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CHANAKYA NATIONAL LAW UNIVERSITY,

PATNA

ISPL

Project on :-

LEGISLATION AS A SOURCE OF LAW

SUBMITTED TO: PROF. S.ALI MOHAMMED SUBMITTED BY

FACULTY OF LAW AJIT KUMAR SHARMA

Roll No: 1303

4th Year, 7th Semester

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ACKNOWLEDGEMENT

I would like to thank PROF. S.ALI MOHAMMED whose guidance helped me a lot with
structuring my project. I owe the present accomplishment of my project to my friends, who
helped me immensely with materials throughout the project and without whom I couldn’t
have completed it in the present way.

I would also like to extend my gratitude to my parents and all those unseen hands who helped
me out at every stage of my project.

Thank you,

Ajit Kumar Sharma

Roll no-1303.

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DECLARATION

I hereby declare that the work reported in the project entitled ‘’Legislation as a source of
law’’ submitted at CHANAKYA NATIONAL LAW UNIVERSITY is an authentic record of
my work carried out under the supervision of PROF. S.ALI MOHAMMED. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

Ajit Kumar Sharma

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Table of Contents
ACKNOWLEDGEMENT ......................................................................................................... 2
DECLARATION ....................................................................................................................... 3
INTRODUCTION ..................................................................................................................... 5
OBJECTIVES OF THE STUDY ............................................................................................... 6
RESEARCH METHODOLOGY............................................................................................... 6
SOURCES OF DATA ............................................................................................................... 6
LIMITATIONS OF THE STUDY............................................................................................. 6
SCOPE OF THE STUDY .......................................................................................................... 6
SOURCES OF LAW ................................................................................................................. 7
Custom as a Source of Law: ................................................................................................... 7
Legislation As A Source Of Law: .......................................................................................... 9
Precedent As A Source Of Law ........................................................................................... 13
CONCLUSION ........................................................................................................................ 16
BIBLIOGRAPHY .................................................................................................................... 18

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INTRODUCTION

Administration of justice is the firmest pillar of Government. Man is by nature wicked, needs
teaching and discipline in order to be right. Hence for the maintenance of legal rights and for
the prevention of wrongs and injustice, there must be efficient administration of justice
according to pre-declared principles of law.1 Salmond observed, “ Men being what they are -
each keen to see his own interest and passionate to follow it society can exist only under the
shelter of the State and the law and justice of the State is a permanent and necessary
condition of peace, order and civilization.2

Administration of justice means justice according to law. While administrating the justice
what are the legal source to which, help the State to implement the justice in the society, i.e.,
what are the sources of law, which help the State to administration of justice? The expression
‘source of law’ is capable of three meaning. Firstly, it may mean the formal source that
confers binding authority as a rule and coverts the rule into law. The State, therefore, is the
formal source of law and for every law this type of source is the same, the will of the State.
No rule can have authority as law unless it has received the express or tacit acceptance of the
State. Secondly, the expression ‘source of law’3 may mean the place, where, if a person wants
to get information about the law, he goes to look for it. In this sense the source means the
literary source i.e., that from which actual knowledge of the law may be gained e.g., statues,
reports of decided cases and textbooks. Thirdly, the expression source of law may mean that
which supplies the matter on the content of the law. Custom, religion, agreement, opinion of
text writers, foreign rules of law, statute, precedent or judge made law, all come under this
category.

1
Prof. (Mrs.) Nomita Aggarwl, “ Jurisprudence -(Legal Theory)”, 4th Ed., published by Central Law Publications,
Allahabad, 2003. at 63.
2
P.J. Fitzgerld, “ Salmond on Jurisprudence", 12th Ed., published by Universal Law Publishing Co., Pvt., Ltd.,
Delhi, 2002. at. 88.
3
Literal meaning of the term source is ‘rising from the ground’ the origin or ‘ the spring’

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OBJECTIVES OF THE STUDY
The objectives of the study to

(i) To study different types of sources of law.


(ii) To study legislative source of law.

RESEARCH METHODOLOGY
The researcher depend upon the existing materials like books, case laws, thus the researcher
opted doctrinal method of research. The researcher visited library and refer the primary and
secondary sources available there.

SOURCES OF DATA
The researcher went for primary and secondary sources of data. Secondary sources are all
those work done on primary sources.

LIMITATIONS OF THE STUDY


The researcher had time limitation as he has to complete this project within one month.

