Sources of Law | Part 1 | Jurisprudence

In this blog we shall learn about the short questions on Sources of Law, from Jurisprudence. 

Q1. What are the various sources of law ?

Ans. 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 following similar sources.

  • Austin considers sovereign as the source of law
  • 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,
  • Theologians consider the religious scripts as sources of law.

Q2. What are the classifications of law ?

Ans. 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 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 matter from where the laws are derived. Customs fall in this category of law.

Q3. What are the three major sources of law ?

Ans. The three major sources of law that can be identified in any modern society are as follows:

  1. Custom
  2. Judicial precedent
  3. Legislation

Q4. What is a custom ?

Ans. Custom can simply be explained as, those long established practices or unwritten rules which have acquired binding or obligatory character.

Q5. Every custom need not become a law, explain ?

Ans. 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. Thus though its a custom, it is not a law.

Q6. Give an example of custom as source of law ?

Ans. Saptapadi, meaning “seven steps”, the most important rite of a Hindu marriage ceremony, is an example of customs as a source of law. After tying the Mangalsutra, the newly-wed couple take seven steps around the holy fire, which is called Saptapadi. This customary practice of Saptapadi has been incorporated in Section 7 of the Hindu Marriage Act, 1955. Thus the custom has served as a source of law.

Q7. What are the kinds of customs ?

Ans. Customs can be broadly divided into following classes:
custom-01

  1. Customs without sanction: These types of customs are non-obligatory in nature and are followed because of public opinion.
  2. 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, i.e. recognized and enforced by the courts.

Legal custom may be further classified into the following two types:

      • General Customs: The general customs prevail throughout the territory of the State.
      • Local Customs: Local customs are applicable to a part of the State, or a
        particular region of the country.

(b) Conventional Customs: These 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 example : An agreement between landlord and tenant regarding the payment of the rent will be governed by convention prevailing in this regard.

Q8. What are the essentials of a valid custom ?

Ans. The jurists and courts have laid down some essential tests for customs to be recognized as valid sources of law summarized as follows:

  • Antiquity: To be legally valid a custom should have been in existence for a long time, 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: For a custom to be valid it should have been in continuous practice. It must have been enjoyed without any kind of interruption. Customs with long intervals and disrupted practice raise doubts about its validity.
  • Exercised as a matter of right: The custom must be enjoyed openly and with the knowledge of 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 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 considered as valid.
  • Morality: A custom which is immoral or opposed to public policy cannot be a valid custom. Courts have declared many customs as invalid as they were practised for immoral purpose or were opposed to public policy.
  • 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 example, the customary practice of child marriage has been declared as an offence.

Q9. What was the Doctrine of Precedent in India, in pre-independence time ?

Ans. The Doctrine of Precedent said : 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. The Privy Council was the supreme judicial authority – AIR 1925 PC 272.

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