JURISPRUDENCE – UNIT III - SOURCES AND TYPES OF LAW

SASI K.G.

 01. Sources of Law

Analytical Positivist School of Thought- Austin said that the term ‘source of law’ has three different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in the country.

2. This term refers to the historical document from which the body of law can be known.

3. This term refers to the causes that have brought into existence the rules that later on acquire the force of law. E.g. customs, judicial decision, equity etc.

Historical Jurists- Von Savigny, Henrye Maine, Puchta etc. – This group of scholars believed that law is not made but is formed. According to them, the foundation of law lies in the common consciousness of the people that manifests itself in the practices, usages and customs followed by the people. Therefore, for them, customs and usages are the sources of law.

Sociological Jurists- This group of scholars protest against the orthodox conception of law according to which, law emanates from a single authority in the state.  They believe that law is taken from many sources and not just one.

Ehlrich said that at any given point of time, the centre of gravity of legal development lies not in legislation, not in science nor in judicial decisions but in the society itself.

Duguit believed that law is not derived from any single source as the basis of law is public service. There need not be any specific authority in a society that has the sole authority to make laws.

02. Formal and Material Sources

Salmond on Sources of Law- Salmond has done his own classification of sources of law:

1. Formal Sources- A Formal Source is as that from which rule of law derives its force and validity. The formal source of law is the will of the state as manifested in statutes or decisions of the court and the authority of law proceeds from that.

2. Material Sources- Material Sources are those from which is derived the matter though not the validity of law and the matter of law may be drawn from all kind of material sources.

3. Historical Sources- Historical Sources are rules that are subsequently turned into legal principles. Such source are first found in an Unauthoritative form. Usually, such principles are not allowed by the courts as a matter of right. They operate indirectly and in a mediatory manner. Some of the historical sources of law are:

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are authoritative in nature and are followed by the courts. They are the gates through which new principles find admittance into the realm of law. Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to historical sources. According to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State cannot be considered as a source of law. However, according to Salmond, a statute is a legal source which must be recognized. Writings of scholars such Bentham cannot be considered as a source of law since such writings do not have any legal backing and authority.

03. Legal and Historical Sources

Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are authoritative in nature and are followed by the courts. They are the gates through which new principles find admittance into the realm of law. Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

Historical Sources- Historical Sources are rules that are subsequently turned into legal principles. Such source are first found in an Unauthoritative form. Usually, such principles are not allowed by the courts as a matter of right. They operate indirectly and in a mediatory manner. Some of the historical sources of law are: Customs, usages, practices etc.

04. Legislation

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is a statute and legislation is the normal source of law making. The majority of exponents of this school do not approve that the courts also can formulate law. They do not admit the claim of customs and traditions as a source of law. Thus, they regard only legislation as the source of law.

Historical School of Thought- This group of gentlemen believe that Legislation is the least creative of the sources of law. Legislative purpose of any legislation is to give better form and effectuate the customs and traditions that are spontaneously developed by the people. Thus, they do not regard legislation as source of law.

05. Supreme and subordinate Legislation

There are two types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the sovereign power of the state. It cannot be repealed, annulled or controlled by any other legislative authority.

2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign power and is dependent for its continual existence and validity on some superior authority.

Delegated Legislation- This is a type of subordinate legislation. It is well-known that the main function of the executive is to enforce the law. In case of Delegated Legislation, executive frames the provisions of law. This is also known as executive legislation. The executive makes laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the power to make subordinate legislation is usually derived from existing enabling acts. It is fundamental that the delegate on whom such power is conferred has to act within the limits of the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its main justification is that sometimes legislature does not foresee the difficulties that might come after enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample scope for adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1.            Parliamentary Control

01. Effectiveness of Parliamentary Control over Delegated Legislation

Administrative law is the bye-product of the increasing socio-economic functions of the State and the increased powers of the government. Administrative law as a separate branch of legal discipline, especially in India, came to be recognized by the middle of the 20th century. Today the administration is ubiquitous and impinges freely and deeply on every aspect of an individual’s life. Therefore, administrative law has become a major area for study and research. Administrative Law has been characterized as the most outstanding legal development of the 20th century. Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the government.

To meet emergency

Certain emergency situations may arise which necessitate special measures. In such cases speedy and appropriate action is required. The Parliament cannot act quickly because of its political nature and because of the time required by the Parliament to enact the law. In such cases quick action needs to be taken. In times of war and other national emergencies, the executive is vested with special and extremely wide powers to deal with the situation. There was substantial growth of delegated legislation during the two world wars.

