Sources of Law

1. Chapter 01
Sources of Law
1. Define law according to Holland. 3, Jan.10
2. Define law both in commercial and general perspective. 5, Jul.13, Jan.12, Jul.08
3. What are the sources of law? 5, Jul.13, Jan.12, Jul.08
4. ‘No man is above law.’ Discuss. 6, Jan.11
5. ‘He who seeks equity must do equity.’ Explain. 5, Jan.13, Jul.11
State briefly the distinction between Equality and Equity. 5, Jul.08, Jul.06
6. Discuss the relationship between Law and Society. 5, Jan.10
Discuss about society and law. 6, Jan.11, Jan.10
7. What do you understand by the rule of law? 6, Jul.10, Jan.10
8. What are the three Rules of Law? 12, Jan.10
9. What are the benefits of the rule of law? 7, Jul.10
10. ‘All are equal in the eyes of law.’ Discuss. 7, Jul.10
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What do you mean by law.
Law:
In a layman's language, law can be described as' a system of rules and regulations which a country or
society recognizes as binding on its citizens, which the authorities may enforce, and violation of which
attracts punitive action. These laws are generally contained in the constitutions, legislations, judicial
decisions etc.
Some definitions of law:
1. Aristotle defined law 'as an embodiment of reasons whether in individual or the community'.
2. Jereny Benthan defined law as a collection of signs declarative of a volition conceived or adopted
by the sovereign'
3. Jurist John Austin defined law as a body of rules determined and enforced by a sovereign political
Authority.
4. Rosese Pound defined law as an organised and critically controlled body of knowledge both of
legal institutions and legal precepts and of the legal order, that is, of the legal ordering of the
society.
5. Joseph Raz says law consists of authoritative positivist considerations enforceable by the courts.
6. Holland defined law as a rule of external human action enforced by the sovereign political
authority.
Therefore, law is the principles and regulations established in a community by some authority and
applicable to its people, whether in the form of legislation or of custom and policies recognized and
enforced by judicial decision.
Major functions and purposes of law are:
a) to deliver justice
b) to provide equality and uniformity
c) to maintain impartiality
d) to maintain law and order
e) to maintain social control
f) to resolve conflicts
g) to bring orderly change through law and social reform
Define law according to Holland. 3, Jan.10
Law:
According to Holland, law is a rule of external human action enforced by the sovereign political authority.
He entails three essential characteristics of law:
1. Law is a general rule relating to the actions of human beings.
2. Law attempts to take cognizance of external actions of human beings.
3. Law is enforced by determinate authority, which authority is human, and among human
authorities, is that which is paramount in a political society.
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Define law both in commercial and general perspective. 5, Jul.13, Jan.12, Jul.08
Law: Commercial perspective
Commercial law, also known as business law, is the body of law that applies to the rights, relations, and
conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.
[1]
It is often
considered to be a branch of civil law and deals with issues of both private law and public law.
Commercial law – body of law that governs business and commercial transactions. It is often
considered to be a branch of civil law and deals with issues of both private law and public law. It is also
called business law.
Commercial law includes within its compass such titles as principal and agent; carriage by land and sea;
merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and
partnership. It can also be understood to regulate corporate contracts, hiring practices, and
the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain
comprehensive statements of their commercial law.
Law: General perspective
Law is defined as any act, ordinance, order, regulation, bye law, notification or other legal instrument and
any custom or usage established in a community in order to govern behaviour of its people that is made
by legislatures through legislation (resulting in statutes), the executive through decrees and regulations,
or judges through binding precedent and jurisdictions.
The formation of laws themselves may be influenced by a constitution (written or unwritten) and the rights
encoded therein. The law shapes politics, economics, history and society in various ways and serves as a
mediator of relations between people.
Law is the most explicit, institutionalized, and complex mode of regulating human conduct. It plays only
one part in the congeries of rules which influence behavior, for social and moral rules of a less
institutionalized kind are also of great importance.
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What are the sources of law? 5, Jul.13, Jan.12, Jul.08
Sources of law:
Sources of law mean the origin from where law or the binding rules of human conduct come into
existence. It also refers to the sovereign or the state from which the law derives its force or validity.
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.
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.
Classification of sources of law:
Sources of law can be classified into-
1. Formal sources
2. Material sources
3. Non-formal sources
1. Formal sources:
Formal sources are the sources from which the law derives its force and validity. Of course the only
authority from which the law can spring and derive forces and validity is the state.
