BASICS OF LAW

1. Nature, Meaning and Significance of Law

The nature and meaning of law has been described by various jurists. However, there is no unanimity of opinion regarding the true nature and meaning of law. For the purpose of clarity and better understanding of the nature and meaning of law, we may classify the various definitions into five broad classes:

(a)    Idealistic Definition of Law: Under this class fall most of the ancient definitions given by Roman and other ancient Jurists.

Ulpine defined Law as “the art or science of what is equitable and good.” Cicero said that Law is “the highest reason implanted in nature.” Justinian’s Digest defines Law as “the standard of what is just and unjust.”

Ancient Hindu view was that ‘law’ is the command of God and not of any political sovereign. Everybody including the ruler is bound to obey it. Thus, ‘law’ is a part of “Dharma”. The idea of “justice” is always present in Hindu concept of law. Salmond defines law as “the body of principles recognised and applied by the State in the administration of justice.”

In other words, the law consists of rules recognised and acted on by the courts of Justice. It may be noted that there are two main factors of the definition. First, that to understand law, one should know its purpose: Second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature.

Vinogradoff described Law as “a set of rules imposed and enforced by society with regard to the attribution and exercise of power over persons and things.”

(b)    Positivistic Definition of Law: According to Austin, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as political subject.” In other words, law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a duty and is backed by a sanction. Thus, the command, duty and sanction are the three elements of law.

Kelsen gave a ‘pure theory of law’. According to him, law is a ‘normative science’. The legal norms are ‘Ought’ norms as distinct from ‘Is’ norms of physical and natural sciences. Law does not attempt to describe what actually occurs but only prescribes certain rules. The science of law to Kelson is the knowledge of hierarchy of normative relations. All norms derive their power from the ultimate norm called Grund norm.

 (c)   Historical Definition of Law: Savigny’s theory of law can be summarised as follows:

i           That law is a matter of unconscious and organic growth. Therefore, law is found and not made.

ii         Law is not universal in its nature. Like language, it varies with people and age.

iii        Custom not only precedes legislation but it is superior to it. Law should always conform to the popular consciousness.

iv        Legislation is the last stage of law making, and, therefore, the lawyer or the jurist is more important than the legislator.

According to Sir Henry Maine, “The word ‘law’ has come down to us in close association with two notions, the notion of order and the notion of force".

(d)   Sociological Definition of Law: Duguit defines law as “essentially and exclusively as social fact.”

Ihering defines law as “the form of the guarantee of the conditions of life of society, assured by State’s power of constraint”. There are three essentials of this definition.

First, in this definition law is treated as only one means of social control. Second, law is to serve social purpose. Third, it is coercive in character.

Roscoe Pound thinks of law as a social institution to satisfy social wants – the claims and demands and expectations involved in the existence of civilised society by giving effect to as must as may be satisfied or such claims given effect by ordering of human conduct through politically organised society.

(e)   Realist Definition of Law: Realists define law in terms of judicial process.

According to Holmes, “Law is a statement of the circumstances in which public force will be brought to bear upon through courts.” According to Cardozo, “A principle or rule of conduct so established as to justify a prediction with reasonable certainty that it will be enforced by the courts if its authority is challenged, is a principle or rule of law.”

Main Characteristics of Law: A definition to become universal one, must incorporate all these elements:

a.        Law pre-supposes a State.

b.        The State makes or authorizes to make, or recognises or sanctions rules which are called law.

c.        For the rules to be effective, there are sanctions behind them.

d.        These rules (called laws) are made to serve some purpose. The purpose may be a social purpose, or it may be simply to serve some personal ends of a despot.

Separate rules and principles are known as “laws”. Such laws may be mandatory, prohibitive or permissive.

A mandatory law calls for affirmative act, as in the case of law requiring the payment of taxes. A prohibitive law requires negative conduct, as in the case of law prohibiting the carrying of concealed weapon or running a lottery.

A permissive law is one which neither requires nor forbids action, but allows certain conduct on the part of an individual if he desires to act.

Laws are made effective:

(a)         by requiring damages to be paid for an injury due to disobedience;

(b)         by requiring one, in some instances, to complete an obligation he has failed to perform;

(c)         by preventing disobedience; or

(d)         by administering some form of punishment.

Significance and Relevance to Modern Civilized Society

Law is not static. As circumstances and conditions in a society change, laws are also changed to fit the requirements of the society. At any given point of time the prevailing law of a society must be in conformity with the general statements, customs and aspirations of its people.

Law has undergone a vast transformation – conceptual and structural.

(A)   Principal Sources of Indian Law

The principal sources of Indian law are:

(i)        Customs or Customary Law.

(ii)         Judicial Decisions or Precedents.

(iii)          Statutes or Legislation.

