Transcript Nature and Sources of Law

Nature and Sources of Law
Nature of Law: Law consists of systems of rules, standards, and procedures
that social institutions create and apply.
1. A simple definition would be misleading because law is so diverse and
complex.
2. Generally, the recognized rules and principles that govern and regulate
social conduct and the observance of which can be enforced in courts.
3. Operates to regulate the actions of persons in respect to one another and
in respect to the entire social group or society.
4. Affects every aspects of our lives.
5. Should be followed by everyone concerned.
Contd..
• Law is a formal mechanism of social control.
• Different scholars have defined law differently. For example, Salmond
says, “Law is the body of principles recognized and applied by the state
in the administration of justice”.
•
Similarly, Blackstone says, “Law is a rule of civil conduct, prescribed by
the supreme power of a State, commanding what is right and prohibiting
what is wrong”. For Austin, “Law is a command of the sovereign”.
• Law is made by a proper authority (Parliament, Council of Ministers etc.)
and its obedience is secured by force or state power.
• There is a hierarchy in the authority to make law. In countries which have
written constitutions, the constitution is on top of the hierarchy which
empowers or authorizes the parliament to make law (they are called
Acts of Parliament). Parliament may give authority to the council of
ministers or any other body (for example Nepal Rastra Bank) to make
law (they are called Rules, Regulations or By-laws). The rules framed by a
person or body without proper authority cannot have the validity of law.
Why Law is Needed?
• The law has the following purposes:
• To protect person and property and maintain peace and order in the
society. It prohibits conduct that society believes to be harmful to others
(Keeping Order).
• To give government and other authorities the power to act for the benefit
of society in general.
• To provide a framework that gives individuals broader freedom of choice.
For examples, it enables persons to make legally binding agreements
enforceable in the courts (Honouring Expectations).
• To promote equality and to achieve different socio-economic goals (such
as establishing a welfare state).
• To influence the conduct of persons and to preserve, guide and advance
the social values of society (such as sustaining liberty and justice).
Characteristics of Law
• Consistency (apply equally and uniform
manner).
• Predictability (enable to predict the outcome
of a course of conduct).
• Pervasiveness (cover all necessary areas).
• Flexibility (changes according to the needs of
the society).
• Enforceability (provide effective remedy in
case of violation).
Sources of Law
• Source is the place from where something originates. Therefore, 'source
of law’ means the origin from which rules of human conduct come into
existence and gain legal force or binding character.
• Laws are invariably derived from a number of sources including
legislation, judicial precedent, customs, and international treaties and
conventions.
Legislation:
• The term ‘legislation’ refers to that body of law formally enacted or
made by the institution of state which has law-making responsibility
under the constitution.
• A substantial proportion of current law is derived from legislation or
statute enacted by Parliament.
• Statutes passed by Parliament are referred to as primary legislation.
Contd.
• There are many occasions where parliament delegates its
general law-making powers to other persons or bodies.
• Parliament may enact an enabling Act so as to provide the
broad framework, the details being filled in by the executive
branch of the government (such as the Council of Ministers or
the President) by means of delegated legislation.
• As its name suggests, delegated legislation is law made by a
body or person to which Parliament has given limited powers of
law-making. More often than not, authority will be delegated to
the Council of Ministers, but it may also be conferred on local
authorities or other public undertakings.
• Delegated legislation can also take the form of by-laws. By-laws
are the means whereby a local authority, for instance, can make
legally binding rules for local application.
Precedents
• In addition to legislation, precedents (some call them judicial
precedents) or the previous decisions of the courts also important
sources of law.
• The precedent is not the decision itself reached by the court but the
rule of law contained within that decision. This element is known as
the ratio decidendi and must be distinguished from the obiter dicta
(things ‘said by the way’).
• Put very simply, the ratio of a case is the essential steps in the legal
reasoning which led the court to make that particular decision. At the
end of a case, a judge, before handing down a ruling in favour of one
or other of the parties, gives his or her reasons for the decision.
• Most of the judgments given by the higher courts are published in
one or more of the series of law reports available.
• Judicial precedent is based on the rule that the previous decisions of
a higher court must be followed by the lower courts.
Customs
• Customs is a habitual course of conduct observed uniformly and
voluntarily by the people. Early societies developed particular forms of
behaviour which came to be accepted as social norms to be followed by
the members of the community to which they applied.
• Today customs would be regarded as usage recognised by law, whether by
judicial precedent or through statutory intervention and hence they are
largely of historical interest.
• Occasionally, however, they are recognised by the courts as being of local
significance and may be enforced accordingly as exceptions to the general
law (e.g. concerning matrimonial relationship).
•
•
•
•
•
•
A custom must have the following characteristics to have a force of law:
It must be ancient or in practice since time immemorial.
It must have been practiced continuously.
It must be rational or reasonable.
It must be clear, certain and consistent.
It must not conflict with any existing law, e.g. legislation or precedents.
Academic writing or the opinions of experts
• In many countries, academics have had a significant influence
on the interpretation and development of the law.
• While not representing a formal source of law in the same
sense as legislation, for example, the opinions of leading
academics and commentators are, nevertheless, given
substantial weight by the legal profession and judiciary alike.
• In France and Germany, the works of highly reputable university
professors have great persuasive authority and are regularly
quoted by lawyers when presenting cases and, indeed, referred
to by judges in court decisions.
• In England, on the other hand, it is comparatively rare for a
lawyer to cite the opinions of even leading academics when
presenting a case before a court. Over the years, judicial
attitudes have gradually changed to the point now where the
views of modern-day eminent academics are given due
consideration when the court thinks it appropriate.
International Treaties and Conventions
• International treaties and conventions are also
important sources of law. In the case of Nepal,
according to Sec. 9 (1) of the Treaty Act, 2047, the
provisions of any international treaty or
convention to which Nepal is a party prevail over
the national law, in case there is any divergence
between the two.
• Thus, the provisions of the international treaties
and conventions to which Nepal is a party are
even superior sources of law in Nepal.