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Relationship between customs and legislation & precedent and

legislation
(Project report)

Project submitted to
Dr. Anukriti Mishra

Assistant Professor (Faculty Jurisprudence)

Project submitted by
Puneet Sameeksha Xalxo

Sec c

Roll no.118

Semester 6

06/04/17

Hidayatullah National Law University


Raipur, Chhattisgarh

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DECLARATION

I, Puneet Sameeksha Xalxo, hereby declare that, the project work entitled,
relationship between customs and legislation & relationship between precedent
and legislation submitted to H.N.L.U., Raipur is record of an original work
done by me under the able guidance of Assistant Professor Anukriti Mishra,
Faculty Member of Jurisprudence, H.N.L.U., Raipur.

PUNEET SAMEEKSHA XALXO


ROLL NO 118
06 /04/17

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ACKNOWLEDGEMENTS

I would like to take this opportunity to express my deep sense of gratitude


towards my course teacher, Miss Anukriti Mishra for giving me constant
guidance and encouragement throughout the course of the project.

I would also like to thank the University for providing me the internet and
library facilities which were indispensable for getting relevant content on the
subject, as well as subscriptions to online databases and journals, which were
instrumental in writing relevant text.

Special thanks goes out to my seniors who have been relentless in their
help and supporting providing any material whenever required and my
colleagues, who always stood by me, irrespective of the decisions taken by
me. Without their support this project would not have seen the light of the
day.

PUNEET SAMEEKSHA XALXO

SIXTH SEMESTER
B.A. L.L.B (HONS.)

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CONTENT PAGE

1) Declaration1
2) Acknowledgements2
3) Content page......3
4) Chapter-I Introduction4
(A) Introduction4
(B) Research Methodology.5
Objective...5
5) Sources of law6
6) Relationship between customs and legislation........9
7) Relationships between precedent and legislation..12
8) Conclusion..16
9) Bibliography17

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INTRODUCTION
Sources of law mean the sources from where law or the binding rules of human conduct
originate. In other words, law is derived from sources. Jurists have different views on the origin
and sources of law, as they have regarding the definition of law. As the term 'law'has several
meanings, legal experts approach the sources of law from various angles.For instance, Austin
considers sovereign as the source of law while Savigny and Henry Maine consider custom as the
most important source of law. Natural law school considers nature and human reason as the
source of law, while theologians consider the religious scripts as sources of law. Although there
are various claims and counter claims regarding the sources of law, it is true that in almost all
societies, law has been derived from similar sources.
It refers to the material of law. In simple words, it is all about the matter from where the laws are
derived. Customs fall in this category of law. 1
However, if we look around and examine the contemporary legal systems, it may be seen that
most legal systems are based on legislations. At the same time, it is equally true that sometimes
customs play a significant role in the legal system of a country. In some of the legal systems,
court decisions are binding as law.
There are three major sources of law can be identified in any modern society are as follows:
Custom
Judicial precedent
Legislation
Custom was the most important source of law in ancient India. Even the British initially adopted
the policy of non-intervention in personal matters of Hindus and Muslims. The British courts, in
particular, the Privy Council, in cases such as Mohammad Ibrahim v. Shaik Ibrahim, (AIR 1922
PC 59) observed and underlined the importance of custom in moulding the law. At the same
time, it is important to note that customs were not uniform or universal throughout the country.
Some regions of the country had their own customs and usages. These variances in customs were
also considered a hindrance in the integration of various communities of the country. During our
freedom struggle, there were parallel movements for social reform in the country. Social
reformers raised many issues related to women and children such as widow re-marriage and
child marriage. Judicial precedent refers to previously decided judgments of the superior courts,

1
http://ba-llb-handout-notes.blogspot.in/2015/10/the-source-of-law-in-jurisprudence.html

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such as the High Courts and the Supreme Court, which judges are bound to follow. This binding
character of the previously decided cases is important, considering the hierarchy of the courts
established by the legal systems of a particular country. In the case of India, this hierarchy has
been established by the Constitution of India. Judicial precedent is an important source of law,
but it is neither as modern as legislation nor is it as old as custom. It is an important feature of the
English legal system as well as of other common law countries which follow the English legal
system. In modern times, legislation is considered as the most important source of law. The term
'legislation' is derived from the Latin word legis which means 'law' and latum which means "to
make" or "set". Therefore, the word 'legislation' means the 'making of law'. The importance of
legislation as a source of law can be measured from the fact that it is backed by the authority of
the sovereign, and it is directly enacted and recognised by the State. The expression 'legislation'
has been used in various senses. It includes every method of law-making. In the strict sense it
means laws enacted by the sovereign or any other person or institution authorised by him.