Formal sources include:
a) Legislation (supreme and subordinate: executive, judicial, municipal and autonomous)
b) Judicial precedents (original, declaratory, authoritative, persuasive precedents)
c) Treaties
2. Material sources:
Material sources refers to the various processes, which result in the evolution of the materials, which are
the constituents of law.
Material sources include:
a) Legal sources (statute law, case law and customary law)
b) Historical sources (juristic writings, literary works and foreign decisions)
3. Non-formal sources:
Non-formal sources include custom, standards of justice, equity, good conscience).
Write short note on legislation and judicial precedent.
Legislation:
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'. It is the source of law which
consists in the declaration of acts, legal rules enforceable by a competent authority. In the strict sense it
means laws enacted by the sovereign or any other person or institution authorised by him.
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To legislate is to make new laws in any fashion. Legislation includes every expression of the will of the
legislature. Every Act of Parliament is an instance of legislation.
Legislation may be either supreme or subordinate.
1. Supreme legislation is that which proceeds from the supreme or sovereign power in the state
i.e., Parliament, and which is therefore incapable of being repealed, annulled or controlled by any
other legislative authority.
2. Subordinate legislation is that which proceeds from any authority other than the sovereign
power. Such legislation is subordinate in that it can be repealed by, and must give way to,
sovereign legislation. The origin, validity, existence and continuance of such
legislation totally depends on the will of the sovereign authority.
Different forms of subordinate legislation:
a) Executive:
The rule making powers under the statues is conferred on the executives. They are vested with
the responsibility to implement the laws enacted by the legislature. Executive legislation is
resorted to, on account of reasons like paucity of time, technicalities of law and emergency.
Therefore, it is sometimes considered as a necessary evil.
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b) Judicial:
Judiciary is conferred with the power to make rules for their administrative procedures. The
superior courts have the power of making rules for the regulation of their own procedures and
administration. For instance, under the Constitution, the Supreme Court and High Courts have
been conferred with such kinds of power to regulate procedure and administration.
c) Municipal:
The Municipal authorities are entrusted by the law with limited and subordinate powers of
establishing special law for the areas under their control. The enactments so authorised are
termed by-laws, and this form of legislation may be distinguished as municipal.
d) Autonomous:
When a group of individuals recognized or incorporated under the law as an autonomous body, is
conferred with the power to make rules and regulation, the laws made by such body fall under
autonomous law. For instance, laws made by the bodies like Universities, incorporated
companies etc. fall in this category of legislation.
Judicial precedents:
Judicial precedent refers to previously decided judgments of the superior courts, 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. These are important sources of law in modern society and judges do play a significant
role in law-making.
It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority,
which explicitly or implicitly lays down a legal proposition, constitutes a general and formal source of law.
The practice of following precedents is necessary to secure the certainty of and predictability of decisions.
This creates confidence in the minds of the litigants and administration of justice becomes fair.
Judicial precedents can be divided into following two parts:
1. Ratio decidendi (Reason of Decision):
'Ratio decidendi' refers to the binding part of a judgment. 'Ratio decidendi' literally means reasons
for the decision. It is considered as the general principle which is deduced by the courts from the
facts of a particular case. It becomes generally binding on the lower courts in future cases
involving similar questions of law.
2. Obiter dicta (Said by the way):
An 'obiter dictum' refers to parts of judicial decisions which are general observations of the judge
and do not have any binding authority. However, obiter of a higher judiciary is given due
consideration by lower courts and has persuasive value.
Different forms of judicial precedents:
a) Original precedent means a precedent that creates and applies a new legal rule. An original
precedent is made when there is no previous judicial decision on a point of law. When the court
has to form an original precedent, a judge will come to their decision by analogy. That is, by
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considering the cases that are nearest to it in principle. The decisions in the referred cases are
not binding on the court but they may be persuasive.
b) Declaratory precedents are those that merely declare or apply the same pre-existing legal
principle on a similar case.
c) Authoritative precedent is one in which judges must follow it whether they approve of it or
not. It may further be classified into absolute and conditional.
Absolutely authoritative precedents are binding on lower courts irrespective of however
erroneous it may be.
Conditionally authoritative precedents are usually binding on all ordinary cases, however
in one special case its authority may lawfully be denied if the wrong and unsound nature of the
law is proved.
d) Persuasive precedent means precedent which a judge is not obliged to follow, but is of
importance in reaching a judgment, as opposed to a binding precedent. It assist the decision
maker in determining a case. Decisions of lower courts and foreign courts can be persuasive
precedents.
