LC 0802 01 Jurisprudence - Sources of Law - Notes
1. Introduction:
Jurisprudence is the study of law and its principles. Understanding the sources of law is crucial in comprehending how legal systems function. In this article, we will explore the various sources of law, including legislation, precedent, customs, and juristic writings, highlighting their merits, demerits, and significance in legal practice.
2. Legislation:
Legislation refers to laws enacted by legislative bodies. It is a primary source of law in most legal systems. Legislatures, such as parliaments or congresses, create statutes that govern various aspects of society. The merits of legislation include its ability to adapt to changing social needs, provide clarity and certainty, and allow for democratic representation. However, legislation can be time-consuming, subject to political influences, and may not always address specific cases.
3. Precedent:
Precedent is an important source of law in common law systems. It refers to the principle of deciding cases based on previous judicial decisions. Precedents provide consistency, predictability, and fairness in legal outcomes. The doctrine of stare decisis, which means "to stand by things decided," ensures that lower courts follow higher court decisions. Article 141 of the Indian Constitution establishes the binding nature of precedents. Precedents are classified into different kinds, such as binding, persuasive, and original. The ratio decidendi (the legal reasoning) and obiter dicta (statements not essential to the decision) are important components of precedents.
4. Merits and Demerits of Precedent:
The merits of precedent lie in its ability to ensure uniformity and fairness in legal decisions, maintain judicial consistency, and provide a basis for legal predictability. Precedents also promote efficiency by relying on existing case law. However, precedents can sometimes be rigid, slow to adapt to societal changes, and may perpetuate outdated legal principles. Additionally, inconsistencies between different courts' decisions can create confusion and uncertainty.
5. Circumstances Increasing the Authority of Precedent:
Certain circumstances increase the authority and persuasive value of precedents. These include decisions made by higher courts within the same jurisdiction, the age of the precedent, consistency of judicial decisions, and the reputation and expertise of the court rendering the decision.
6. Circumstances Destroying Binding Force:
While precedents generally have a binding force, certain circumstances can weaken or eliminate their authority. These circumstances include overruling by a higher court, distinguishing the facts of a case from the precedent, conflicting precedents, and subsequent legislation that renders the precedent obsolete.
7. Customs:
Customs are unwritten rules that have developed over time within a particular society. They are a source of law in many legal systems. Customs are based on long-standing practices and social acceptance. They provide stability, reflect societal values, and fill gaps in legislation. Customary laws often govern matters such as marriage, inheritance, and property rights. However, customs can sometimes be unclear, vary between different communities, and conflict with statutory laws.
8. Juristic Writings:
Juristic writings encompass legal opinions, scholarly articles, books, and commentaries written by legal experts. They provide interpretations, analyses, and explanations of legal concepts, principles, and judgments. Juristic writings contribute to the development and understanding of the law. However, they are not binding sources of law and can vary in their persuasiveness and authority.
9. Conclusion:
Understanding the sources of law is crucial for legal professionals and those interested in the study of law. Legislation, precedent, customs, and juristic writings all play significant roles in shaping legal systems. Each source has its merits and demerits, and their combined application ensures a fair and just legal framework.
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