Sources of Law: Where Our Rules Come From

What is a source of law?

A source of law is where a legal rule comes from and why it has force. The form of law is the way the rule is written or shown (an Act, a regulation, a judgment, a contract).

• Primary sources make law: legislation, precedent, custom, treaties.
• Secondary sources explain law: textbooks, articles, commentaries by legal experts (sometimes called doctrine).

Legal systems differ:

• Civil-law systems (most of Europe, Latin America, many others) rely mainly on written codes; judges apply them.
• Common-law systems (India, the UK, the USA, Australia and others) also give a big role to precedent.
• Religious and customary systems, and many mixed systems, use religious norms or custom in some areas.

Legislation: how parliament makes law

Legislation (an Act, a statute) is law made by the legislature. It is the highest source after the constitution, and it can change or cancel older precedent and custom.

A typical journey of a bill (a draft law):

1. Ideas and drafting: from the government's programme, a commission's report, a public need or a private member. Often a consultation paper is published first.
2. First reading: the title is read; the bill is published.
3. Second reading: main debate on the general idea; a vote.
4. Committee stage: a small group checks it line by line and proposes changes (amendments).
5. Report stage and third reading: final changes and a final vote.
6. The other house (in a two-house parliament) goes through the same stages; differences are settled.
7. Assent: the head of state (in India the President, in the UK the monarch) signs. The bill becomes an Act and starts on the date set.

A legal act is any official rule-making document of a state body; Acts of parliament are the highest kind below the constitution.

Delegated (secondary) legislation

Parliament has little time and lacks technical knowledge for every detail. So an enabling (parent) Act gives power to others to make detailed rules:

• Regulations, rules, orders by ministers and government departments.
• By-laws by local councils, city corporations and public bodies (parking, parks, markets).
• Orders in emergencies, under strict limits.

Good points: quick, flexible, uses expert and local knowledge. Risks: less debate, many rules, power used by unelected people.

Controls: parliament can check or cancel these rules, and courts can strike them down as ultra vires (beyond the powers) if they go outside the parent Act, break fair procedure or are unreasonable.

Judicial precedent

Precedent means a decision in an earlier case guides later similar cases. The rule is called stare decisis: 'stand by what has been decided'. It makes the law fair (like cases treated alike) and predictable.

• The binding part is the ratio decidendi: the legal reason needed for the decision.
• Other remarks are obiter dicta ('things said by the way'): persuasive, not binding.
• Court hierarchy: higher courts bind lower courts. In India, the Supreme Court's law binds all courts (Article 141); a High Court binds courts in its state.
• Ways to avoid a precedent: overrule (a higher court changes the rule), reverse (an appeal court changes the result in the same case), distinguish (the facts are different enough).

Judges in civil-law countries are guided by earlier decisions too, but in theory the code, not the judgment, is the source.

Custom, religious norms, normative contracts and treaties

• Custom: a practice followed for a long time that people feel bound by. Courts accept it if it is old, certain, reasonable, followed continuously and does not break the law. It was the oldest source of law and is still important in local rights, trade usage and some family matters.
• Religious norms: in some countries or communities, rules from religion govern personal matters such as marriage, divorce and inheritance (for example personal laws in India, and religious law in some other states).
• Normative contracts: agreements that create general rules for many people, such as collective labour agreements between unions and employers, or agreements between government bodies.
• International treaties: once a country accepts a treaty, it binds the country; in many countries it must be turned into national law first.

Statutory interpretation: how judges read Acts

Words can be unclear or a situation may not have been imagined. Judges use four main approaches. Imagine a sign: 'No vehicles in the park'.

• Literal rule: give words their plain, ordinary meaning. A bicycle is a vehicle, so it is banned.
• Golden rule: use the plain meaning unless it gives an absurd result. An ambulance rescuing someone is surely allowed.
• Mischief rule: ask what problem (mischief) the law was made to stop: noise and danger from traffic. A child's toy car is not that mischief.
• Purposive approach: look at the whole purpose of the law, using reports and debates. Widely used today.

Helpers: the Act's own definitions section, the title and preamble, dictionaries, and earlier cases.

Key formulas and definitions

• Primary sources: legislation, precedent, custom, treaties (+ religious norms, normative contracts)
• Bill → readings → committee → vote → other house → assent → Act
• Parent Act → regulations / by-laws (delegated legislation); beyond power = ultra vires
• Precedent: stare decisis; ratio decidendi binds; obiter dicta persuade
• Avoid precedent: overrule, reverse, distinguish
• Interpretation: literal, golden, mischief, purposive

Worked examples

Common mistakes

• Thinking all law is written by parliament. Courts, custom, treaties and contracts are also sources.
• Thinking everything a judge says is binding. Only the ratio decidendi binds; obiter dicta only persuade.
• Thinking delegated legislation has no limits. It must stay inside the power of the parent Act, or it is void (ultra vires).
• Thinking a bill is law once it passes one house. It must pass all stages and receive assent.