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Legal sources:
Legal sources are those which are recognized as such by law itself. They are authoritative and are
allowed by the law courts as a right. Examples include constitutions, statutes, executive orders,
administrative regulations, ordinances, charters, by-laws, treaties, judicial precedents etc.
Historical sources:
Legal sources are those which are lacking of formal recognition by law. They are persuasive. They
influence extensively the course of legal development but they speak with no authority.
Historical sources are law destitute of a legal recognition and are unauthoritative, e.g., a book written by a
jurist.
Examples include customs or customary law, standards of justice, natura rerum, individual equity, public
policies, moral conviction and social trends.
Formal sources:
Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which
the law derives its force or validity. Examples include legislation, statutes, precedents. Executive orders,
treaties etc.
Non-formal sources:
Non-formal sources include custom, standards of justice, equity etc.
Austin refers to the term ‘sources of law’ in the following three meanings:
1. Direct or Immediate Author:
The immediate author of law is the person or body of persons by whom the rule was originally formulated,
giving it the force of law.
The immediate sources are:
(a) the sovereign acting as legislature or judiciary;
(b) a political subordinate acting either as a legislature or judiciary;
(c) the persons whose conduct forms a custom; and
(d) the persons who by contract submit themselves to a rule of conduct towards cache other.
2. Historical Documents:
The earliest extant document in which the rule of the body of the law can be found, e.g., the Digest Code
of Justinian in Rome, but not the commentaries on them.
3. Causes:
Causes lo which the laws owe their existence, such as legislation, adjudication, custom, religion, equity,
etc.
Dr. Allen objects lo the use of the term ‘source of law’ in the sense assigned by Austin. According to him,
a source of law is that from which law 1s derived. In the sense used by Austin customary law cannot be
said to have been derived from the Slate or sovereign. Such law from rules of conduct or practices of the
people long observed and the State only superimposes a formal sanction.
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According to Holland, the obscurity, which has involved the whole subject of the original law, is largely
due to the ambiguous uses of the term ‘sources’.
Such uses are fourfold; viz.,
(i) sometimes the word is employed to denote the quarter whence we obtain our know ledge of the law,
e.g., whether from the statute-book, the reports, or esteemed treatises;
(ii) sometimes to denote the ultimate authority which gives them the force of law, i.e., the stale;
(iii) sometimes to indicate the causes which have brought into existence, rules which have subsequently
acquired that force, viz., custom, religion, scientific discussion; and
(iv) sometimes lo indicate the organs through which the Stale either grants legal recognition to rules
previously unauthoritative, or itself creates new law, viz., adjudication, equity, legislation.
Salmond originally divided the sources of law into formal and material. According to him a formal source
is that from which a rule of law derives its force and validity. The material source is that from which is
derived the matter and not the validity of the law. It is in the material sense that the expression is to be
understood here. Material sources are divisible into two classes legal and historical.
The legal sources are those which are recognised as sources of law by the law itself through the mouth of
the courts of law (e.g. Law of Contracts, Indian Evidence Act, Indian Penal Code), precedent (judge-made
law), customary law and conventional law. Historical sources are law destitute of a legal recognition and
are unauthoritative, e.g., a book written by a jurist.
The learned editor of the 10th edition of Salmond’s book on Jurisprudence has excluded the formal
sources altogether on the grounds that the words ‘formal source’ convey nothing and there is difficult to
attach the will of the State to this expression. He has maintained only the legal and historical sources of
law.
Salmond has classified the legal sources of English Law into four divisions
(1) Enacted Law, or Statute Law, having its source in legislation;
(2) Case Law having its source in princely;
(3) Customary Law, having is source in custom; and
(4) Conventional Law, having its source in agreement.
Professor keel on also uses the term “Source of law” to mean the materials out of which the law is
eventually fashioned through the activity of judges.
He regards the following sources of law as important, viz. (i) legislation, (ii) judicial precedents, (iii)
custom, (iv) principles of morality or equity and (v) professional opinion. The first three are binding
sources, while the last two terms as persuasive sources.
Law, like the State itself, is the product of history. In every country it has passed through various stages
of development and several factors have contributed to its evolution.
All these factors are described as the “sources” of law which may be outlined as follows:-
1. Custom:
Custom is one of the earliest sources of law. In the primitive society all disputes were decided in
accordance with the prevailing social customs. In the beginning, when the social organisation was simple,
customs were based on the general usage of the family, clan or tribe.
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No one can say exactly when and how custom arose, “except that it was shaped by the cooperative
action of the whole community and not by any kingly or legislative command.” But one thing is clear, that
customs are accepted and followed as a matter of habit.