SCOPE OF THE STUDY


This research will be a source for a further researcher. This research will give him/her the
basic ideas in a very simple manner.

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SOURCES OF LAW

Salmond, an English Jurist, has classified sources of law into the following categories:
Formal Sources of Law: These are the sources from which law derives its force and validity.
Alaw enacted by the State or Sovereign falls into this category. Material Sources of Law: 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. 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. On the basis of the above discussion, three major sources of law can be identified in any
modern society are as follows:

i. Custom

ii. Judicial precedent

iii. Legislation

Custom as a Source of Law:


In all societies of the world, custom has enjoyed a very high place in varying degree in the
regulation of human conduct. Customs arise whenever a few human beings come together, as
no association of human beings can exist permanently without adopting consciously or
unconsciously, some definite rules governing reciprocal rights and obligations.4 This type of
law is a created by the people themselves, by their unconscious adoption of a certain rule of
conduct whenever the same problem arises for solution and its authority is based on nothing
but its long continued use and recognition by the people. Law based on custom is known as
customary law. In fact custom is one of the most fruitful sources of law. Custom is to society
what law is to the State.

Each is the expression and realization to the measure of men’s insight and ability of the
principles of right and justice.

Custom is one of the oldest forms of law making. In primitive societies human conduct was
regulated by practices, which grew up spontaneously and were later adopted by the people.

4
Holland, at 56-63.

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The generally observed course of conduct, which is the main characteristic of custom, thus
originated, observes Holland, in the conscious choice of the more convenient of two acts,
though sometimes doubtless, it is the result of accidental adoption of one of the two
indifferent alternatives. In either case the choice is either deliberately or accidentally repeated
till it ripens into habit.

There are many reasons why custom is given in force of law. Some of the more important
reasons are;

(i) Custom is the embodiment of those principles, which have commended themselves to the
national conscience as principles of truth, justice and public policy.

(ii) The existence of an established usage is the basis of rational expectation of its
continuance in the future. Justice demands that this expectation should be fulfilled and not
frustrated. A custom brings stability and certainty in the legal order.

(iii) Sometimes a custom is observed by a large number of persons in society; in course of


time the same comes to have the force of law.

In modern times, legislation is the most important source of law. However, importance of
custom has not been diminished altogether. In India, for example, customs still occupy a very
important place and their importance has been recognized by law as valuable in the
administration of law and justice. Articles 25, 26 and 28 of the Constitution of India
indirectly guarantee the protection of such customary practices of a community, which are
not repugnant to the concept of secularism and democratic socialism. The existing Hindu law
concerning marriage, succession, adoption, etc., in essence retains these customary features
of old Hindu, which are sill considered useful and necessary by our social reforms.

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Legislation As A Source Of Law:

It is considered to be one of the primary sources of law. Legislation has a very wide ambit
and is used in providing various types of requirement such as to regulate, to authorize, to
enable, to prescribe, to provide funds, to sanction, to grant, to declare or to restrict. A
parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals
old laws. Most of the power of the legislature is restricted by the nations constitution.
Although the legislation has the power to legislate the court has the power to interpret
statutes, treaties and regulations.5

‘Legis’ means regulation and ‘latum’ means making. allow us to understand how various
jurists have defined regulation.

1. Salmond- “legislation is that source of law which is composed within the declaration
of prison regulations by using an able authority.”

2. Horace gray- “regulation way the formal utterance of the legislative organs of the
society.”

3. John Austin- “There may be no law without a legislative act.”


i. Analytical Positivist faculty of notion– this school believes that common
regulation is a statute and legislation is the normal supply of regulation making.
most people of exponents of this school do no longer approve that the courts also
can formulate law. They do no longer admit the claim of customs and traditions as
a supply of law. as a consequence, they regard most effective law because of the
supply of law.
ii. Historic school of the idea– This group of professors believe that legislation is the
least creative of the assets of law. The Legislative purpose of any regulation is to
provide better form and effectuate the customs and traditions which are
spontaneously evolved with the aid of the people. for this reason, they do not
regard regulation as a source of law.
This law-making process is a complex process. A state plays the leading role in it. It gives to
the norms the force of law and supports their enforcement by force of its bodies. An adopted

