Sources of Law - Precedent

Sources of Law - Precedent

Guided by – Prof. Eqbal Husain | Husain | Submitted by- Mohd.bid Hussain nsari

3rd Semester

LEGAL METHO DS

 S OURCES OF  OURCES  OF  L  L A  AW  W   - P  RECEDENT 

Sources of Law - Precedent

 It is my imperative duty to thank the following people for the successful completion of  my Legal Methods project, - Professor Eqbal Husain for the clarity he brings into teaching thus enabling us to have a better understanding of his subject. I also feel obliged to thank him for   providing us with such easy topics to choose from. - Tushar Gupta & Syed Nusrat Geelani , My resourceful classmates, who I ran into in the library, thus un-expectedly starting and successfully completing a rough handwritten draft of this project within the next ten hours. hough it is  possible for our language to seem similar, it has to be noted that given some of  our group member!s insistence on not depending on one single book led to all of  us giving in e"ual contribution to the completion of this project.

- he very cooperative and friendly staff members in the #entral and Law Library who were instrumental in our finding the necessary books without wasting much time. It has to be noted that their contribution is essential as our $niversity is yet  to get a fully functional centrali%ed database for its libraries .

Table of Contents 1. Jurisprudence – efinition and e!planation"""""""""""...# $. The Sources of la%"""""""""""""""""""""". !| Page

Sources of Law - Precedent '. (ie%s of )nalytical School of la%"""""""""""""""" #. (ie%s of Historical School of la%"""""""""""""""".* +. Gray,s -ie%"""""""""""".................................................... . Precedent as Source of la%"""""""""""""""""".../ *. 0eanin of Precedent"""""""""""""""""""".12 . 3eason for reception for Precedent""""""""""""""...12 /. Position of Precedent in Enland"""""""""""""""...11 12. Position of Precedent in 4ndia""""""""""""""""...1$ 11.Hierarchy of 5ourts in 4ndia"""""""""""""""""..1' 1$.3atio decidendi and orbiter dicta"""""""""""""""..1+ 1'.0ethods to find ratio""""""""""""""""""""...1 1#.6biter dicta""""""""""""""""""""""""..1* 1+.)d-antaes of 5ase 7a%.............................................................................1/ 1.8iblioraphy""""""""""""""""""""""""$2

Jurisprudence – efinitions and E!planations.

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Sources of Law - Precedent The word  Jurisprudence is derived from a Latin word ‘ &urisprudentia’ which means knowledge of  law. In the Latin language ‘ jure’ or ‘ juris’ means law and ‘ prudentia’ means “skill’ or ‘knowledge’ 1.  Jurisprudence  then signifies a practical ‘knowledge of law and its application’ 2. It is a science which ascertains the fundamental principles of which the law is the expression. urist of different ages have tried to give a definition of the term “ &urisprudence!. "ut no definition can #e said to #e correct in its a#solute sense.  Austin3 defines ‘ jurisprudence’ as ‘'cience of law which deals with analysis of the concept or its underlying principles! .

$s per Salmnd %& 'urisprudence can #e defined in two senses 1. In the ‘(eneric sense’ 'urisprudence can #e defined as ‘)cience of *ivil Law’ 2. In the ‘)pecific sense’ 'urisprudence can #e defined as the science of the first principle of civil law. $ccording to  E!W! Pattersn"9  defines ‘ &urisprudence’ it means a #od+ of ordered knowledge% which deals with a particular species of law. $ccording to  Julius Stne#  $ 'urisprudence means ‘Law+ers extroversion. It is the law+ers’ examination of the precepts% ideals and techni,ues of the law in the light derived from present knowledge in disciplines other than the law’. # $hen we s%ea& of a %erson as a 'urist( what we im%ly in his &nowled)e which is of a s%ecial &ind that it is com%rehensi*e and such as to enable him to formulate )eneral truths+ or in other words the &nowled)e is scienti,c. his means that the 'uris%rudence is in )eneral the same as that of all science+ a com%lete )ras%( a systematic %enetration of its sub'ect-matter+ the %ower of followin) the most )eneral %ro%ositions into their minutest rami,cation and in*ersely of ascendin) from the most concrete care( throu)h all intermediate sta)es of thou)ht to the %rinci%le which )o*erns it Moyle, Introduction to the Institute of Justinions. P. 61. ! .E. Holland( /he Elements of 0uris%rudence1 2#" th Ed.3( %%. 4( 5. " /he Pro*ince of 0uris%rudence 6etermined1 7 Salmond( 0uris%rudence 2#8th Ed.3 %. # 9 E.$. Patterson( 0uris%rudence 2# st Ed.3 %.# 4 0ulius Stone( :he %ro*ince and ;unctions of Law< %. !9 7| Page