Objectives
To collect the information about the sources of law.
To know about the relationship between customs and legislation
To collect the information about the relation between precedent and legislation.

Research Methodology

The Researcher has adopted the doctrinal form of research in completing this project. This form
of research was most appropriate as the project is a study of the duties of Directors under the
English law, Companies Act and the new Companies Bill. Research material used includes
works of eminent researchers about the role of Directors in a company as well as case laws
which provide evidence about the various duties. The researcher has relied upon the various
books available in the HNLU library. Also, online sources like JSTOR, Google Books, Hein
Online and various university sites have been used. No part of this project is plagiarized and it is
the original work of the Researcher.

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SOURCES OF LAW
A Legal Right means a fact that is legally constitutive of a right. A Right is the de
facto antecedent of a legal right in the same way as a source of law is de facto antecedent of a
legal principle.

Legislation- Legis means law and latum means making. Let us understand how various
jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act


Advantage of Court Precedents over Legislation

1. Dicey said that the morality of courts is higher than the morality of the politicians. A judge
is impartial. Therefore, he performs his work in an unbiased manner.

2. Salmond said that Case laws enjoys greater flexibility than statutory law.Statutory law suffers
from the defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the
law.

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an
instrument of reform is necessary but it cannot be denied that precedent has its own importance
as a constitutive element in the making of law although it cannot abrogate the law.

3. Horace Gray said that Case law is not only superior to statutory law but all law is judge
made law. In truth all the law is judge made law, the shape in which a statute is imposed on the
community as a guide for conduct is the statute as interpreted by the courts. The courts put life
into the dead words of the statute.

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4. Sir Edward Coke said that the function of a court is to interpret the statute that is a
document having a form according to the intent of them that made it.

5. Salmond said that the expression will of the legislature represents short hand reference to the
meaning of the words used in the legislature objectively determined with the guidance furnished
by the accepted principles of interpretation.

Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High
Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd.
v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that where it is of matching authority,
then the weight should be given on the basis of rational and logical reasoning and we should not
bind ourselves to the mere fortuitous circumstances of time and death.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger bench
should be followed.
Custom as a Source of Law

Salmond said that Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility.

Keeton said that Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by the

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courts and applied as a source of law because they are generally followed by the political society
as a whole or by some part of it.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.


2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law
which got its content from habits of popular action recognized by courts, or from habits of
judicial decision, or from traditional modes of juristic thinking, was merely an expression of
the jural ideas of the people, of a peoples conviction of right of its ideas of right and of
rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as source
of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that every true human
association becomes a real and living entity animated by its own individual soul.

Henry Maine believed that custom is the only source of law. He said that Custom is a
conception posterior to that of themestes or judgment.

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Relationship between Law and Custom

Though custom is different from law, it does not mean, however, that they are poles apart. Both
supplement and complement each other. Activities which were once performed unconsciously
are now consciously formulated. According to Maine, there is always a necessity for law to
adjust itself to social necessities and social opinions.

When a law expresses the moral consensus of the society, it will be effectively enforced. If it is
not backed by firm moral consensus, effective enforcement is less likely. Law divorced from
custom is bound to become artificial which would not be seriously observed by the people.

Take the case of Sarda Act prohibiting marriage of children. This Act is honoured by the people
more in breach than in observance. A law which does not give official sanction to customs looses
a certain force of sentiment which customs have behind them and which help in obedience
Edmund Burke said, Manners are of more importance than laws. Upon them in great measure
the laws depend.