(iv)         Personal Law e.g., Hindu and Mohammedan Law, etc.

(i)   Customs or Customary Law

Custom is the most ancient of all the sources of law and has held the most important place in the past, though its importance is now diminishing with the growth of legislation and precedent.

Customs have played an important role in moulding the ancient Hindu Law. Most of the law given in Smritis and the Commentaries had its origin in customs. The Smritis have strongly recommended that the customs should be followed and recognised. Customs worked as a re- orienting force in Hindu Law.

Custom as a source of law has a very inferior place in the Mohammedan Law. However, customs which were not expressly disapproved by the Prophet were good laws. It was on the basis of such customs that Sunnis interpreted many provisions of the law, especially the law of divorce and inheritance. In India, many sects of Mohammedans are governed by local customary law.

Classification of Customs: The customs may be divided into two classes:

(1)         Customs without sanction.

(2)         Customs having sanction.

1.   Customs without sanction are those customs which are non-obligatory and are observed due to the pressure of public opinion. These are called as “positive morality”.

2.   Customs having sanction are those customs which are enforced by the State. It is with these customs that we are concerned here. These may be divided into two classes: (1) Legal, and (2) Conventional.

1.   Legal Customs: These customs operate as a binding rule of law. They have been recognised and enforced by the courts and therefore, they have become a part of the law of land.

Legal customs are again of two kinds: (a) Local Customs (b) General Customs.

a)                 Local Customs: Local custom is the custom which prevails in some definite locality andconstitutes a source of law for that place only. But there are certain sects orcommunities which take their customs with them wherever they go. They are alsolocal customs. Thus, local customs may be divided into two classes:

i)         GeographicalLocal Customs, and

ii)       Personal LocalCustoms.

These customs are lawonly for a particular locality, sect or community.

b)                General Customs: Ageneral custom is that which prevails throughout the country and constitutesone of the sources of law of the land. The Common Law in England is equated with the general customs of the realm.

2.  Conventional Customs: These are also known as “usages”. These customs are binding due to an agreement between the parties, and not due to any legal authority independently possessed by them. Before a Court treats the conventional custom as incorporated in a contract, following conditions must be satisfied:

1.   It must be shown that the convention is clearly established and it is fully known to the contracting parties. There is no fixed period for which a convention must have been observed before it is recognised as binding.

2.              Convention cannot alter the general law of the land.

3.             It must be reasonable.

Requisites of a Valid Custom: A custom will be valid at law and will have a binding force only if it fulfills the following essential conditions, namely:

a)         Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

According to Blackstone “A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if any one can show the beginning of it, it is no good custom”.

b)        Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

c)  Reasonableness: A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

d)    Compulsory observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

e)        Conformity with law and public morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

f)        Unanimity of opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

g)        Peaceable enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

h)        Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

(ii)   Judicial Precedents

“Judicial Precedent” means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents. 

General Principles of Doctrine of Precedents

The first rule is that each court lower in the hierarchy is absolutely bound by the decisions of the courts above it. 

The second rule is that in general higher courts are bound by their own decisions. This is a special feature of the English law.

High Courts

a.        The decisions of High Court are binding on all the subordinate courts and tribunals within its jurisdiction. In case of any conflict between the two decisions of co-equal Benches, generally the later decision is to be followed.

b.        In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on a Smaller Bench. Though decision of a Division Bench is wrong, it is binding on a single judge of the same High Court.

c.        The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts and has persuasive value only.

d.        The Supreme Court is the highest Court and its decisions are binding on all courts and other judicial tribunals of the country.

Article 141 of the Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

Supreme Court

The Supreme Court is not bound by its own decisions. However, in practice, the Supreme Court has observed that the earlier decisions of the Court cannot be departed from unless there are extraordinary or special reasons to do so.

Kinds of Precedents: Precedents may be classified as:

a.       declaratory and original,

b.      persuasive,

c.       absolutely authoritative, and

d.      conditionally authoritative.

a.       Declaratory and original precedents:

According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law.

In the case of a declaratory precedent, the rule is applied because it is already a law.

In the case of an original precedent, it is law for the future because it is now applied.

A declaratory precedent is as good a source of law as an original precedent. The legal authority of both is exactly the same.

b.        Persuasive precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. Obiter dicta also have only persuasive value.

c.        Absolutely authoritative precedents: An authoritative precedent is one which judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal source of law.

Absolutely authoritative precedents in India: Every court in India is absolutely bound by the decisions of courts superior to itself.

d.        Conditionally authoritative precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason. In India, for instance, the decision of a single Judge of the High Court is absolutely authoritative so far as subordinate judiciary is concerned, but it is only conditionally authoritative when cited before a Division Bench of the same High Court.

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