To meet unforeseen contingencies

Parliament while deciding upon a certain course of action cannot foresee the difficulties, which may be encountered in its execution. Accordingly various statutes contain a 'removal of difficulty clause' empowering the administration to remove such difficulties by exercising the powers of making rules and regulations. These clauses are always so worded that very wide powers are given to the administration.

(i) Saves parliamentary time.

(ii) Government Ministers often consult interested bodies and parties before drafting statutory instruments.

(iii) Delegated legislation is more flexible than an Act of Parliament. It can be passed quickly and easily amended or revoked, so that the law is up to date. Therefore, it allows rapid change.

(iv) Delegated legislation helps in removing the difficulty clause and meet unforeseen emergencies expeditiously.

(v) Also helps in meeting situations of emergency and thus helps in reducing parliamentary pressure.

(i) Delegated legislation is not well publicized in contrast to debates on Bills in Parliament.
(ii) Parliament has insufficient time to scrutinize the laws. Parliament is not reviewing legislation properly.

(iii) Sub-delegation of powers a further problem, which causes complexity and confusion. It is impossible for anyone to keep abreast of all delegated legislation.

(iv) The large volume of delegated legislation produced every year (some 3,000 statutes annually) means that it is very difficult for Members of Parliament, let alone the general public, to keep up to date with the present law. This is exacerbated by the fact that delegated legislation is made in private, unlike Acts of Parliament which are made following public debates in Parliament.

02. Direct special control

This control mechanism is exercised through the technique of “laying” on the table of the House rules and regulations framed by the administrative authority. The notable use of this technique was made in the Reorganization Acts of 1939 to 1969, which authorised the President to reorganise the executive government by administrative rule-making. In England the technique of laying is very extensively used because all the administrative rule-making is subject to the supervision of Parliament under the Statutory Instruments Act, 1946 which prescribes timetable. The most common form of provision provides that the delegated legislation comes into immediate effect but is subject to annulment by an adverse resolution of either house.

By Section 4 of the Statutory Instruments Act, 1946, where subordinate legislation is required to be laid before Parliament after being made, a copy shall be laid before each House before the legislation comes into operation. However, if it is essential that it should come into operation before the copies are laid, it may so operate but notification shall be sent to the Lord Chancellor and the Speaker of the House of Commons explaining why the copies were not laid beforehand. Under Section 6 of the Statutory Instruments Act, 1946, the draft of any statutory instrument should be laid before the parliament.

03. Laying on Table

In almost all the Commonwealth countries, the procedure of ‘Laying on the Table’ of the Legislature is followed. It serves two purposes: firstly, it helps in informing the legislature as to what all rules have been made by the executive authorities in exercise of delegated legislation, secondly, it provides a forum to the legislators to question or challenge the rules made or proposed to be made.

The Select Committee on delegated Legislation summarized the laying procedure under following heads:

In this type of laying the rules and regulations come into effect as soon as they are laid. It is simply to inform the House about the rules and regulations.

01. Laying with immediate effect but subject to annulment

Here the rules and regulations come into operation as soon as they are laid before the Parliament. However, they cease to operate when disapproved by the Parliament.
In this process the rules come into effect as soon as they are laid before the Parliament, but shall cease to have effect if annulled by a resolution of the House.

This technique takes two forms: firstly, that the rules shall have no effect or force unless approved by a resolution of each House of Parliament, secondly, that the rules shall cease to have effect unless approved by an affirmative resolution.

Such a provision provides that when any Act contains provision for this type of laying the draft rules shall be placed on the table of the House and shall come into force after forty days from the date of laying unless disapproved before that period.

In this type of laying the instruments or draft rules shall have no effect unless approved by the House.

In India, there is no statutory provision requiring ‘laying of’ of all delegated legislation. In the absence of any general law in India regulating laying procedure, the Scrutiny Committee made the following suggestions:

(i) All Acts of Parliament should uniformly require that rules be laid on the table of the House ‘as soon as possible’.

(ii) The laying period should uniformly be thirty days from the date of final publication of rules; and

(iii) The rule will be subject to such modifications as the House may like to make.

02. Legal consequences of non-compliance with the laying provisions

In England the provisions of Section 4(2) of the Statutory Instruments Act, 1946 makes the laying provision mandatory for the validation of statutory instruments. In India, however, the consequences of non-compliance with the laying provisions depend on whether the provisions in the enabling Act are mandatory or directory.