Their sanction is utility or the general desire of men for order and justice. Sometimes people choose to do
a certain thing as a matter of convenience. When it is repeated, it becomes a habit and passes from one
generation to another till its utility is lost to the community. Sometimes a custom may grow accidentally
and people begin following it.
The various schools of jurisprudence are in substantial agreement upon the importance of customs as a
source of law. Customs are not laws in the political sense of the term.
But when the State recognizes these customary rates as binding, they acquire the status of law. No State
can afford to ignore the customs of the land, not even conquerors that impose new legal systems on
defeated countries.
If it does, the people who follow these customs will revolt against the authority of the State. “In the great
book of law”, says Maclver, “the State merely writes new sentences and here and there scratches out an
old one.
Much of the book was never written by the State at all, and by all of it the State itself is bound, save as it
modifies the code from generation to generation.
The State can no more reconstitute at any time the law as a whole than a man can remake his body.” The
common law of England consists mainly of customs and the courts take due cognizance of it. Customary
law is also an integral part of the legal framework in India.
2. Religion:
In the primitive community custom was law and law was religion. Law and religion were so inextricably
mixed up that the rules of life had a religious sanction.
The institution of, first, the magician and, then, the priest-king, in the early stages of the development of
the State, is a clear illustration of the relation between religion and politics.
“Indeed,” as Woodrow Wilson points out, “the early law of Rome was little more than a body of technical
religious rules, a system of means for obtaining religious rights through the proper carrying out of certain
religious formulas.”
The most influential basis of the Hindu Law in India is the code of Manu. The Mohammedan Law derives
itself from the Quran and the Shariat.
Islamic law now forms the basis of the legal system of the Islamic Republic of Pakistan replacing the
prevailing laws by those ordained by the Quran and Shariat and evolving an Islamic Jurisprudence.
President Zia- ul-Haq, for instance, replaced the wealth tax and agriculture produce laws by Zakat and
Usur. Religion, thus, is an important and in some the only source of law, as in the Arabian countries, Iran
and Afghanistan.
3. Judicial Decisions:
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Gettel says that the State “arose not as the creator of law, but as the interpreter and enforcer of customs.”
When men live in society disputes are sure to arise. In primitive society disputed points were referred to
the wisest men in the community and their decisions were accepted and made precedents for similar
cases.
When social organisation became more complex and tribes intermixed either for the purpose of trade or
matrimony, conflict of customs became more usual. At that time the necessity was felt to supplement
custom by interpretation.
Whenever custom failed to give a just solution or was obviously not suited to the case, the dispute was
decided according to commonsense. Such decisions became judicial precedents.
In the beginning they were oral and unwritten and passed from generation to generation by tradition. But
in order to make them more definite they were later reduced to writing.
In Britain, before the rise of Parliament, judges went on circuit and were responsible for evolving
uniformity in the law. By comparing decisions and by basing new decisions on preceding ones, they
developed the Common Law.
This was not a characteristic only of early law. In our own times a judge, while applying the law, interprets
it, and in doing so he modifies or explains it either subconsciously or deliberately. Customs, too, are to be
fitted to dynamic conditions of society and their rigidity is lubricated by the progressive social forces.
Even a written law requires filling in the gaps. This is done by judges, and Justice Holmes, of the United
States Supreme Court, gave us a bare truth when he said that judges do and must make laws. Thus, law
in its most characteristic form is the case-law or judge-made law.
4. Scientific Commentaries:
Scientific discussions by eminent jurists also modify and develop law. In every country the greatest
importance is attached by both judges and lawyers to the opinions of legal luminaries. The jurists collect
and arrange in logical form past customs, decisions, and laws. They discuss and elaborate the existing
law and make it clear where it is ambiguous.
In this process they express their opinions as to what the law ought to be and its effect on society. On the
basis of the past and the present law, they are able to arrive at general principles which may guide future
legislation and indicate in broad lines the gaps that need filling in. The opinions of the commentators are
not decisions.
They are only arguments. When these arguments are repeatedly recognized, they amount to accepted
decisions. To sum up: “The commentator, by collecting, comparing, and logically arranging principles,
customs, decisions and laws, lays down guiding principles for possible cases. He shows the omissions
and deduces principles to govern them.”
5. Equity:
The term equity means equality or fairness. The function of a judge is to administer justice. But law can
never fit in every case. At many points it may be silent and at others it may be ambiguous.