Sources of Law - Precedent

It is the name given to a t+pe of investigation into law% an investigation of an a#stract% general and theoretical nature% which seeks to la+ the essential principles of law and legal s+stem. It% as  philosoph+ of law attempts to correlate with )ocial values and provides practical solutions #+ wa+ of fusion of facts% 'ustice and value. The people of this world have formed certain ideas and conceptions a#out the nature if 'ustice and law. It involves the stud+ of general theoretical ,uestions a#out the nature of law and legal s+stems% a#out the relationship of law to 'ustice% moralit+ and a#out the social nature of law. It% as a science of law is primaril+ concerned with regulation of  human conduct in accordance with the set values% needs and goals of each societ+. $s the values% needs and goals are of a changing character% the nature of  jurisprudence also keeps on changing to cater to the need of a particular societ+.  Jurisprudence is the most important and the most useful of legal studies as it deals with the fundamental principles on which rests the superstructure of law. It is ver+ helpful as it provides an opportunit+ to #ring the theor+ and life into focus and how to think rather than 'ust to know. It furnishes such materials which ultimatel+ help in cultivating one’s own ideas in relation to a  particular theor+.  Jurisprudence  is a su#'ect whose knowledge is the #asis and the foundation of the whole legal studies and that is wh+ it has considera#le importance for the law students% law teachers% practicing law+ers and even the 'udges. It is not mere knowledge of law- it is something more than that.

The Sources of 7a% 9| Page

Sources of Law - Precedent Like man+ other terms used in 'urisprudence% the word ‘ surce’ has #een given more than one meaning. The expression ‘ surce % la&’ ma+ mean the origin from which rules of human conduct came into existence and derived legal force or #inding character. )ince the origin% growth and #asis of law has #een different in different stages of social development% different 'urists have pointed out different sources as more authoritative. $ccording to some 'urists% a  source of law is the societ+ itself while for others will of the sovereign is considered to #e the exclusive  source of law.  The expression ‘ source of law’ is capa#le of three meaning/ 1. It ma+ mean the formal source that which confers #inding authorit+ as a rule and converts the rule into law. The state% therefore% is the formal sources of law and for ever+ law this t+pe of source is the same% the will of the state. 0o rule can have authorit+ as law unless it has received the express or tacit acceptance of the state. 2. The expression ‘source of law’ ma+ mean the place% where% if a person wants to get information a#out the law% he goes to look for it. In this sense the term ‘  source’ means the literary source  i.e. that from which actual knowledge of the law ma+ #e gained% e.g.% statutes% reports of decided cases and texts #ooks. . The expressions ‘ sources of law’ ma+ mean that which supplies the matter on the content of  the law% statute% precedents or 'udge made law% all come under this categor+. These are all material sources. (ie%s of )nalytical School of 7a%:

1.  Immediate author or (irect /  $ustin gives three meanings of the term ‘sources of law’ the immediate author of the law is the person or #od+ of persons #+ whom the rules was originall+ formulated giving it the force of law. )uch immediate sources can #e / 3a4 Legislature or 'udiciar+% 3#4 $ political su#ordinate acting either as a legislature or 'udiciar+% 3c4 The persons whose conduct forms a custom% 3d4 The person who #+ contract su#mits themselves to a rule of conduct towards each other. $ustin o#served that either directl+ or remotel+ the sovereign or supreme legislature is the immediatel+ and directl+ laws have different authors. 5 Thus% the supreme legislature is the author or  sources of the laws which it enacts. 5 Literal meanin) of the term /source1 is /risin) from the )round1 the ori)in or /the s%rin)1. = ustin( 0uris%rudence >ol. ??( %. 98@ at %. 9#8 4| Page

Sources of Law - Precedent 2.  )istorical documents.  $ccording to $ustin the second meanings of the sources of law are the earliest or original existing documents from which the #od+ of the law ma+ #e known or  con'ectured e.g.% the digest and code of ustinian in 6ome% the writing of "racton% *oke and Littleton are regarded as authoritative in their sense as the+ were manifestation of 7anu’s code and commentaries of 8a'navalk+a% 9i'naeshwar etc. are examples of this kind of source. . #auses. : The third meaning of the term ‘source’ denotes the causes which have #rought into existence rules which have su#se,uentl+ ac,uired that force e.g.% custom% legislation% rights%  'udicial decision% religious and scientific discussion etc. )tarting with his #asic formulation of the definition of law as the command of the sovereign $ustin  puts sole reliance on one point vi%., sovereign is the onl+ source of law. $ccording to him legislation is the most appropriate% #ecause it is the most direct expression of the sovereign’s will. To this% *.;. $llen opines% that no#od+ ever supposed that law consisted solel+ of legislation. th centur+ that the doctrine of precedent got statutor+ recognition. )ection 212 of the (overnment of  India $ct% 1ol. ##( at !8( ado%ted from Morely( dministration of 0ustice in ?ndia. #5 Da'na*al&ya( Ah. ?( *erse 5. #= he Mahabharata( >ana%ra*a Ah. "#"( *erse ##5. #! | P a g e