The law touches us but here and there, manners are what vex or sooth, corrupt or purify, exalt or
debase, barbarize or refine us by a constant, steady, uniform, insensible operation, like that of the
air we breathe in. Customs consolidate law and facilitate its practice.

If the law is not aided by customs, it cannot succeed. As the American James Wilson wrote, Of
all yet suggested the mode for the promulgation of human law by custom seems the most
significant and most effectual. It involves in it internal evidence of the strongest kind that the law
has been introduced by common consent and that this consent rests upon the most solid basis
experience as well as opinion.

This mode of promulgation points to the strongest characteristic of liberty as well as of law. For
a consent thus practically given must have been given in the freest and most unbiased manner.
Laws which are not supported by customs have little chance of being enforced. Certainly a law
cannot succeed permanently if it is opposed by deep-seated customary attitudes. Custom is an
important source of law.
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The common law of England is exclusively based on custom. The passing of laws against
certain practices can be effective when the mores underlying those practices are in the process of
disintegration and a considerable number of people no longer hold to them because then it is
mostly a matter of forcing the reluctant ones to accept the new legal way.

Just as custom supplements law so law also supplements custom. Law functions as an educator.
It creates a moral consensus where none exists. Today law is being used to change obsolete
customs like untouchability, dowry system, child marriage etc. In the primitive societies custom
well served to regulate the conduct of life, but in modern urban-industrial societies customs
become blurred and are challenged by newly emerging loyalties and interests.

The custom becomes less a guideline to conduct, sets limits less, where men are motivated not so
much within family and territorial community as by shared interests within secondary group
associations. Today law takes a very large part in total social control. There are several reasons
for it. Firstly, custom lacks an agency of authoritative jurisdiction due to which the interests of
the, community do not remain fully secure.

Law with special agency of enforcement is required if interests are to be pursued in peace.
Secondly, it is a shortcoming of custom that it cannot adapt itself readily to changing conditions.
Being fixed and permanent customs change very slowly.

Social necessities are always in advance of custom. Therefore, to meet the social necessities and
for quick adaptation to changing conditions another kind of code is demanded; a code which
does not slowly evolve but one which is made expressly for the situation.

Thus with the coming of rail roads and automobiles it was impossible for their regulation to be
exclusively in terms of the old customs because these did not provide specific rules to meet the
new situation created by the new modes of transportation.

Consequently a whole system of law sprang up in every country to regulate themthe clearest
example being the system of traffic rules governing automobiles. The society became so
complex and the devices were so new that deliberate regulation became necessary.

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Thirdly, since there are different customs of different groups, therefore, to have a single and
uniform rule of behaviour where it is desirable, it is necessary to supplement custom by law for
example, the need of a uniform civil code is now being felt in India. Though the issue is being
looked at from a political angle by different political parties.

The above reasons explain the growth of law into the voluminous codes of modern states. The
body of law in every state is always being increased. Modern developments in the economic field
have occasioned enormous addition to law everywhere. Indeed the growth of law is so enormous
that an ordinary citizen is bewildered when confronted with its size and complexity and his
increasing dependence upon the lawyer.2

2
Negi Mehta, Relationship between Law and Customs, http://www.yourarticlelibrary.com/essay/relationship-
between-law-and-custom/24295/, 04.april.17, 2:30 AM

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Relationship between the Legislature and the Judiciary

Despite the fact that the legislature and the judiciary are kept separate from each other, both are
intimately related.

Judicial Functions of the Legislature:

(1) Some legislatures of the world have direct judicial power. The use of Lords, for example, is
the highest court of appeal in the U.K. The senate of America acts as the highest court of
impeachment for high officials. The Indian parliament also has the authority to impeach
President of the Republic.

(2) The judges in some countries can only be removed on the recommendation of the legislature.
In India, for example, the judges of the supreme Court and High Courts can be removed from
service by thepresident on receipt of an address passed by the Parliament by its two- thirds
majority to this effect.

(3) The Parliaments hear appeals in election cases. They try their members for breach of
privileges. They may order arrest and try private citizens for breach of privileges of the
Parliament. There is no appeal to courts against such decisions.

