Sources of Law: Precedents and Agreement

Sources of law : Precedents and Agreement
• Every developed legal system possesses a judicial organ. The main

function of the judicial organ is to adjudicate the rights and obligations
of the citizens.
• In the beginning, in this adjudication, the courts are guided by customs
and their own sense of justice.
• As society progresses, legislation becomes the main source of law and
the judges decide cases according to it.
• These judgments later go on to become precedents and assist in law
and decision making.
Types of methods to determine precedents :
• In the inductive method, there is a great reliance placed upon the
decisions of the judges. Before deciding a case, the judges look into
previously decided cases of a similar nature by their own court or by
the superior court. From particular cases, they deduce general rules,
and apply them on the cases before them and decide accordingly.
• In the deductive method, there is a great reliance placed legislatures

and enacted statutes. In such a system, the cases are decided on the
basis the enacted legislature and statue that are codified and the judges
decide cases on the basis of these codes and not on the basis of
previously decided cases
Importance of precedents In the Ancient Legal System:
• Sir Edward Coke, in the preface of the sixth part of his report, has
been written that Moses was the first law reporter. ‘In the case of the
daughters of Zelophehad, narrated at the beginning of the twenty-
seventh chapter of the book of numbers, the facts are stated with the
great clearness and expressly as a precedent which ought to be
followed.
• Even in the Mahabharata, it has been stated that ‘The path is the right
one which has been followed by virtuous men.’ This may be
interpreted as giving a theory of precedent. In ancient legal systems of
Babylonia and China, the judicial decisions were considered to be a
great authority, and later on, they were embodied in code law.
In the modern legal system:
• Among the modern legal systems, the Anglo – American law is judge made law. It
is called ‘Common Law’. It developed mainly through judicial decisions. Most of
the branches of law, such as torts, have been created exclusively by judges. The
Constitutional Law of England, especially the freedom of the citizens, developed
through judicial decisions.
• In international law also, the precedents have their importance. The decisions of
the International Court of Justice are an important source of International law.
These precedents have been recognized by the International Court of Justice
by Article 38(2)(d) of the Statue of the International Court of Justice.
Types of precedents:
• Persuasive precedents: Persuasive precedent (also persuasive authority) is
precedent or other legal writing that is related to the case at hand but is not a
binding precedent on the court under common law legal systems such as English
law. However, a persuasive authority may guide the judge in making the decision
in the instant case.
• Higher Courts in other Circuits: A court may consider the ruling of a higher
court that is not binding. For example, a district court in the United States First
Circuit could consider a ruling made by the United States Court of Appeals for the
Ninth Circuit as persuasive authority.
• Horizontal Courts: Courts may consider rulings made in other courts that are of
equivalent authority in the legal system. For example, an appellate court for one
district could consider a ruling issued by an appeals court in another district.
• Statements made in obiter dicta: Courts may consider obiter dicta in opinions of
higher courts. Dicta of a higher court, though not binding, will often be persuasive
to lower courts
Stare Decisis:
• Stare decisis is the legal principle by which judges are

obliged to respect the precedents established by prior
decisions. The words originate from the phrasing of the
principle in the Latin maxim Stare decisis et non quieta
movere: “to stand by decisions and not disturb the
undisturbed.” In a legal context, this is understood to mean
that courts should generally abide by precedents and not
disturb settled matters.
Importance in Indian legal system :
• Much of contemporary Indian law shows substantial European and American
influence. Various legislations first introduced by the British are still in effect in
their modified forms today. During the drafting of the Indian Constitution, laws
from Ireland, the United States, Britain, and France were all synthesized to get a
refined set of Indian laws, as it currently stands.
• Manu’s central philosophy was tolerance and pluralism, and was cited
across Southeast Asia. Early in this period, which finally culminated in the
creation of the Gupta Empire, relations with ancient Greece and Rome were not
infrequent. The appearance of similar fundamental institutions of international law
in various parts of the world show that they are inherent in international society,
irrespective of culture and tradition.
• Inter-State relations in the pre-Islamic period resulted in clear-cut rules of warfare
of a high humanitarian standard, in rules of neutrality, of treaty law, of customary
law embodied in religious charters, in exchange of embassies of a temporary or
semi-permanent character.
Agreements of the laws and its origins :
• Custom has been one of the oldest sources of law. In ancient times, social
relations gave rise to several usages, traditions and customs. These were used to
settle and decide disputes among the people. Customs were practiced habitually
and violations of customs were disapproved and punished by the society. Initially
social institutions began working on the basis of several accepted customs. Most
of the laws had their birth when the State began converting the customs into
authoritative and binding rules.
• Religion then started regulating the behaviour of people and began invoking
“Godly sanction”, “fear of hell”, and “possible fruits of heaven”, for enforcing the
religious codes. It compelled the people to accept and obey religious codes.
Several religions came forward to formulate and prescribe definite codes of
conduct. The rules of morality also appeared in society.
• Legislation emerged as the chief source of law and the legislature got recognition as the
Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation
has come to be the most potent, prolific and direct source of law. It has come to be
recognized as the chief means for the formulation of the will of the State into binding
rules.
• Because of several pressing reasons like paucity of time, lack of expertise and increased
demand for law-making, the legislature of a State finds it essential to delegate some of its
law-making powers to the executive. The executive then makes laws/rules under this
system. It is known as Delegated Legislation. Currently, Delegated Legislation has come
to be a big source of Law. However, Delegated Legislation always works under the
superior law-making power of the Legislature.
• Judicial Decision has come to be an important source of Law. It is the responsibility of
the courts to interpret and apply laws to specific cases. The courts settle the disputes of
the people in cases that come before them. The decisions of the courts – the judicial
decisions, are binding on the parties to the case. These also get accepted as laws for future
cases. But not all judicial decisions are laws. Only the judicial decisions given by the apex
court or the courts which stand recognized as the Courts of Record, (like the Supreme
Court and High Courts of India) are recognized and used as laws proper
• Equity means fairness and sense of justice. It is also a source of Law. For
deciding cases, the judges interpret and apply laws to the specific cases. But laws
cannot fully fit in each case and these can be silent in some respects. In all such
cases, the judges depend on equity and act in accordance with their sense of fair
play and justice.
• The works of eminent jurists always include scientific commentaries on the
Constitution and the laws of each state. These are used by the courts for
determining the meaning of law. It helps the courts to interpret and apply laws.
The jurists not only discuss and explain the existing law but also suggest the future
possible rules of behaviour. They also highlight the weaknesses of the existing
laws as well as the ways to overcome these. Interpretations given by them help the
judges to interpret and apply Laws to specific cases. For example the works of
jurists like, Blackstone, Dicey, Wade, Phillips, Seeravai, B.P. Rau, D.D. Basu and
others have been always held in high esteem by the judges in India
Thankyou.

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Sources of law : Precedents and Agreement

• Every developed legal system possesses a judicial organ. The main

• In the deductive method, there is a great reliance placed legislatures

• Stare decisis is the legal principle by which judges are

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