Sources of Law - Precedent

*onstitution of India provides that ‘the law declared #+ the )upreme *ourt shall #e  #inding on all courts within the territor+ of India’. In $rticle 1&1 the expression ‘all courts’ has #een used. 0ow the ,uestion comes whether all courts include )upreme *ourt also.’ That is to sa+ whether )upreme *ourt is #ound #+ its own decision or not. In 1 it has #een defined as )tatements which are not necessar+ to the decision% which go #e+ond the occasion and la+ down a rule that is unnecessar+ for the purpose in hand 3usuall+ termed dicta4 leave no #inding authorit+ on another court% though the+ ma+ have some merel+ persuasive efficac+. $ccording to Tal#ot% .% 21 an obiter dictum is an opinion on some point which is not necessar+ for the decision of the case. The !8 >ol. ?( at %. !9#. !# E%ressed in the case of Dew *. United British Steamship o. !td., "1#$%& 1'# !( 6$% #9 | P a g e

Sources of Law - Precedent

emphasis is not onl+ on the opinion #ut also on the point. It is not merel+ an expression of opinion unconnected with the cases for determination. $ccording to ;eeton obiter  dictum are o#servations made #+ the 'udge #ut which are not essential for the decision reached. In Jai&ant Ra and t(er v. State % Raast(an%22 The court o#served dicta which do not form the integral part of the chain of reasoning directed to the ,uestions decided ma+ #e regarded as +obiter!.

In Cngland an obiter dicta has no #inding effect either upon a coordinate court or upon a su#ordinate court. $n obiter dicta  of the =ouse of Lords would undou#tedl+ #e entitled to the highest respect. "ut a 'udge in Cngland would not feel that he would #e  #ound #+ an opinion expressed #+ the higher tri#unal. In India% a departure has #een made of the principle operating in Cngland with regard to obiter dicta. The =igh courts have held almost uniforml+ that the+ are #ound #+ the obiter dictum of the )upreme *ourt of India. In 2(andas v. Sattanat(an43 Their Lordship o#served that the )upreme *ourt is the highest 'udicial tri#unal in India and it is as much necessar+ in the interest of 'udicial uniformit+ and 'udicial discipline that all the =igh *ourts must accepts as #inding the obiter dicta of the )upreme *ourt in the same spirit as the =igh *ourt’s accepted the obiter dicta of the Ariv+ *ouncil’. "ut if the obiter dicta is on a ,uestion that did not arise for determining #+ the )upreme *ourt and is a mere expression of opinion given #+ the wa+ then it is not #inding. In Nuruddin A(med  v. State % Assam45 !! ?F #@4# Fa' !98. !" 94 om LF ##48. !7 ?F #@94 ssam 7=. #4 | P a g e

Sources of Law - Precedent

It was laid down that ‘The o#servations of their Lordships of the )upreme *ourt if the+ were made obiter   would #e entitled to the highest esteem from the =igh *ourt. This would #e more so when the =igh *ourt finds itself in respectful agreement with the view which prevailed with their Lordship.’

In As(, Le)land Case4" It was held that ‘The biter dicta of a 'udge of the )upreme *ourt even in a dissenting  'udgment are entitled to high respect% especiall+ if there is no direct decision to conclude the ,uestion of at issue’. )d-antaes of 5ase la%

The principle advantages of caselaw are listed #elow/ i.

*aselaw is the outcome of practical needs considered #+ men of the highest  practical experience and therefore it is sure to #e in harmon+ with the needs of  societ+. In other words% the law that a 'udge makes is #ound to #e in conformit+ with pu#lic opinion #ecause the 'udge himself is a mem#er of societ+ for which he la+s down the law. ii. In *aselaw it is the ratio that matters and udge can take his own time to explain full+ the principle he la+s down. iii. $ udge in formulating a rule of law is tr+ing to solve an actual concrete pro#lem. =ence% the law that the 'udge makes is #ound to #e more satisf+ing and complete than the law made #+ the legislature. iv. *aselaw is #ound to #e of fine workmanship as it formulated #+ people who have a special training in law.

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Sources of Law - Precedent

8iblioraphy 1. Jurisprudence by Sal>ond $. T.E. Holland, ‘The Elements of Jurisprudence !"3th Ed.# '. Salmond, Jurisprudence !"$th Ed.# #. E.%. Patterson, Jurisprudence !"st Ed.# +. Julius Stone9 ?The pro-ince and aBin C* th Ed.D . Gray9 The Nature and sources of la% C$ nd Ed.9 Ne% orB9 1/$1D

3eferences fro> the 4nternet ". %%%.oole.co> &. '''.la'.cornell.edu('e)(*urisprudence 3. '''.merriam+'ebster.com(dictionar(*urisprudence -. '''.*asononline.com(la'(*uris.htm . '''.indian/anoon.com 0. '''.1a/ilno.".com 2. '''.scconline.com.

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