5
Sources of Law available at https://www.legalbites.in/law-sources/ last visited on 20/08/2018.

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act is considered as an act of the state. A state may regulate lawmaking process, plan it and
thus influence on the development of the law. But its activity must be legal and is not
arbitrary. The law-making process as experiments in the adoption of laws does not satisfy a
society. In the law-making process the interest of the society and the interest of the state
meets. Society needs stable legal system, reflected changing demands and interests of the
society. Fulfilling this task the lawmaking process must be based on democracy and science
in order to reflect and determine the development of the society. And the society is interested
in the influence on the governmental bodies in law-making and in it control. The mistakes of
the state in the law-making process have negative results for the development of the society;
otherwise the correct direction of the law-making process has positive result for the
development of the state. It is very important in the period of social crisis. To some extent the
indicator of the effectiveness of the law-making process is the law enforcement. The law-
making establishes the model of the behavior – the legal norm but the changing society often
fills it with new content. Law enforcement demonstrates whether a new norm corresponds to
the relations. The greater part of the law-making process is a political process and in principal
cannot be regulated by law. The legal scholars may formulate the main principles of this
process1 but it is important if such principle may be enforced in practice. The matter is that
these principles are constitutional principles of the modern state. These principles are binding
for the state and ensure the rights of the society, its groups and individual. The modern
constitutions recognize and determine the state as the social, rule-of-law state; democratic
based on the principle of the separation of powers. In fact this 4 principles determine the
place of the legislative bodies in the law-making process and the character of the law-making
process.6

In modern times legislation is considered as one of the most important sources of law. It may
be said that custom precedes legislation, and, as society advances is replaced by it. Moreover,
much early statue law is no more than formal promulgation of well-established customs.
According to Salmond legislation is that ‘source of law which consists in the declaration of
rules by a competent authority. For Gray legislation is the formal utterances of the legislative
organs of the society.

Legislation is that source of law, which consists in the declaration, or promulgation of legal
rules by an authority duly empowered by the Constitution in that behalf. It is sometimes

6
THE LEGISLATIVE BODIES IN THE LAW - MAKING PROCESS available at https://www.nato.int/acad/fellow/97-
99/bogdanovskaia.pdf last visited on 21/08/2018.

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called Jus Scriptum (written law) as contrasted with the customary law or Jus non-scriptum
(unwritten law). Salmond prefers to call it ‘enacted law’. Statue law or statutory law is what
is created by legislation, for example, Acts of Parliament or of State Legislature. Legislation
is either supreme or subordinate (delegated).

Supreme Legislation is that which proceeds from the sovereign power in the State or which
derives its power directly from the Constitution. It cannot be repealed, annulled or controlled
by any other legislative authority. Subordinate Legislation is that which proceeds from any
authority other than the sovereign power. It is dependent for its continued existence and
validity on some superior authority. The Parliament of India possesses the power of supreme
legislation. Legislative powers have been given to the judiciary, as the superior courts are
allowed to make rules for the regulation of their own procedure. The executive, whose main
function is to enforce law, is given in some cases the power to make rules. Such subordinate
legislation is known as executive or delegated legislation. Municipal bodies enjoy by
delegation from the legislature a limited power of making regulations or bye-laws for the area
under their jurisdiction. Sometimes, the State allows autonomous bodies like universities to
make bye-laws, which are recognized and enforced by the Courts of Law.

The term ‘Legislation’ is derived from the Latin words “Legist’ a law and “Later’ meaning to
‘make’, ‘put’, ‘set’. Thus etymologically, legislation means making or setting the law.
Broadly this term is used in three senses. Firstly, in its broadest sense it includes all methods
of law making. In this sense legislation includes judge-made rules of law, and even the
particular rules of law or the rights created at law between parties to contract. In the second
sense, legislation includes every expression of the will of the legislature, whether directed to
the making of law or not. Every act of legislature, in this sense, is an instance of a legislation,
irrespective of its purpose and effect. The legislature does not confine its action to the making
of law, yet all its functions re included within the term legislation, for example, the legislature
may enter into a treaty with foreign state. In this example, there is no creation of new rule of
law. Thirdly, legislation is used in a strict sense. In this sense it means the making of rules
and laws to be followed and enforced in the courts of the State. These rules or laws can only
be made by competent law making body, i.e., body which, under the Constitution of the
State, is empowered to make laws. This third sense is more popular and while considering
legislation as a source of law.

