DD: Sources of Law I

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Law may be from the sovereign, from popular consensus, from god, from a number of heterogeneous factors. These sources can be divided into:
  1. Principle sources
    1. Customary law - Even though this is the most ancient form of law, its importance is diminishing with the growth of legislation and precedent.
      1. With sanction - Enforced by the state
        1. Legal - operate as binding rule of law, recognized and enforced by the courts.
          1. Local - prevails in definite locality or community, source of law for that place only.
          2. General - prevails throughout the country. E.g.: common law of England
        2. Conventional - “usages” – binding due to an agreement between parties and not due to any legal authority independently possessed by them.
          Conditions: It must be shown that convention is clearly established and fully known to the contracting parties. No fixed period for which it should have been observed before recognized as binding. Must be reasonable and can't alter the law of the land. 
          1. Local 
          2. General
      2. Without sanction - Not obligatory, but observed in accordance with public opinion; an expression of positive morality.
    1. Judicial decisions or precedents - Refers to the guidance or authority of past decisions of the courts for future cases. Only decisions that set down a new rule or principle are considered part of precedent.
      1. Declaratory and original
        1. Declaratory: Merely the application of an existing rule of law 
        2. Original: creates and applies a new rule of law - smaller in number, but more important because it helps develop a country.
      2. Persuasive - Judges aren’t obliged to follow but which they’ll take into consideration and to which they will attach such great weight as it seems to them to deserve.
      3. Absolutely authoritative - judges must follow whether they approve or not. E.g.: Judgement by a higher court.
      4. Conditionally authoritative - though ordinarily binding, can be disregarded under certain circumstances.E.g.: Wrong decision 
    2. Statutes or legislation - Declaration or promulgation of legal rules by an authority duly empowered by the constitution in that behalf; jus scriptum as opposed to non jus scriptum.
      1. Superior - proceeds from the sovereign power in the state, derives its power directly from the constitution
      2. Subordinate/ Delegated - from any authority other than the sovereign power – dependent for its continued existence and validity on some superior authority.
    3. Personal law - Where an issue isn’t covered by any statutory law or custom. 
  1. Secondary sources
    1. Justice, equity and good conscience - Applicable in the absence of any rule of a statutory law or custom or personal law.
    2. English law 
      1. Common Law
      2. Law Merchant
      3. Principle of equity
      4. Statute Law

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