Unit III — Sources of Law: Legislation, Precedent & Custom

“Precedent is to case law what legislation is to statute law — a source, not merely evidence, of the law.” — adapted from Salmond

The Three Great Sources

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    ROOT["Sources of Law"]:::root
    ROOT --> A["Legislation<br/>(deliberate law-making —<br/>supreme & subordinate)"]:::leaf
    ROOT --> B["Precedent<br/>(judicial decisions —<br/>stare decisis)"]:::leaf
    ROOT --> C["Custom<br/>(long usage accepted<br/>as law)"]:::leaf

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Salmond’s division: formal source (the State’s will, which gives a rule legal force) and material sources (legislation, precedent, custom — which supply its content). The unit’s three essays correspond to the three boxes above; each demands kinds, comparative merits, and the leading authorities.

Legislation

Legislation is the making of law by a competent authority in deliberate form — for the Analytical school the only true source. Kinds: supreme (Parliament/State legislatures — subject in India only to the Constitution) and subordinate (delegated: rules, regulations, by-laws; colonial, executive, municipal, autonomous). Why it outranks precedent and custom in the exam’s comparison question: it is abrogative (can repeal), prospective and knowable in advance, made after deliberation, and exists before a dispute — whereas precedent must wait for litigation and custom for generations. The control on its delegate: delegated legislation is valid only within the parent Act and cannot supplant essential legislative functions (In re Delhi Laws Act, 1951).

Precedent — Stare Decisis, Ratio and Obiter

Stare decisis et non quieta movere [stand by what is decided and do not disturb the settled].

1. The doctrine in India: Article 141 — the law declared by the Supreme Court binds all courts; High Courts bind subordinate courts in their States; co-ordinate benches follow each other unless a larger bench differs.
2. Ratio decidendi — the principle of law necessary for the decision: the only binding element. Obiter dicta — things said by the way — persuade but never bind.
3. Kinds: original (creates the rule) and declaratory; authoritative (binding) and persuasive (foreign and co-ordinate decisions).
4. Escapes from a binding precedent: distinguishing (material facts differ), overruling (by a larger/higher bench), and per incuriam (rendered in ignorance of a binding statute or decision — not binding at all).
5. Merits vs demerits: certainty, equality and the growth of principled case law — against rigidity, the risk of perpetuating error, and bulk. The Supreme Court’s own practice (Bengal Immunity v. State of Bihar, 1955) shows it may depart from its earlier view when public interest demands.

Custom

Custom is the oldest source — conduct so long and uniformly observed that the community treats it as binding. Kinds: legal custom (general or local, binding proprio vigore [by its own force]) and conventional custom (usage binding through incorporation into contracts).

The schools quarrel over its rank: for Savigny custom is the primary source (legislation only declares the Volksgeist); for Austin custom is law only when the sovereign adopts it. Indian law follows the middle path — custom binds, but a statute always overrides it.

Interpretation of Enacted Law

Legislation speaks in general words; courts must apply them to particular facts. The three classic rules: literal (grammatical meaning first — Sussex Peerage), golden (depart from the letter only to avoid absurdity — Grey v. Pearson), and mischief (Heydon’s case, 1584 — what defect did the Act set out to cure?). The modern Indian default is purposive construction — reading the words in the light of the statute’s object — with internal aids (preamble, definitions) and external aids (reports, parliamentary history) in support.

✏️ Sample — the Precedent Essay That Scores

Skeleton: define precedent + stare decisis (translate the maxim) → Article 141 hierarchy in two lines → ratio vs obiter with one concrete illustration → the three escapes (distinguish, overrule, per incuriam) → merits/demerits table → close with Bengal Immunity: certainty is the rule, correction the safety-valve. Quote at least one maxim and one Article number — that pairing is where the marks sit.

📄 The full bundle (₹199) contains the complete Unit III — every source with PYQ boxes, the full interpretation section, comparative tables (legislation vs precedent vs custom) and blueprints — plus the Question Bank’s model answers to every Unit III essay asked since 2011. Get Notes + Question Bank — ₹199