When the existing law does not provide any relief, principles of equity are applied and cases are decided
according to commonsense or fairness. Moreover, positive law, with the lapse of time, becomes
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unsuitable for new and changed social conditions. To make it suitable, either the law should be changed
by the law-making authority, or there should be some informal method of changing it.
Equity is an informal method of making new law or altering old law, depending on intrinsic fairness or
equality of treatment. Thus, equity is intended to provide relief where the existing law affords none. It aims
at securing equality or justice and it is based on what earlier writers used to describe as the law of nature,
that is, law guided by reason.
The interference of equity with law, according to Sir Henry Maine, is open and avowed. Equity not only
supplements law, but it also makes law flexible. It is an informal method of making new law and altering
the old one.
Equity, too, is a kind of judge-made law. But there is one important difference between the two. In case-
law, the judge interprets the existing law. In equity, he adds to the law what is missing therein and creates
a new one in order to make it suitable for the changed conditions.
6. Legislation:
In addition to selecting customary usages for enforcement, Kings issued decrees concerning new
matters. This practice was the source of legislation, which became the primary concern of the legislative
assemblies with the emergence of a representative government. But the approval of the King or President
is as much there now as it was in the past.
Legislation is, now, the most prolific and direct source of law. Law is regarded as the expression of the will
of the people and the will of the people is expressed through legislative assemblies which are
representative bodies. All other means of making laws have now been swallowed up by this modern
method of legislation. Custom and equity are being replaced by definite legislative acts.
The codification of law has limited the scope of judicial decisions, and scientific commentaries are used
simply to discuss cases. Legislation has, thus, tended to supplant other sources of law. But we cannot
ignore the practical utility of customs, equity, religious practices and judicial decisions. Though all these
forces have not remained direct sources of law, yet they constantly influence its formulation.
Woodrow Wilson has beautifully expressed his views on the process of the development of law. He says,
“Custom is the earliest fountain of law but religion is a contemporary, an equally prolific, and in the same
stages of national development, an almost identical source.
Adjudication comes almost as authority itself, and from a very antique time goes hand in hand with equity.
Only legislation, the conscious and deliberate organisation of law, and scientific discussion, the
development of its principles, await an advanced stage of its growth in the body-politic to assert their
influence in law-making.”
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4. ‘No man is above law.’ Discuss. 6, Jan.11
According to Dicey, rule of law means that, “no man is above law”. Every man whatever his rank or
condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals.
“What is law-legal right and legal obligation for people must hold equally as such for all citizens.
In other words, Rule of Law means-
a) equality before the law
b) every citizen is subject to the ordinary law of the land and
c) the citizen has to face trial in the same law courts, irrespective of his status or position in the
society.
No-one is above the law and everyone is subject to the Constitution and the law. The legislative and
executive arms of government are bound by legal prescripts. Accountability, responsiveness and
openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in
organs of state or who are part of constitutional institutions are transient but that constitutional
mechanisms, institutions and values endure. To ensure a functional, accountable constitutional
democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office
bearers must work within the law and must be accountable. Put simply, ours is a government of laws and
not of men or women.
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5. ‘He who seeks equity must do equity.’ Explain. 5, Jan.13, Jul.11
State briefly the distinction between Equality and Equity. 5, Jul.08, Jul.06
Equity vs Equality
One of the differences is the fact that equality obviously denotes that everyone is at the same level,
whereas equity, in business parlance, denotes the ownership of the shares of a company. Equality
alludes to the identical apportionment where dealings, values or qualities are concerned. Equity
represents fairness, or what may be termed as the equality of outcomes. This involves factoring in
aspects of the system that have put particular groups at a disadvantage.
An example, which would bring out the principal difference between the two, would be how a turkey may
be carved up at at family’s dinner table. Equality would mean that everybody ‘“ father, mother and children
– would get a piece of the same size. Equity, on the other hand, would mean that they take the sensible
option, and divide it according to their needs, i.e. larger sized pieces for the adult and smaller pieces for
the children.
When we say equity, we refer to the qualities of justness, fairness, impartiality and even handedness.
When we talk about equality, we are talking about equal sharing and exact division.
A perfect example of the practical demonstration of the difference between the two concepts, is the
feminist movement. Now, if women demand they should be treated in the same way as men, that would
not be possible – equality would not be possible – because women and men are different, and cannot be
treated in exactly the same way. However, if they demanded equity in how the world treats them, it would
be a genuine demand, because now they are demanding that they be given the same rights as men have
as human beings. It is equity that is desirable, not sameness.
