under like circumstances.
  • Customs are some kind of special rule which is in actual existence or possibly followed from time immemorial.
  • According to SAVIGNY custom is essentially a product of natural forces associated with a popular spirit of acceptance by the people.
  • Kind of custom:

Essentials of a valid custom :

  • Continuous and immemorial :
  • A custom must be used from immemorial time in order to be legal and binding.
  • Reasonable :
  • A custom must be reasonable, it must have the elements of principles of justice, equity, and good conscience.
  • Peaceable enjoyment :
  • The enjoyment of custom must be a peaceable one.
  • Certainty:
  • A valid custom must be certain and definite if there are any ambiguities in it, it is not a valid custom.
  • The custom must be general or universal.
  • A valid custom must not be opposed to public policy or the principles of morality.
  • Customs must be consistent with each other, one custom cannot be set up in opposition to another.
  • Theories of custom :

Theories regarding the transformation of custom into law :

  1. Historical theory
  2. Analytical theory
  3. Historical theory –
  • According to this theory, the growth of law does not depend upon the arbitrary will of an individual. It grows as a result of the intelligence of the people. Custom is derived from the general consciousness of the people.
  • According to PUCHTA custom is not only self – sufficient and independent of state imprimatur  but is a condition to all sound legislation.
  • CRITICISM:
  • According to ALLEN All customs cannot be attributed to the common consciousness of the people but have arisen an account of the convenience of the ruling class.
  1. Analytical theory –
  • According to AUSTIN customs is a source of law and not the law itself. Customs are not positive laws until their existence is recognized by the decisions of the courts.
  • According to HOLLAND customs are not laws when they arise but they are largely adopted into laws by state recognition.
  • CRITICISM :
  • According to ALLEN customs grow by conduct and it is, therefore, a mistake to measure its validity solely by the elements of express sanction, accorded by courts of law or by other determinate authority.
  • LEGISLATION AS A SOURCE OF LAW :
  • The legislation is derived from Latin words, legis meaning law and latum. Which means to make thus the word legislation means making of law.
  • According to AUSTIN legislation includes activities that result in law-making or amending. Transformation or inserting new provisions in the existing law.
  • According to SALMOND legislation is a source of law that consists of the declaration of legal rules by a competent authority.
  • Types of legislation :
  • Delegate legislation
  1. Kind of subordinate legislatin.
  2. Delegated legislation is legislation made by any authority other than the legislature.

Control over delegate legislation

  • Precedent as a source of law :
  • According to Jenmery Bentham, precedent is judge-made law.
  • A precedent is an act, decision or case that serves as a guide or justification for subsequent situations.
  • Kinds of precedents:
  • The doctrine of ratio decidendi:
  • Ratio decidendi means the reason for the decision.
  • Ratio decidendi means rule of law upon which decision is founded.
  • The doctrine of Obiter Dicta:
  • Obiter dicta mean opinion of the judges given in a decision that has only persuasive value.
  • Doctrine of Stare Decisis:
  • It means to let the decision stand in its rightful place.
  • Advantage of Precedent:
  • It provides useful guidelines for the judges in deciding cases.
  • Precedent provides flexibility to law to adapt itself to new situations and social conditions.
  • Precedent provides certainty and uniformity.
  • Disadvantages of Precedent:
  • Society changes but no changes in the law.
  • Scope of jurisprudence :
  • The scope of jurisprudence is wider. It includes all concepts of human order and human conduct in the state and society.
  • According to B. MUKHERJEE “ It is both an intellectual and abstraction as well as the behavioral study of man in relation to state and society. It includes social, cultural, economic and political ideas.
  • According to REDCLIFF “ It is a part of history, a part of economics and sociology and a part of ethics in philosophy of life.
  • Nature of jurisprudence :
  • Nature of jurisprudence is dynamic as it changes according to the need of society.
  • NATURAL SCHOOL OF LAW :
  • The term Natural law means those rules and principles which are supposed to have originated from some supreme sources other than any political or worldly authority.
  • The term Natural law derived from the belief that human morality comes from Nature.
  • The phrase Natural law has flexible meaning that has been interpreted differently at different times depending on the needs of the developing legal thought.
  • The concept of” Rule of law” in England and India and due process in the USA are essentially based on natural law philosophy.
  1. Ancient Period:
  • Heraclitus [530-470 B.C.]:
  • Greek Philosopher
  • Feature of natural law – destiny, order, reason
  • According to him, the reason is one of the essential elements.
  • Socrates [470-399 B.C.]:
  • A great admirer of truth and moral values.
  • According to him, virtue is knowledge and whatever is not virtuous is a sin.
  • According to him, justice may be of two kinds.

