SOURCES OF LAW

"No man is above the law and no man is below it; nor do we ask any man's permission when we ask him to obey it. Obedience to the law is demanded as a right;not asked as a favor."

          -(Theodore Roosevelt)

                             

Law is the result of development and a product of history Several factors have contributed to the development of law. These factors are regarded as the source of law. The sources of law are customs, religion, judicial decisions, scientific commentaries, equity and legislature.

(1) Custom or usage.—

Custom is to society, what law is to the State. Custom is the earliest source of law. Salmond says, "Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility". 

Customs or usages are those practices followed repeatedly by people, generation after generation for the sake of their convenience. A custom is formed in much the same way as a path formed across a field. A custom gradually comes into existence. In olden days customs regulated the relations between men. They play an important role in the framing of laws.

Most of the laws spring from the customs and recognised by the State. No State can ignore the customs of the people. The Smrithis of Manu and Yajnavalkya in India are some of the examples which reflected people's customs. The 'Common Law' in the U.K is also an excellent example of customary law. 

The modern society draws its inspiration from the primitive society in considering some customary laws. In India, at present, in Hindu Law customs are recognised by law courts and they have the force of law.

(2) Religion-

Religion is another basis of law in most of the countries. Religion played a very important role in the olden days and it influenced the life of man much.' In ancient societies, life was closely associated with religious beliefs and practices. Religious ideas and practices were used for promoting the spirit of society and also for solving certain problems. Primitive men believed that law had a divine origin. 

Religious concepts controlled the human behaviour in society. Religion played a powerful role as a sanction hind law in Egypt, Greece, Rome and India. The scriptural sanctions are still followed in some religious communities. The religious law is popularly called 'personal law'. In India, Hindu Law based on the Code of Manu and Mohammedan Law on the oran.

(3) Equity-

Another source of the law is equity. Maine defined equity as "any body of rules existing by the side of the final civil law, founded on distinct principles and claiming cidentally to supercede the civil law in virtue of a superior ctity inherent in those principles." 

Equity is a kind of judge made law. Equity is synonymous with justice. Equity follows the law. 'Equity' in the widest sense of the term is 'aequalitas'— the rendering of equality, the doing of proper good to all in accordance 'ith what they deserve. So equity is equality. Equity in its broad and popular sense signifies quality, justice and fairness, that a man shall do unto others as he would be done by. 

Sometimes, in a Court of law the judge finds that justice not be done with the help of the existing law. Then he gives judgment according to common sense and fairness. It is an informal method of making a new law or altering an old law depending on irness or equality of treatment. When laws do not fit in a case or here the existing laws are silent, the principles of equity are applied and cases are decided. 

(4) Precedent-

The judicial decisions or judgments passed by some of the learned gists became another significant source of law. The judges are considered to be the 'wise men of the community'. Their interpretation of certain cases give solution to the present issue d also to the future situation. 

When there is no legislation on the particular point which arises in changed conditions, the judges depend on their own sense right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a similar nature and they are called precedents. 

According to Jenks, a judicial precedent is "a decision by a competent Court of justice upon a disputed point law, which becomes, not merely a guide but an authority to be lowed by all courts of co-ordinate or inferior jurisdiction, ministering the same system, until it has been overruled by a court of superior jurisdiction or by a statute of superior authority, an Act of Parliament." 

The judicial decisions, even today, continue to play an important part in the growth of law. In the U.S.A., the Supreme Court through its power of judicial interpretation has added to the body of the American Constitution. According to Justice Holmes, Judges do and must make laws. A judge while pronouncing a judgment, consciously or unconsciously, makes new law. 

(5) Legislature-

Salmond says, "legislation is that source of law which consists in the declaration of legal rules by a competent authority." Legislature is the direct source of law. In modern times one of the three organs of the government i.e., legislature makes laws. 

The legislature frames new laws, amends the old laws and cancels existing laws in all the countries. The aim of law making is public welfare. But the legislature bears in mind certain factors like customs, religion, equity, etc. while making laws. The executive also makes certain kinds of laws in the form of 'rules' in the modern age. 

(6) Codification-

Codes are the sources of law. A code means 'a systematic collection of statutes, body of laws, so arranged as to avoid inconsistency and overlapping'. According to Salmond, codification is the reduction of the whole corpus juris to the form of enacted law. The codification means promulgation, compilation, collection and systematization of the body of law in a coherent form by an authority in a State competent to do so. In India, we have a Code of Manu. Hindu Law was compiled by Raghunandan Shastri of Bengal. Macaulay prepared the draft of the Penal Code of India as also a draft of the Civil Procedure Code. There is a Code of Criminal Procedure.

(7) Statutory interpretation- 

Interpretation is a very important function of the Court. The process of ascertaining the meaning of the letters and expressions by the Court is called either 'interpretation' or 'construction' Interpretation is the process by which the court seeks to ascertain the meaning of a particular legislature. It is through interpretation, the judiciary evolves the law and brings changes in it, and thus, keeps the law abreast of time. 

DISCLAIMER-

The person behind is a law learner and loves sharing her leaning with all. The purpose is to enlighten nation with general legal knowledge. The gist of this article is full from innumerable sources for edifying purpose.