Legislative Functions of the Judiciary:

The judiciary in modern states is playing a vital role in the process of law making. The judiciary
adds flesh and blood to the dry bones of laws by their interpretations and judgments. The
Supreme Court of America has done a lot in this respect, it has removed all the flaws and filled
in all the gaps of the original; constitution.

So great is the law making role of the Supreme Court of America that Laski called it the
continuous constitutional convention and the third chamber of the American Legislature. The
judges of the Supreme Court have changed the constitution beyond recognition.

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The judges also make laws by way of judicial precedents. These are established when a novel
case comes up before them and no reference is available in the existing body of laws regarding
that particular ease. Judgment in such cases is given by judges according to the spirit of justice,
enquiry and fair-play.

Such a judgment becomes a judge made law or a judicial precedent. These serve as laws proper
because future cases of similar nature are derided in the light of judicial precedents already
established.3

Each country has its own laws. The laws in England and Wales have developed gradually over
the time. There are two main sources that create law; Parliamentary and Judicial. Judges are
independent from Parliament and both play important part in our legal system. In this essay we
will compare and contrast the effectiveness of Parliamentary and Judicial law-making.

The main distinction between these two types of bodies who make law is the way how law is
created. Statute law is created by Parliament, in the form of legislation and this law is written.
Parliament became more powerful in the eighteenth and nineteenth centuries. On the other hand
law created by judge, also known as common law, is the older type of law and it has been
developing over centuries. It is based on judges' decisions from hearing different cases.
Independence of the judiciary was secured in the Act of Settlement 1701.

Parliament performs a legislative function and the courts perform a judicial function by resolving
disputes under the law and laying down precedents. Although statute law has significantly
increased in twentieth and twenty-first centuries, the courts still are a very important source in
creating law, despite the fact that there is no legislation for the courts to be law-makers. For
example, murder is still a common law. There is no statute that says murder is a crime.

Common law is still as important body in our legal system as Parliamentary law. Even if statute
law covers almost every aspect of the legal system, judicial decisions play important role,
especially in the areas that are not covered by statutes. Judicial precedent comes from decisions
made by judges which create law for later judges to follow in the future. It is based on Latin

3
Ankita, The Relationship between the Legislature and judiciary,
http://www.preservearticles.com/201106258660/relationship-between-the-legislature-and-the-judiciary.html,05 april
17, 2:50 am

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Stare Decisis which means let the decision stand. This means that if judge decides a case the
decision has to be followed by other judges in other future cases. This supports the idea of
fairness and certainty in law (however this is not always a case due to the very nature of
language). If this decision is overruled by a higher court in the court hierarchy, then new law
applies. For example: in case R v R (Rape: marital exemption) [1991], the House of Lords
abolished altogether a husband's 250 year old immunity from criminal liability for raping his
wife. Precedent can only be effective if the reasons for past decisions are known. Reasons for
decisions and the principles of law used are an important part of any judgement and are known
as the ratio decidendi, which means the reason for deciding.

If not legislation exists, judge make its decision upon established common law or the judge may
create precedent if none exists already. Recent example of judicial law making can be seen in
Gillick v W. Norfolk Area Health Authority [1985], where the House of Lords was asked to
consider whether a girl under sixteen needed her parents' consent before she could be given
contraceptive services. The House of Lords held that a girl under sixteen did not have to have
parental consent if she was mature enough to make up her own mind.

Another important role played by the judiciary is that of statutory interpretation. Interpretation is
necessary when case involves a statute. In order to apply legislation, judges must ascertain the
meaning of the legislation. They are often faced with the difficulty of interpreting the legislation.
Statutes are often criticised for they difficult language and complicated structure. Acts of
Parliament should be clear, coherent and comprehensible. It should be drafted in simple and
accessible language. Unfortunately, some of the laws are too complex and technical, worded in
obscure terms and inaccessible to citizens. Especially tax laws are continually amended by new
Acts of Parliament, thus losing their stability and creating legal uncertainty. Many cases come
before the courts because there is a dispute over the meaning of a word in a statute. For
example, the Dangerous Dogs Act 1991 contains the phrase any dog of the type known as the
pit bull terrier' but it did not say whether type' meant the same as breed'.