                                      ( Natural uniformly             ( Legal differ from

                                  applicable to all places)            place to place)

NOTE – (Socrates )

  • Two principles of natural justice :
  • No one can be a judge in his own case
  • Audi alteram partam (let the other side be heard as well)
  • Plato [427-347 B.C.]:
    • Disciple of Socrates
    • According to him, an only intelligent and worthy person should be king.
    • Book – Republic [the concept of the ideal state “A man who work for own”]
  • Aristotle [384-322 B.C.]:
  • Law is related to nature and human

 Creation of god

  Human insight

{Reason unaffected by desire enable to articulate his actions.}

  1. Medieval Period :

(12th to mid-fourteenth Century

  • The main propagates are Saint Ambrose, St. Augustine, Gregory.
  • According to the divine law was superior to all other laws.
  • According to them, all laws are either divine or human.
  • Divine law based on nature or Human law based on custom.
  • According to Gierke, the medieval period Christian theology centered around two fundamental principles.
  • Unity derived from god, involving none faith, one church, and one empire.
  • The supremacy of both law [ divine, man – made]

NOTE –

St. Thomas Aquinas [1225 -1274] classification of law

Law of god – use of god ( external law )

Natural law – pops law ( reason)

Divine law – Priestly ( scriptures)

Human law – Positive law ( sovereign)

  1. Period of Renaissance :

( Modern classical era )

  • Renaissance – Rise of humanism – social contract – the emergence of new ideas – knowledge of the different fields.
  • Social contract
  • Hugo Grotius [1583-1645]:
    • Father of international law.
    • Work – laws of war and peace ( 1625)
    • According to him natural law based on the nature of man and his urge to live in a peaceful society.
    • He considered
  1. Divine law – grandmother
  2. Natural law – parent
  3. Positive law – child
  • He treated natural law as immutable which cannot be changed by God himself.
  • Thomas Hobbes [1588-1679]:
  • Propounded theory of social contract related to the evolution of the state.
  • He firmly believed in absolute sovereignty which depends on sanction.
  • Work – leviathan (1651)
  • John Locke [1632- 1704]:

Reject the theory of Hobbes of the social contract According to him man comes under social contract to secure their natural rights and the state and law have a duty to secure them.

Locke pleaded foe the individual liberty.

Some essential of the doctrine of LAISSEZ FAIRE in the 19th century were found in Locke’s theory.

  • LAISSEZ FAIRE – Free market [ individual liberty]

                                                       [ minimum interference of govt.]

NOTE –

  • Social Contract: An agreement by which members of the society transfer their rights to a person then such agreement as known as a social contract.
  • Jean Jacques Rousseau (1712- 1778):
    • According to him, a social contract is a hypothetical concept.
    • Reject the theory of Hobbes and Locke of a social contract.
    • He termed social contract as “ General Will”.

NOTE –  Bentham called Natural law theory as simple non – sense due to ambiguous and misleading.

4.The decline of Natural law theory due to 19th-century positivism :

  • Decline the principles of LAISSEZ FAIRE due to this the power and authority of the sovereign were weakened.
  • 19th century was the period of Analytical school which separates morality from law.
  • The main exponent of this school are :
  1. Stammler
  2. John Rawls
  3. Geny
  4. Fuller

1.Rudolf stammler[1856-1938]:

  • According to his law of nature means “ Just Law” which harmonizes the purpose in the society.
  • According to him, the purpose of the law is not to protect the will of one but to unite the purposes of all.
  1. John Rawls [1921-2002]:
  • According to him, society is effectively regulated by justice and fairness.
  • He propounded two principles of justice –
  1. Equality
  2. Social x Economic irregularities are harmonized in such a way that it solves the purpose of society.
  • Rawls postulates three levels of justice
  1. Local Justice
  2. Domestic Justice
  3. Global Justice

                                               3. Lon luvois Fuller [ 1902-1978]:

  • A leading supporter of modern natural law philosophy.
  • According to FULLER law and morality are co-related.


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