In Narendra Kumar v. Union of India, the Supreme Court held that the provisions of Section 3(5) of the Essential Commodities Act, 1955, which provided that the rules framed under the Act must be laid before both Houses of Parliament, are mandatory, and therefore Clause 4 of the Non-Ferrous Control Order, 1958 has no effect unless laid before Parliament.

However, in Jan Mohammad v. State of Gujarat, the court deviated from its previous stand. Section 26(5) of the Bombay Agricultural Produce Markets Act,1939 contained a laying provision but the rules framed under the Act could not be laid before the Provincial legislature in its first session as there was then no functioning legislature because of World War II emergency. The rules were placed during the second session. Court held that the rules remained valid because the legislature did not provide that the non-laying at its first session would make the rules invalid.

04. Recommendations by the committee on subordinated legislation

The Committee on Subordinate Legislation has made the following recommendation in order to streamline the process of delegated legislation in India.

·                     Power of judicial review should not be taken away or curtailed by rules.

·                     A financial levy or tax should not be imposed by rules.

·                     Language of the rules should be simple and clear and not complicated or ambiguous.

·                     Legislative policy must be formulated by the legislature and laid down in the statute and power to supply details may be left to the executive, and can be worked out through the rules made by the administration.

·                     Sub-delegation in very wide language is improper and some safeguards must be provided before a delegate is allowed to sub-delegate his authority to another functionary.

·                     Discriminatory rules should not be framed by the administration.

·                     Rules should not travel beyond the rule-making power conferred by the parent Act.

·                     There should not be inordinate delay in making of rules by the administration.

·                     The final authority of interpretation of rules should not be with the administration.

·                     Sufficient publicity must be given to the statutory rules and orders.

The working of the Committee is on the whole satisfactory and it has proved to be a fairly effective body in properly examining and effectively improving upon delegated legislation in India. Sir Cecil Carr aptly remarks: “It is evidently a vigorous and independent body.”

05. Is Parliamentary control really effective In India?

The legislative control over administration in parliamentary countries like India is more theoretical than practical. In reality, the control is not that effective as it ought to be. The following factors are responsible for the ineffectiveness of parliamentary control over delegated legislation in India.

·                     The Parliament has neither time nor expertise to control the administration which has grown in volume as well as complexity.

·                     The legislative leadership lies with the executive and it plays a significant role in formulating policies.

·                     The very size of the Parliament is too large and unmanageable to be effective.

·                     The majority support enjoyed by the executive in the Parliament reduces the possibility of effective criticism.

·                     The growth of delegated legislation reduced the role of Parliament in making detailed laws and increased the powers of bureaucracy.

·                     Parliament’s control is sporadic, general and mostly political in nature.

·                     Lack of strong and steady opposition in the Parliament have also contributed to the ineffectiveness of legislative control over administration in India.

·                     There is no automatic machinery for the effective scrutiny on behalf of the Parliament as a whole; and the quantity and complexity are such that it is no longer possible to rely on such scrutiny.

06. Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate enactments but they can declare them inapplicable in special circumstances. By doing so, the rules framed do not get repealed or abrogated but they surely become dead letter as they become ultra vires and no responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can be complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will definitely minimize the dangers of enacting a vague legislation.

06. Place of legislation among other sources of law

01. Salient Features of Legislation over Court Precedents

1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate any legislative measure or provision that has become meaningless or ineffective in the changed circumstances. Legislature can repeal a law with ease. However, this is not the situation with courts because the process of litigation is a necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of functions. Legislature can make a law by gathering all the relevant material and linking it with the legislative measures that are needed. In such a process, legislature takes help of the public and opinion of the experts. Thus, public opinion also gets represented in the legislature. This cannot be done by the judiciary since Judiciary does not have the resources and the expertise to gather all the relevant material regarding enforcement of particular principles.

3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is because legislations are made applicable to only those that come into existence once the said legislation has been enacted. Thus, once a legislation gets enacted, the public can shape its conduct accordingly. However, Judgments are mostly retrospective. The legality of any action can be pronounced by the court only when that action has taken place. Bentham once said that “Do you know how they make it; just as man makes for his dog. When your dog does something, you want to break him off, you wait till he does it and beat him and this is how the judge makes law for men”.