Once again, in business parlance, equity denotes the value of something. Suppose I bought a laptop for
$500 a year ago, and tried selling it today. It would probably fetch around $250. That is its equity value.
Equality, of course, only means exact distribution. Really the difference between the two alludes to the old
debate about the preference of quality over quantity.
If one were to take a classical example to distinguish between the two concepts, one could go back to the
days of the cold war when the communist block countries tried to practice equality by paying everyone the
same, irrespective of their station in life. The capitalist block, on the other hand, paid according to merit
and productivity. The efficacy of the later approach, is brought out by the subsequent collapse of the
communist order.
Therefore, although seeming to be similar, equity and equality are indeed very different kettles of fish.
Summary:
1. Equality denotes that everyone is at the same level, whereas equity in business parlance denotes the
ownership of the shares of a company.
2. Equity refers to the qualities of justness, fairness, impartiality and even handedness, while equality is
about equal sharing and exact division.
3. Equality equals quantity, whereas equity equals quality.
"Equity is commonly said to "mitigate the rigor of common law", allowing courts to use their discretion and
apply justice in accordance with natural law."
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"Equality before the law or equality under the law or legal egalitarianism is the principle under which each
individual is subject to the same laws, with no individual or group having special legal privileges."
Equity connotes making sure that following the letter of the law doesn't result in an unfair outcome.
Equality connotes making sure that no one is "above the law."
"Equality" means everyone is treated the same. In law, this means everyone get the same punishment for
a crime. People are treated as equals. The basis of "equality" is treating everyone the same.
"Equity" means everyone is treated as they deserve based on the circumstances, which means, in turn,
that everyone does not get the same punishment for similar crimes. A first-time criminal, for example, may
receive a lighter punishment than a long-time criminal who commits the same crime. The basis of "equity"
is treating people fairly according to their individual needs.
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6. Discuss the relationship between Law and Society. 5, Jan.10
Discuss about society and law. 6, Jan.11, Jan.10
Law is a system of rules that are enforced through social institutions to govern behaviour. Laws can be
made by legislatures through legislation, the executive through decrees and regulations, or judges
through binding precedent and jurisdictions. A society is a community or group of people united together
by some common bond and involved in persistent interpersonal relationships such as social status, roles
and social networks, or a large social grouping sharing the same geographical or social territory, typically
subject to the same political authority and dominant cultural expectations.
The formation of common bond in society depends on some uniformity of factors like nearness, nature of
the people, habit, custom, inhibition, beliefs, culture, tradition etc. It helps the members to form the rules
of social behavior. The punishment (generally excommunication or ostracism) of disobeying the social
rules is come in the form of social disapproval. Whereas law unlike social rules is made as well as
enforced by the State. It is a rule of external human action enforced by the sovereign political authority.
The objective of law is to bring order in the society with a view to ensure progress and develop with some
sort of security regarding the future.
The legal system of a country reflects the rules of society. If there is a change social rules then we can
say that a change in social law just occurs. Conversely, change of law leads to change of the rules of
society. For example, when Bangladesh Nationalist Party (BNP) forms the government they change the
law against political unrest and under the new law lead to the parliamentary democracy in the country in
1990.
Law is a social science characterized by movement and adaptation. Laws are neither created nor applied
in a vacuum, on the other hand they created and used time and again for a purpose. Laws are intended to
move us in a certain direction that we assume is good, or prohibit movement in direction that we believe is
bad. So, we can say that laws had to be change according to the roles of the society.
Law and society are related to each other. Nothing can explain without any of them. Society becomes the
jungle without the law. Law also needs to be changed according to the changes the society faces,
because without the necessary changes law cannot keep pace with society. Without the control of the
law, the society became the jungle or at least barbaric. So, to keep the society peaceful, we need to
create a harmonious relationship between law and society.
The law affects every aspect of our lives; it governs our conduct from the cradle to the grave and its
influence even extends from before our birth to after our death. We live in a society which has developed
a complex body of rules to control the activities of its members. There are laws which govern working
conditions (e.g. by laying down minimum standards of health and safety), laws which regulate leisure
pursuits (e.g. by banning alcohol on coaches and trains travelling to football matches), and laws which
control personal relationships (e.g. by prohibiting marriage between close relatives).
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7. What do you understand by the rule of law? 6, Jul.10, Jan.10
Rule of law:
The Rule of Law is one of the most fundamental aspects of modern legal systems. Simply said, the rule
says, 'howsoever high you may be; the Law is above you'. It specifies that the Law is supreme and that
no human being is higher than the authority of Law.