The legislature is more democratically representative than individual judges. MP's in Parliament
are elected by public and represent their interest. The question risen here is should judges as
unelected body make law in democratic society? Some critics argue that judges are too powerful.

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It is argued that nobody should have so much power and it should be separated in order to
highlight the distinction and relationship between two elements of the constitution.

Statutes take priority over precedents. Parliament is the sovereign power in the land however it is
argued that parliament is less effective than it was because of the loss of sovereignty associated
with Britain's membership of the European Union. European

law over-rules British law in some areas. For example in Metric Martyr case the Sunderland
market stall holder was successfully prosecuted for not following an EU directive over selling
goods in metric as well as imperial measurements. (Muylle, K. J. 2003). It is also argued that
parliamentary procedure is not suited for the needs of drafting quality legislation. Complaints
about the law making role of parliament concern the slowness and lack of efficiency of the
legislative procedure. Modern society lives and changes at such a pace that when state action is
required, it should be done quickly. (BBC website, 2001)

Parliament can pass the power to make the law to another body. Delegated legislation is law
made by another person or body, but with the authority of Parliament. It is very important piece
of legislation. The types of Delegated Legislation are Statutory instrument, bylaw and Order in
Council. Effectively, this type of Delegated legislation allows the Government make law without
going to Parliament.4

4
https://www.lawteacher.net/free-law-essays/judicial-law/effectiveness-of-parliamentar-and-judicial-law.php

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CONCLUSION

To conclude, statute law and judicial decisions remain the main sources of law in England during
the twenty-first century. Both sources play important parts in English legal system, and it is very
rare for the legislation to interfere with case law and visa versa. The common law will continue
to play a significant role in the modern Malaysian State although many new pieces of legislation
have been enacted and many more are in the pipeline. Many of these new written laws are based
upon or adapted from similar legislation in other Commonwealth countries. The role of judges
in interpreting and giving the desired meaning to the written word is still important. Parallel to
the continued development of the common law would be the development of Islamic law.
However, this does not displace the common law, which forms the basis of mercantile law
generally under the Malaysian legal system. Legislation is both constitutive and abrogative
whereas precedent merely possesses constitutive efficacy. Legislation is not only a source of law,
but it is equally effective in amending or annulling the existing Precedent, on the other hand,
cannot abrogate the existing rule of law although it may produce very good law and in some
respects better than legislation. What it does, it docs once for all. It cannot retrace its steps.
Legislation as a destructive and reformative agent has no equal. Legislation allows an
advantageous division of labour by dividing the two functions of making the law and adminis-
tering it. This results in increased efficiency. President, however, unites those two functions in
the same hands. Justice demands that law should be known before they are applied and enforced
by the law courts, but the ease law operates retrospectively, being applied to facts which are prior
in date to the law itself. Statute law is seldom retrospective in its operation. Then legislation
withstands the test of an interpretation of the statute by the courts of justice. If any alterations are
proposed in the enacted law, they are published and opinions invited. Case law, on the contrary,
is created and declared at one and the same time. Precedent is dependent on, and legislation is
independent of, the accidental course of legislation. Legislation can till up vacancy or settle a
doubt in legal system as soon as the defect is Drought to the notice of the legislature. This is not
possible in the case of precedent. Case law, therefore, is incomplete, uncertain and unsystematic.
Legislation is superior in form brief, clear, easily accessible and understandable, whilst valuable
part of case law has to be extracted from a ton of dross.

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BIBLIOGRAPHY

http://ba-llb-handout-notes.blogspot.in/2015/10/the-source-of-law-in-jurisprudence.html

http://www.yourarticlelibrary.com/essay/relationship-between-law-and-custom/24295/
https://www.lawteacher.net/free-law-essays/judicial-law/effectiveness-of-parliamentar-
and-judicial-law.php
http://www.preservearticles.com/201106258660/relationship-between-the-legislature-
and-the-judiciary.html

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