4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she is in constant interaction with all sections of the society. Thereby, opportunities are available to him correct the failed necessities of time. Also, the decisions taken by the legislators in the Legislature are collective in nature. This is not so in the case of Judiciary. Sometimes, judgments are based on bias and prejudices of the judge who is passing the judgment thereby making it uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and explanations whereas Judicial Pronouncements are usually circumscribed by the facts of a particular case for which the judgment has been passed. Critics say that when a Judge gives Judgment, he makes elephantiasis of law.

02. Difference between Legislation and Customary Law

1. Legislation has its source in theory whereas customary law grows out of practice.

2. The existence of Legislation is essentially de Jure whereas existence of customary law is essentially de Facto.

3. Legislation is the latest development in the Law-making tendency whereas customary law is the oldest form of law.

4. Legislation is a mark of an advanced society and a mature legal system whereas absolute reliance on customary law is a mark of primitive society and under-developed legal system.

5. Legislation expresses relationship between man and state whereas customary law expresses relationship between man and man.

6. Legislation is precise, complete and easily accessible but the same cannot be said about customary law. Legislation is jus scriptum.

7. Legislation is the result of a deliberate positive process. But customary law is the outcome of necessity, utility and imitation.

07. Interpretation of statutes

Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is often necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or vagueness in the words of the statute that must be resolved by the judge. To find the meanings of statutes, judges use various tools and methods of statutory interpretation, including traditional canons of statutory interpretation, legislative history, and purpose. In common law jurisdictions, the judiciary may apply rules of statutory interpretation both to legislation enacted by the legislature and to delegated legislation such as administrative agency regulations.

01. History of Statutory interpretation

Statutory interpretation first became significant in common law systems, of which England is the exemplar. In Roman and Civil law, a statute (or code) guides the magistrate, but there is no judicial precedent. In England, Parliament historically failed to enact a comprehensive code of legislation, which is why it was left to the courts to develop the common law; and having decided a case and given reasons for the decision, the decision would become binding on later courts.

Accordingly, a particular interpretation of a statute would also become binding, and it became necessary to introduce a consistent framework for statutory interpretation. In the construction (interpretation) of statutes, the principle aim of the court must be to carry out the "Intention of Parliament", and the English courts developed three main rules (plus some minor ones) to assist them in the task. These were: the Mischief Rule, the Literal Rule, and the Golden rule.

Statutes may be presumed to incorporate certain components, as Parliament is "presumed" to have intended their inclusion. For example:

·                     Offences defined in criminal statutes are presumed to require mens rea (a guilty intention by the accused), Sweet v Parsley.

·                     A statute is presumed to make no changes in the common law.

·                     A statute is presumed not to remove an individual's liberty, vested rights, or property.^[3]

·                     A statute is presumed not to apply to the Crown.

·                     A statute is presumed not to apply retrospectively (whereas the common law is "declaratory", Shaw v DPP).

·                     A statute is to be interpreted so as to uphold international treaties; and any statutory provision which contravene EC treaties are effectively void, Factortame.^[5]

·                     It is presumed that a statute will be interpreted eiusdem generis, so that words are to be construed in sympathy with their immediate context.

Where legislation and case law are in conflict, there is a presumption that legislation takes precedence insofar as there is any inconsistency. In the United Kingdom this principle is known as parliamentary sovereignty; but while Parliament has exclusive jurisdiction to legislate, the courts (mindful of their historic role of having developed the entire system of common law) retain sole jurisdiction to interpret statutes.

02. General principles

Meaning

The judiciary interprets how legislation should apply in a particular case as no legislation unambiguously and specifically addresses all matters. Legislation may contain uncertainties for a variety of reasons:

·                     Words are imperfect symbols to communicate intent. They are ambiguous and change in meaning over time. (The word 'let' used to mean 'prevent' or 'hinder' and now means 'allow'. The word 'peculiar' is used to mean both specific and unusual, e.g. "kangaroos are peculiar to Australia," and "it's very peculiar to see a kangaroo outside Australia."

·                     Unforeseen situations are inevitable, and new technologies and cultures make application of existing laws difficult. (Is e-mail subject to the same protection as documents held by a person, or is it considered less protected since it is in the hands of a third party?)

·                     Uncertainties may be added to the statute in the course of enactment, such as the need for compromise or catering to special interest groups.

