Characteristics of Law
The main characteristics of law are
- Law presupposes a State.
- The State makes or authorises to make, or recognises or sanctions rules which are called law.
- For the rules to be effective, there are sanctions behind them.
- These rules (laws) are made to serve some purpose which may be social.
Some laws may be mandatory, prohibitive or permissive. A mandatory law calls for an affirmative act, as in the case of payment of income tax . A prohibitive law requires adverse conduct, like prohibiting carrying weapons onboard an aircraft. A permissive law neither requires or forbids actions, but allows certain conduct on the part of an individual if he desires to act.
Sources of Law
The law and the system through which it operates has developed over many centuries into the present, combination of statutes, judicial decisions, customs, and conventions. These sources fall under two heads: Principal/Primary sources of Indian Law, and Secondary sources of Indian Law.
Custom or Customary Law
Custom is to society what law is to the State.
Salmond
Custom is the most ancient of all the sources of law and held the most important place in the past, though its importance is now diminishing. A custom may be broadly defined as a usage observed by the people and recognized by the courts on their fulfillment of certain conditions. It is a usage observed by a large majority of people as a matter of habit and its continuance has acquired a legally binding force.
Halsbury stated that “custom is some kind of special rule which is in actual existence or possibly followed from time immemorial and which has acquired the force of law in a specified territory, although it may be contrary or inconsistent with the general law of the land”.
Customs are not laws when they arise, but they are largely adopted into law by the State recognition. It is not necessary that courts should always recognize all the practices which are prevalent in a community. For e.g., there is a practice among the Hindus that the male relatives of the deceased shave off their heads as a mark of condolence, but if a man does not follow this custom, the court is certainly not going to punish him. On the other hand, there are certain customs that are binding and are enforceable by a court of law since they are backed by the sanction of the state. For instance, a Hindu marriage solemnized without the performance of Saptapadi is not legally valid and can be set aside by the court.
Legislation or Statutes
Legislation means ‘making of law’ it is the source of law that consists of the declaration of legal rules by a competent authority. There are two reasons why legislation is regarded as one of the most effective sources of law. Firstly, it involves laying down legal rules by the legislature which the state recognizes as law. Secondly, it has the force and authority of the state. In a strict sense, the term legislation means enacted law or statute law passed by the supreme or subordinate legislature. Supreme legislation is that which proceeds from the sovereign power in the State or which derives its power directly from the Constitution. It can not be repelled, annulled or controlled by any other authority legislative authority. Subordinate legislation proceeds from any authority other than the sovereign power. It is dependent for its continued existence and validity on some supreme authority. In India, however, the parliament is sovereign but not supreme although it possesses the power of supreme legislation.
Judicial Precedents
Precedents have binding force on judicial tribunals for deciding similar cases in the future. The doctrine of precedent has two meaning, namely (1) in a loose sense precedent includes merely reported case- law which may be cited and followed by the courts (2) in its strict sense, and precedent means that case- law which not only has a great binding authority but must also be followed. Two factors are responsible for precedent to become binding.
(I) It must have been pronounced by a Court which is sufficiently senior: and (ii) it is the only ratio decidendi i.e. Reasoning behind the decision which is binding.
A judicial precedent is purely constitutive in nature and never abrogative. The process of judicial decision making may either be deductive or inductive. The deductive method is associated with codified systems of law. It assumes that the legal rule applicable to any particular case is fixed and certain and the Judges are required to apply this rule as justice according to the law without any reference to his personal view. On the other hand, the inductive method is a characteristic of English law, it starts with the primary object of finding the general principle applicable to the particular case, but it does not conceive the rule as being applicable directly by the simple method of deduction. It rather moves from particular to the general. The weight which judicial precedents carry to the decision of a case widely varies depending on the legal system of the country concerned. In England and United States a reported case may be cited with almost as much authority as an Act of the Parliament, but in continental countries[19], it does not carry the same weight and a Court cannot be restrained from taking the same view as taken in the earlier case. In India, the decisions of the Supreme Court have an authoritative and binding force so long as they are overruled by the Supreme Court itself.
Secondary Sources of Law
The concept of Justice, equity and good conscience is applied in case in case point of issue is not covered by any stature or custom or personal law.
Law is not static. at any given point of them the prevailing law of a society must be in conformity with the general statements, customs and aspirations of the people. It has to serve as a vehicle of social change and social justice.
Legal Reforms is the process of examining the existing laws and amending and reforming the same as per the contemporary needs of the community. Indian Law Commission is the apex executive body for working on law reforms.
Conclusion
All the above-mentioned sources of law i.e. Custom, Legislation, and Precedents have played a very important role in building law. A custom may broadly be defined as a usage observed by the people and recognized by the courts on the fulfillment of certain conditions. It is a usage observed by a large majority of people as a matter of habit and its continuance has acquired a legally binding force[24] or in simple terms, it could be stated as When people repeat the same action again and again, it assumes the form of “habit” and when habit continues to be in practice for a long time it becomes custom.
Whereas Legislation can be regarded as the source of law which consists of the declaration of legal rules by a competent authority. It includes formal utterances of the legislative organs of the society. According to Bentham and John Stuart Mill, the legislation includes both the process of law-making and the law evolved as a result of this process.
And last Precedents leads to the certainty of law and also the predictability of decision is always preferable to an approximation of ideals and enables illogical and unsatisfactory decisions to be overruled to meet the ends of justice. In India, the decisions of the Supreme Court are binding on all the courts in India and they constitute authoritative precedents.
Article 141 of the Constitution of India gives constitutional status to the doctrine of precedent in respect of law declared by the Supreme Court of India.
So from the above-mentioned discussion, it could be rightly said that “Courts do not make laws but they fuel life into the dead words of the statues.”
