Judiciary

LAW AND ITS SOURCES: Prof. M.S. Venugopal

Practically speaking, law has to be enforced. There are various agencies of enforcement of law. Enforcement of law has to be done in two important areas. One is the enforcement of criminal justice and the other is the enforcement of civil justice. Criminal justice is enforced by infliction of punishment by the state and civil justice is upheld by recognition of legal rights and by compelling the performance of obligations and when specific performances are not possible and feasible by compelling the payment of damages.

Court is the agency through which both these kinds of justice are administered. Courts have to have a set of pre-determined legal principles on the basis of which they can exercise their juristic authority. These pre-determined principles can be treated as the sources of law.

To state in a simple manner law is a branch of social science, which tries to control human behavior in terms of relationship established by the rights and obligations, which are enforced. Therefore the principles governing the rights and liabilities are the authority and sanctity for the courts to resolve disputes in any community. Therefore one can roughly venture to say that the institutions, which create the rights and liabilities can be treated as sources of law. Such institutions, which persuade judicial reasoning to arrive at certain judicial inferences are called historical sources and such institutions, which compel the courts to apply a given set of rules in a given set of facts can be treated as legal source. For the purpose of illustration the decision of the House of Lords is a historical source for the Supreme Court of India whereas the decision of the Supreme Court of India is a legal source to any High Court in India. Opinions of jurists are historical source whereas the decisions of the judges of higher courts are legal source for the lower courts.

Without referring to technical aspects one can safely say that the following institutions create legal rights and legal duties, which the courts are bound to recognize and apply.

1. Legislation:

In modern democratic society this is the most important institution in creating rights and liabilities of the citizens. In most of the countries, legislature is the law making organization of the Government and this legislature has different nomenclature in different countries such as the Congress in America, the Parliament in England and the Diet in Japan. This legislature may be bi-cameral or uni-cameral and in most of the democratic setups there is a preference to bi-cameral legislature for obvious reasons.

In England the Parliament is considered to be sovereign and the common law tradition in commonwealth countries envisages the concept of parliamentary sovereignty. But in countries, in which there are written constitutions, constitutional supremacy is the basic norm and the parliament can generally make law within the restraints of the constitutional aspirations.

In modern times due to certain reasons such as lack of expertise, lack of time, the parliament will not be in a position to enact all the necessary law for all situations and circumstances. Therefore the parliament delegates its law making power to the executive. Hence in modern countries the delegated or subordinate legislations take the responsibility of law making. The nomenclature for the law enacted by the subordinate legislation is, 'rules'. These rules and regulations must be within the policy of the enabling statute and must satisfy the standards imposed by the sovereign legislature.

To be continued….

Prof. M.S.Venugopal
J.S.S Law College
Mysore.

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