Therefore, the court must try to determine how a statute should be enforced. This requires statutory construction. It is a tenet of statutory construction that the legislature is supreme (assuming constitutionality) when creating law and that the court is merely an interpreter of the law. Nevertheless, in practice, by performing the construction the court can make sweeping changes in the operation of the law.

Statutory interpretation refers to the process by which a court looks at a statute and determines what it means. A statute, which is a bill or law passed by the legislature, imposes obligations and rules on the people. Statutes, however, although they make the law, may be open to interpretation and have ambiguities. Statutory interpretation is the process of resolving those ambiguities and deciding how a particular bill or law will apply in a particular case.

03. Statements of the legislature

Legislative bodies themselves may try to influence or assist the courts in interpreting their laws by placing into the legislation itself statements to that effect. These provisions have many different names, but are typically noted as:

·                     Findings;

·                     Declarations, sometimes suffixed with of Policy or of Intent; or

·                     Sense of Parliament, or of either house in multi-chamber bodies.

These provisions of the bill simply give the legislature's goals and desired effects of the law, and are considered nonsubstantive and non-enforcable in and of themselves.^[7][8]

01. Canons

Also known as canons of construction, canons give common sense guidance to courts in interpreting the meaning of statutes. Most canons emerge from the common law process through the choices of judges. Proponents of the use of canons argue that the canons constrain judges and limit the ability of the courts to legislate from the bench. Critics argue that a judge always has a choice between competing canons that lead to different results, so judicial discretion is only hidden through the use of canons, not reduced.

02. Textual

Textual canons are rules of thumb for understanding the words of the text. Some of the canons are still known by their traditional Latin names.

Plain meaning

When writing statutes, the legislature intends to use ordinary English words in their ordinary senses. The United States Supreme Court discussed the plain meaning rule in Caminetti v. United States, 242 U.S. 470 (1917), reasoning "[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain... the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."

04. Rule against surplusage

Where one reading of a statute would make one or more parts of the statute redundant and another reading would avoid the redundancy, the other reading is preferred.^[9]

Ejusdem generis ("of the same kinds, class, or nature")

When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

Expressio unius est exclusio alterius ("the express mention of one thing excludes all others")

Items not on the list are impliedly assumed not to be covered by the statute or a contract term.^[10] However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

In pari materia ("upon the same matter or subject")

When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter.

Noscitur a sociis ("a word is known by the company it keeps")

When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

Reddendo singula singulis or "referring each to each"

"When a will says "I devise and bequeath all my real and personal property to A", the principle of reddendo singula singulis would apply as if it read "I devise all my real property, and bequeath all my personal property, to A", since the word devise is appropriate only to real property and the term bequeath is appropriate only to personal property."

Generalia specialibus non derogant ("the general does not detract from the specific")

Described in The Vera Cruz as: "Now if anything be certain it is this, that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any evidence of a particular intention to do so." This means that if a later law and an earlier law are potentially—but not necessarily—in conflict, courts will adopt the reading that does not result in an implied repeal of the earlier statute. Lawmaking bodies usually need to be explicit if they intend to repeal an earlier law.

08. Precedents

01. Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd. v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority, then the weight  should be given on the basis of rational and logical reasoning and we should not bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an inconsistency in decision between the benches of the same court, the decision of the larger bench should be followed.

02. What is the meaning of Precedent as a source of law?

Till the 19^th Century, Reported Court Precedents were probably followed by the courts. However, after 19^th century, courts started to believe that precedence not only has great authority but must be followed in certain circumstances. William Searle Holdsworth supported the pre-19^th century meaning of the precedence. However, Goodheart supported the post-19^th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the law, but they ‘declare’ what the law has always been. This theory believes that the Principles of Equity have their origin in either customs or legislation. However, critics of this theory say that most of the Principles of Equity have been made by the judges and hence, declaratory theory fails to take this factor into regard.

03. Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or not. They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take precedence into consideration and to which they will attach such weight as it seems proper to them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent. There are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment.

7. Erroneous Decision

09. Importance of precedents

In a common law system, judges are obliged to make their rulings as consistent as reasonably possible with previous judicial decisions on the same subject. The Constitution accepted most of the English common law as the starting point for American law. Situations still arise that involve rules laid down in cases decided more than 200 years ago. Each case decided by a common law court becomes a precedent, or guideline, for subsequent decisions involving similar disputes. These decisions are not binding on the legislature, which can pass laws to overrule unpopular court decisions. Unless these laws are determined to be unconstitutional by the Supreme Court, they preempt the common law precedent cases. Judges deciding cases are bound by the new law, rather than the precedent cases.

