Unit V – Sources of Law

  •       5.1  Custom as a source of Law

◦        5.1.1  Meaning, Kinds of Custom

◦        5.1.2  Requisites of a valid custom

  •       5.2  Legislation as a source of Law

◦        5.2.1  Meaning, Kinds of Legislation

◦        5.2.2  Interpretation, Kinds of Interpretation

◦        5.2.3  General rules of Interpretation

  •       5.3  Precedent as a source of Law

◦        5.3.1  Nature of Precedent, Kinds of Precedent

◦        5.3.2  Ratio decidendi, Obiter dicta, Doctrine of stare decisis, over ruling

  •       5.4  Other Sources of Law

◦        5.4.1  Religion, Digests, Equity

 

5.1 Custom as a Source of Law

The “Plain English” Intro

Custom is the oldest source of law. it is a long-established practice that has become so common and accepted in a society that it eventually acquires the force of a legal rule.

Day-to-Day Analogy

Think of a Beaten Path across a park. Originally, there was no paved road, but because everyone walked the same way for years, it became the “official” route. Custom is a “legal path” created by the footsteps of ancestors.

The “Checklist” (Requisites of a Valid Custom)

To be enforceable in an Indian court, a custom must be:

  • Ancient: It must have existed from “time immemorial.”
  • Continuous: It hasn’t been interrupted or abandoned.
  • Peaceable: It was followed by choice, not by force.
  • Reasonable: It must align with modern concepts of justice and utility.
  • Moral: It cannot be “opposed to public policy” (e.g., Sati was a custom but was declared invalid because it was immoral).

Landmark Case Laws

  • Collector of Madura v. Moottoo Ramalinga
    • The Conflict: Does a widow have the right to adopt a son without her husband’s prior permission?
    • The Verdict: The Court held that “under the Hindu system of law, clear proof of usage (custom) will outweigh the written text of the law.” Custom was given priority over ancient scripts.

5.2 Legislation as a Source of Law

The “Plain English” Intro

Legislation is “law made by a deliberate act.” It is the most powerful source of law today because it is written down by a sovereign body (like Parliament) specifically to govern future conduct.

Day-to-Day Analogy

Think of a Company’s Employee Handbook. It didn’t evolve over 100 years; the HR department sat down, wrote the rules, and published them. Everyone must follow them from the day they are published.

The Legal Backbone (Interpretation)

Rule

What it says in Simple Terms

Literal Rule

Give the words their plain, dictionary meaning—even if the result is weird.

Golden Rule

Use the literal meaning unless it leads to an absurdity; then, modify the meaning.

Mischief Rule

Look at what “mischief” (problem) the law was meant to fix and interpret it to solve that.

5.3 Precedent as a Source of Law

The “Plain English” Intro

Precedent is “Judge-made law.” It means that a decision made by a higher court (like the Supreme Court) becomes a binding rule for all lower courts to follow in similar future cases.

Day-to-Day Analogy

Think of a Big Brother or Sister. If your parents allowed your older sibling to stay out until 10 PM, you use that “case” as a Precedent to argue that you should also be allowed the same freedom.

Comparison Table: Ratio vs. Obiter

Feature

Ratio Decidendi

Obiter Dicta

Meaning

The “Reason for the Decision.”

“Things said by the way.”

Binding Force

Strictly binding on lower courts.

Persuasive but NOT binding.

Focus

The core legal principle of the case.

Casual remarks or hypothetical examples.

Visual Flowchart Description

  1. Lower Court faces a case $\rightarrow$ 2. Finds a similar case decided by a Higher Court $\rightarrow$ 3. Identifies the Ratio Decidendi $\rightarrow$ 4. Applies Stare Decisis (Stands by the decision).

5.4 Other Sources: Religion, Equity, Digests

The “Plain English” Intro

While less common today, law can also come from religious texts (Personal Laws), professional summaries (Digests), and the concept of “Fairness” (Equity).

The “Checklist” (Essentials)

  • Religion: Source for Hindu/Muslim personal laws (marriage, succession).
  • Equity: Used by judges when the written law is silent or leads to an unfair result. It’s “Natural Justice” applied by a court.
  • Digests: Scholarly compilations of laws that help lawyers find the rules quickly.

Exam “Golden Key”

“Legis Posteriores Priores Contrarias Abrogant”

(Later laws abrogate earlier contrary laws.) Use this to explain why a new Legislation always overrides an old Custom.

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