The concept was introduced by Chief Justice Sir Edward Coke during the James I rule. Sir Coke said that
the King is under God and the Law and that the Law is supreme over executive.
The term 'Rule of Law' was derived from the French phrase la principe de legalite (the principle of legality)
The principles of Cole are developed by Dicey and are written in his book Law and the
Constitution (1885).
The Oxford English Dictionary has defined "rule of law" as ‘the authority and influence of law in society,
esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby
all members of a society (including those in government) are considered equally subject to publicly
disclosed legal codes and processes’.
It primarily refers to the influence and authority of law within society, particularly as a constraint upon
behavior, including behavior of government officials. Rule of law implies that every citizen is subject to the
law. It stands in contrast to the idea that the ruler is above the law, for example by divine right.
What are the three Rules of Law? 12, Jan.10
Dicey's Rule of Law:
A V Dicey stated three principles to the term 'Rule of Law'.
1. Supremacy of Law
2. Equality before Law
3. Predominance of Legal spirit
1. Supremacy of Law
The Rule of law states that, “no man is punishable or can be lawfully made to suffer in body or goods
except for a distinct breach of law established in the ordinary legal manner before the ordinary courts.”
In other words, (a) There must be supremacy of law. Law is the absolute supreme and predominant as
opposed to influence of arbitrary power or discretionary power. (b) No one shall be punished except for
definite breach of law. (c) The breach of law must be proved in a duly constituted court of law.
No citizen can be arrested or imprisoned, unless he violates specifically any law of the country in force
and is accused of a charge by the court. Thus the rule of law implies equal protection of law. Wade states
that Government is a subject of the Rule of Law, rather than the law being a subject of the Government.
2. Equality before Law
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In the second place, rule of law means that no man is above law. Every man whatever his rank or
condition, is subject to the ordinary law of the State and amenable to the jurisdiction of ordinary tribunals.
“What is law-legal right and legal obligation for me- must hold equally as such for all citizens.
In other words, Rule of Law means (a) equality before the law, (b) every citizen is subject to the ordinary
law of the land and (c) the citizen has to face trial in the same law courts, irrespective of his status or
position in the society. There is no need for extraordinary tribunals or special courts to deal with cases of
Government and its servants. Of course, Dicey accepted that administrative authorities are exercising
'judicial' functions though they are not 'courts'.
3. Predominance of Legal spirit
In the third place, the rule of law is the result of statutes and judicial decisions determining the rights of
private persons. Thus the constitutional law of the country follows from the ordinary law of the land. The
rights are a result of court judgements rather than from being enshrined in the Constitution.
a) The Constitution is a consequence (and not the source) of the rights of the individuals.
b) Thus, Courts are the guarantors of the liberty
c) Rights would be secured more adequately if they were enforceable in courts rather than just
being written in the Constitutional document.
d) Mere incorporation in a written constitution is of no use in the absence of effective remedies of
protection and enforcement.
Criticism
The three principles, which Dicey described in relation to the Rule of Law, have been criticized by many
jurists, including I. Jennings, H. Laski and W.A. Robson. The main criticisms are summarized below:
1. The emergency of Administrative Law:
With the increase of constitutional complexities, the government departments have made many
rules framed under various acts. This is known as Administrative Law. There are also special
tribunals for the settlement of professional disputes. At the time of Dicey (19
th
century Great
Britain) there existed separate military courts and courts for churchmen. The executive
department often uses the arbitrary and prerogative power in day-to-day’s work and for the
purpose of performing the administrative work applies the discretionary power in most cases.
Therefore, it is apparent that the Rule of Law is breached and the power of the government is far-
reaching.
2. Economic Inequalities:
In order to ensure legal equality Prof. Laski emphasizes the need of economic equality.
Punishment for the same offence varies because police enforcement is frequently partial.
Therefore, from the standpoint of law, the word ‘equality’ is meaningless, unless there is
economic equality followed by social and constitutional equality.
3. The supremacy of the Legislature:
The third principle of the Rule of Law is the supremacy of common law. But, in fact the principal
basis of the constitution of England is the supremacy of Parliament. The sovereignty of
Parliament in Britain has not been established by the county. Although the fundamental Rights of
a citizen are established upon the basis of conventional rules and the Court is the protector of
those rights, yet Parliament of Britain is the sole authority to bring any change over or to nullify
the existing rules. Therefore, is understood that Parliament is the fundamental basis of the
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Constitution of England and judging from the standpoint of modern age, the concept of the Rule
of Law is only a theoretical idea. This, however, does not apply to India because the constitution
of India is written and there is a provision of fundamental rights in the constitution.