To better understand how the common law works, assume that there is a hypothetical drug, Zoneout, that is a psychoactive drug with some medical uses but a high potential for abuse: It is addictive and users lose their interest in going to work.

If Parliament writes the statute regulating Zoneout very clearly and specifically—a complete ban on prescribing or using Zoneout—then the court’s role is limited; if the physician prescribes Zoneout, then the physician has violated the statute and is guilty of a crime. All the cases involving prescriptions for Zoneout will look the same and the law will not evolve. But assume the statute is vague: no prescriptions for dangerous drugs. Then the court will have to decide under which circumstances Zoneout is a dangerous drug and when it is permissible to use it.

Assume that the court decides that Zoneout is a dangerous drug for treating workplace stress. That decision is then published and made available to the public. When the next case of a prescription for Zoneout comes before the court, the judge would be expected to follow the previous decision (the precedent) or to explain why it did not apply. The next case involves a Zoneout prescription for a patient with severe anxiety secondary to cancer treatment. The judge rules that Zoneout is not a dangerous drug under these facts because the risk of addiction is outweighed by the benefits of suppressing the anxiety. As more judicial opinions are written on prescribing Zoneout, it will become clearer when it is legal to use it and when it is prohibited. These opinions are the common law precedent on the prescription of Zoneout. They tell a physician when it is permissible to use Zoneout.

The value of a common law system is that the law can be adapted to situations that were not contemplated by the legislature. There are two disadvantages. First, judges must follow the precedent cases. If they do not, then it is impossible to predict what the law is. The second is that with hundreds of cases being decided every day, it is hard to keep up with the relevant decision. It is not unusual for several courts to be deciding cases on the same subject at the same time, with no good way to coordinate their opinions. Frequently the courts will reach different conclusions about the law. The state court in San Francisco might ban the use of Zoneout in the workplace, but the court in Los Angeles might allow it. Until the California Supreme Court resolves the issue, medical care providers in the two different regions are facing different laws. This type of split also happens between state courts of appeal, sometimes with three or four parts of the country under different interpretations of a given state law.

The alternative to the common law system is called a civil law system. In a civil law country, the legislatures pass very specific statutes, and these are applied by the courts. Each judge who decides a case looks to the statute, rather than the previous cases, for guidance. In theory, in ambiguous cases each judge is free to reinterpret the statute as necessary to fit the facts of the specific case. Although this interpretation need not draw on previous decisions by other judges, civil law judges do try to ensure some consistency in the application of the law by taking into consideration previous court decisions.

10. Doctrine of stare decisis

01. What does 'Stare Decisis' mean

Stare decisis is a Latin term meaning "to stand by that which is decided". Stare decisis is a legal principle which dictates that courts cannot disregard the standard. The court must uphold prior decisions. In essence, this legal principle dictates that once a law has been determined by the appellate court (which hears and determines appeals from the decisions of the trial courts) to be relevant to the facts of the case, future cases will follow the same principle of law if they involve considerably identical facts.

02. Breaking Down 'Stare Decisis'

Stare decisis is a doctrine or policy of following rules or principles laid down in previous judicial decisions. It is the principal that maintains that previous decisions are to be followed by the courts. This policy dictates that the court must abide or adhere to decided cases. When a point has been settled by a decision in court, this forms a precedent that must not be departed from. However, this doctrine has been overruled by courts in some cases. International trade laws have not always followed prevous decisions and thus might produce inconsistent decisions.

11. Ratio decidendi and obiter dictum

8 Differences between Ratio Decidendi and Obiter Dicta are as follows:

01. Ratio Decidendi

1.            Meaning: ratio = the measure of a quantity in terms of another; decidendi = decision.

2.            Salmon defines: “the ratio decidendi may be described roughly as the rule of law applied by and acted on by the court, or the rule which the court regarded as governing the case……..

3.            The ratio decidendi has binding authority. It is more authoritative than obiter dicta.

4.            Rupert cross says: “if ratio decidendi is a rule of law expressly or impliedly treated by the judges as a necessary step in reaching his conclusion…….

5.            Case-laws: 1. bridges vs. hawkesqorth; 2. south Staffordshire water company vs. Sharman; 3. donoghue vs. Stevenson; Hedley by me co.ltd. Vs. Heller; etc.