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Today, in India the place of legislation as a source of law is very high. Among the sources of
law, the most important, today as so recognized, is that of legislation. Custom, which played
a significant role in ancient times, lost much of its importance. At present customary laws
have been incorporated in statutes. Legislation is considered as superior even to precedents.
Sometimes, Precedents produce sound law, but at times, bad or fallacious judgments are
responsible for bad law by production of unsound precedent. If a precedent is unsound, it is
very difficult to remedy the defect and the procedure is a lengthy one. At first the trying judge
in the same High Court must decide the case at hand according to the precedent. The
aggrieved party may then go in appeal and the Appellate Court may give the right judgment.
The defects of legislation can more readily be got over by a proper judicial interpretation of
statute or by amendment of the Act. It is this abrogative power and amending facility that
gives legislation a superiority over precedents. Besides this, legislation voices the views of
the people; bills are circulated for public opinion and it is the voice of public opinion echoed
in the voice of statute. Another great advantage of legislation is that it is direct and
unambiguous. Whereas precedent provides rule which only a lawyer can unravel from the
mass of decisions in support and even among lawyers often there is considerable divergence
of opinion as to the rule that is laid down. Again, legislation is definite and precise as
comparison to case law which is mostly bulky and voluminous. Further, legislation is the
predeclaration of law to the citizens of the State before the law can be applied to their
disputes or actions. A precedent for the first time declares what the law on a point is, till then
the parties to the litigation were in doubt about law. A precedent may come as an unpleasant
and unexpected surprise to a party and cause him serious damage. Enacted law, the product
of legislation, on the other hand declares beforehand what the rights and liabilities of the
panics will be and thus leads to greater justice to the parties.

Different Kinds of legislation

1. Supreme legislation– An ultimate or an advanced law is that which proceeds from


the sovereign strength of the nation. It cannot be repealed, annulled or managed via
another legislative authority.

2. Subordinate legislation– it’s far that which proceeds from any authority aside from
Nthe sovereign power and is dependent for its persistent existence and validity on
some superior authority.

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3.Delegated law– that is a sort of subordinate law. it’s miles that the principal feature of the
government is to enforce the law. In case of Delegated regulation, executive frames the
provisions of law. this is also known as govt legislation. The govt makes laws in the form of
orders, by-laws and so forth.

Sub-Delegation of power to make laws is likewise a case in Indian legal system. In India, the
power to make subordinate law is commonly derived from existing permitting acts. It’s miles
essential that the delegate on whom such power is conferred has to act within the limits of the
permitting act.7

the main cause of this kind of regulation is to supplant and no longer to supplement the law.
Its predominant justification is that sometimes legislature does now not foresee the
difficulties that would come after enacting a regulation. Therefore, Delegated legislation fills
in the one’s gaps that aren’t seen at the same time a method of the allowing act. The
delegated legislation offers flexibility to regulation and there is sufficient scope for
adjustment inside the light of experiences received in the course of the running of regulation.

Precedent As A Source Of Law


In common law legal systems, a precedent or authority is a principle or rule established in a
previous legal case that is either binding on or persuasive for a court or other tribunal when
deciding subsequent cases with similar issues or facts. The general principle in common law
legal systems is that similar cases should be decided so as to give similar and predictable
outcomes, and the principle of precedent is the mechanism by which that goal is attained.
Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by
a court for a particular type of case and thereafter referred to in deciding similar
cases."Common law precedent is a third kind of law, on equal footing with statutory law
(statutes and codes enacted by legislative bodies), and regulatory law (regulations
promulgated by executive branch agencies

Loose Sense- The precedence that are reported may be cited and probably be followed by the
courts. This is was done till 19th Century.

7
Sources of Law available at https://www.legalbites.in/law-sources/ last visited on 20/08/2018.

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After that, another meaning got momentum. Strict meaning said that precedence not only
have great authority but must be followed in certain circumstances.

Holdsworth- He supports the loose meaning.

Goodheart- He supports the strict meaning

Types of precedent

Verticality

Generally, a common law court system has trial courts, intermediate appellate courts and a
supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts
are bound to obey precedent established by the appellate court for their jurisdiction, and all
supreme court precedent.

The Supreme Court of California's explanation of this principle is that under the doctrine of
stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of
courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no
sense. The decisions of this court are binding upon and must be followed by all the state
courts of California. Decisions of every division of the District Courts of Appeal are binding
upon all the justice and municipal courts and upon all the superior courts of this state, and this
is so whether or not the superior court is acting as a trial or appellate court. Courts exercising
inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not
their function to attempt to overrule decisions of a higher court.