Disadvantages of Dicey thesis:
• Dicey thesis was not completely accepted even in his era.
• Even at this time, there was a long list of statutes which permitted the exercise of discretionary
powers of the Crown which could not be called to the Court.
• Dicey instead of not just disallowing arbitrary powers has also insisted that administrative
authorities should not be given discretionary powers.
• He failed to distinguish between 'arbitrary powers' to 'discretionary powers'.
• He misunderstood the real nature of droit administratif which was successful in France.
What are the benefits of the rule of law? 7, Jul.10
The beneficial effect of the law upon society to a considerable extent from the fact that it creates and
maintains a sphere of security for individuals in certain basic conditions of life. The law protects
the life, bodily integrity, property transactions, family relations, and perhaps even the subsistence
and health of the members of the body politic. It makes it unnecessary for people to set up private
systems of protection against invasions of their privacy. It promotes the growth and maturing of
human personalities by creating ordered conditions beneficial to the development of their mental
and spiritual powers. It curbs physical or social adventure by those whose nature drives them to
seek mastery and arbitrary power over others. By stabilizing (within the limits set by the unruly
aspects of human nature) certain basic layers of conduct, the law helps to free the performance
of the higher tasks of civilization from constant attention to problems on the lower levels, which
may interface, with an adequate discharge of these higher functions. Furthermore, the law sets
up institutional frameworks to provide means and proper environments for carrying out the
manifold political, economic, and cultural tasks, which a progressive society must accomplish in
order to achieve satisfaction of the demands of its members. By performing these functions, the
law helps the creative, life-affirming powers latent in the social body to flow into constructive
channels, and it thereby proves to be an indispensable instrument of civilization.
Benefits of the rule of law:
1. It protects the liberty and rights of citizens.
2. It creates an atmosphere of peaceful living.
3. It enhances the caliber of citizens, legislatures and voters.
4. It helps to make administrative authorities confine to their limits.
5. It becomes a yard stick to test administrative actions.
6. It helps for the recognition and the growth of the concept of administrative law.
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10. ‘All are equal in the eyes of law.’ Discuss. 7, Jul.10
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An analysis of the above definition reveals that law is a general rule of human action. Laws, the author
and upholder of which is superhuman, are not within the scope of the term law as understood here. They
are within the province of quite a different science. The use of the term ‘law’ here does not express the
uniformities of the physical world, but is confined to the world of human beings.
Law as a rule of human action is a general rule. A rule applicable -to a particular individual commanding
has obedience is not law within the definition of Holland.
The term law as defined by Holland is again distinguishable from morality. We have seen above that law
is a general rule of human action. Such general rule of human action is again external. Law is not
concerned with thoughts, motives and inner feelings as such unless they are manifested in external
actions.
Law, therefore, deals with a general rule of external human action such actions which are exhibited
externally. In this sense law is quite distinct from morality, which considers what a man thinks and feels
along with what he does.
Then such general rules of external human action are enforced by a determinate authority. Law is thus
distinguished not only from all rules which, like the principles of morality and the so-called laws of honour
and of fashion, are enforced by an indeterminate authority, but also from all rules enforced by a
determinate authority, which is cither, on the one hand, superhuman, or, on the other hand, politically
subordinate. Such determinate authority is human, who is a sovereign political authority. Rules set by
such ah authority are alone properly called laws.
In order to emphasise the fact that laws, in the strict sense of the term, are thus authoritatively imposed,
they are described as ‘positive laws.’
Hobbes also distinguishes positive law in this sense from external law by observing that positive laws are
those which have not been from eternity, but have been made laws by the will of those that have had the
sovereign power over others.
Holland’s approach to law is in keeping with the Auslinian tradition’ of the analytical school and the same
criticisms which have been levelled against Austin’s theory of law apply with some force to Holland’s
concept of law. In the first place, it is historically inaccurate to regard Jaw as commands of the sovereign.
It ignores customary law.
From early times law has been obeyed as a divine command or as a custom of the land. In the second
place, it ignores ethical aspect of the law and makes no reference to the end and purpose of law. The aim
of law is lo secure the ends of justice, which aspect has been excluded from Holland’s definition of law. In
the third place, obedience to laws cannot always be attributed to fear.
Law is primarily just and it is obeyed in a large measure because it is right and just. And, lastly, Holland
imputes the capacity to frame laws only to sovereign political authority; denies the full connotation of the
term ‘law’ to not-full sovereign States. This is inaccurate.
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