Appellate courts are only bound to obey supreme court decisions.The application of the
doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical
stare decisis.

However, in federal systems the division between federal and local law may result in
complex interactions. For example, state courts in the United States are not considered
inferior to federal courts but rather constitute a parallel court system. While state courts must
follow decisions of the United States Supreme Court on issues of federal law, federal courts
must follow decisions of the courts of each state on issues of that state's law. If there is no

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decision on point from the highest court of a state, the federal courts must either attempt to
predict how the state courts would resolve the issue, by looking at decisions from state
appellate courts at all levels, or, if allowed by the constitutions of the relevant states, consult
the state supreme courts. Decisions of the lower federal courts (i.e. the federal circuit courts
and district courts) are not binding on any state courts, meaning that interpretations of certain
federal statutes can and occasionally have diverged depending upon whether the forum is
state or federal. In practice, however, judges in one system will almost always choose to
follow relevant case law in the other system to prevent divergent results and to minimize
forum shopping.

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CONCLUSION

The legislative bodies are important element of the modern constitutional state. In present
almost all countries have the legislative bodies though their role in the governmental
mechanism may be different – from formal one to very active and important.

The place of the legislative bodies in the law-making process is determined by two factors.
From one side the acts of the legislative bodies are important source of all 32 national legal
systems and they increase in number and influence on the development of the national legal
system and society in general. From the other side, the real role of the law-making process
depends from political traditions, form of the government. The position of the executive
bodies is strengthening in almost all countries. The executive bodies adopt acts on the basis
of the delegated powers, may adopt acts in the case of the ‘legislative emergence’, etc. The
executive bodies control the pre-legislative stage of the law-making as the Government is the
main initiator of the bills which have a chance to become a law. The legislative process itself
is also controlled by the Government especially in the parliamentary countries. In some
countries they are called as ‘machine for approvement of the decisions of the Government’.
In the presidential and even in some half-presodential countries the legislative bodies are
more independent from the executive.

In present the law-making process in the legislative bodies are only visible part of iceberg the
greater part of it is hidden for public. In great degree it is regulated by the executive bodies,
political parties and lobbies. Legislatures expect executive agencies to prepare bills and to
lobby; agencies are thought of, rightly or wrongly, as representatives of the public interest
against the private interests served by lobbyist from commerce and industry.18 In fact, this
position may characterized the countries with the different form of the government though
there are differences in relations of the legislative and executive bodies in the sphere of law-
making in the countries with parliamentary form of government, in presidential republic and
half-presidential republics.

The law-making process and the role of the legislative bodies in it are based on the
constitutional principles of democracy, separation of powers, social state. These principles in
present are filled with concrete content in the countries with different legal and political
traditions. Nevertheless it will be wrong to make conclusion about small role of the
legislative bodies in the law-making process. The acts of these bodies are adopted according

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to the most dmocratic manner and different political and social group may more or less
influence on it. This process is open for public and is under control of the public opinion. All
these arguments let to keep formally leading position of the legislative bodies in the law-
making process.

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BIBLIOGRAPHY

BOOKS

 Introduction to the Interpretation of Statutes by Dr. Avtar Singh and Dr. Harpreet
Kaur, 3rd Edition (2009), Lexis Nexis Butterworths Wadhwa Nagpur.
 Principles of Statutory Interpretation by Justice G.P.Singh, 13th Edition (2012), Lexis
Nexis Butterworths Wadhwa Nagpur.
 Maxwell on The Interpretation of Statutes,J. Langan, 12th Edition (2010), Lexis
Nexis Butterworths Wadhwa Nagpur.
 Parliamentary Debates in Statutory Interpretation: A Question of Admissibility or
Weight: Stephan Beaulac.

WEBSITES

 https://www.lawctopus.com/academike/parliamentary-history-external-aid-
construction/
 https://www.scribd.com/document/260799612/179305534-External-Aids-for
Interpretation-Under-the-Indian-Law-Doc
 https://works.bepress.com/william_jordan/13/
 http://www.academia.edu/8319538/EXTERNAL_AIDS_TO_INTERPRETATION_O
F_STATUTES_A_CRITICAL_APPRAISAL_INTRODUCTION

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