6.            Salmond opines: “if we think of the rule of law as a line on graph, then the case itself is like a point through which that line is drawn………

7.            Dr. Good hart propounded “material test”. The rules of law based on “material facts” are ratio decidendi. It is the best method in finding “ratio”.

8.            Professor wambaugh propounded “reversal” test. According to this method, the decision and reasons given by the judge shall be reversed and observed.

02. Obiter Dicta

1.            Meaning: obiter = by the way; dicta (pl.) = sayings; dictum (sing.) = saying.

2.            An obiter dictum is a statement made by a judge in course of his judgment which may not be precisely relevant to the issue before him.

3.            An obiter dictum has no such binding authority. It is a by-product of the original judgment. They are only remarks and opinions of the judge.

4.            A dictum is a rule of law stand by a judge which was neither expressly nor impliedly treated by him as a necessary step in reaching his conclusion.

5.            Case-laws: 1. Triefus &co. vs. post office; 2. Behrens vs. Bertram mills circus ltd.; etc.

6.            Obiter dicta are unrealistic and contrary to current practice.

7.            The rules of law based on “hypothetical facts” are mere dicta.

8.            If the result is the same, giving no affect on the decision, then it is “obiter dictum”.

12. Theories about the creative role of judges

01. Introduction

Judicial creativity is the basis of judges' practice of the common law (‘judge made law') and also has an influence on enforcing positive law enacted by Parliament. Furthermore, it will be argued that this is not a discretionary misuse of power, but a basic function of the courts as an organ of state.

02. Distinguishing Law ‘Applying' And Law ‘Making'

The application of law is when a court or judge simply enforces a prior legal principle in its entirety, as derived from an established source of law. This may include the application of precedent or literal applications of statute.

For judges to make law, their approach to an area must seek a result which is in some way incongruous with the result prescribed by prior sources of law. This includes departures from precedent or teleological interpretation of statute.

03. Does Precedent Bind Judges To Applying The Law?

‘Precedents serve to illustrate principles and to give them fixed certainty' and as such it would appear that they act to limit the capacity for judicial creativity. The London Tramways decision supported this view of precedent by binding the House of Lords to its previous decisions and affirming the idea of stare decisis within the common law. However, the modern doctrine of precedence can be seen to have departed considerably from this position, especially with the advent of the Practice Settlement 1966, which contra to London tramways, allowed Lords to depart from its previous decisions. In the present state of affairs, Supreme Court judges ‘have considerable leeway to expand on or distinguish the past conclusions of their colleagues'.

04. Legal Theories Supporting Application And Creation

The legal theories of natural law and legal positivism support the idea of judicial application and judicial creativity respectively. The theory of natural law asserts that all law pre-exists codification. Natural law is considered to be a ‘higher law' derived from the essential rules which govern human coexistence. Proponents of natural law believe therefore that in common law, legal solutions exist as objective moral norms which may be found through reasoning. As such all progression in common law can be seen as applications rather than creations, even when a court acts without express provision of statute or precedent. An example of this was Shaw v DPP in which the appeal of a man publicising prostitutes in a magazine was dismissed on the principle that he'd conspired to ‘corrupt public morals', an innovative approach which proponents of natural law would believe to be applied from the moral norms.

Contra to the position of natural law is that of legal positivism which states that morality and law are distinct and that law does not exist outside of human enactment. Natural positivists would regard the ruling in Shaw differently to natural lawyers. They would suggest that the judges had posited new law, derived not from morality, but social norms. This is the idea of the ‘activist' judge, who facilitates the adaptation of the common law to current social consensus.

05. Is It Possible For Judges To Exclusively Apply The Law?

For judges to act solely as applicators of law they must be ‘political, economic and social eunuchs'. They must always ask what the law requires and not what justice requires. It is argued that as judges consistently come across ‘moral, political and social issues in the cases that come before them' it is impossible for them to act in such a mechanical capacity, especially seeing as the common law is not subject to express codification. Instead, it is required of judges to ‘have regard to common sense, legal principle and public policy in that order' as opposed to purely legal principle. It can be said that a judicial decision which was reached via consideration of political concerns and common sense (the judge's personal principles) is in some capacity creative. It is argued that judicial creativity is a product of the political role of courts. The interaction of courts with the law and governments (in a checking capacity) provides the essential ‘legal framework' for government power, without which there would be no legitimacy.

06. The Interpretation Of Law: Application Or Creativity

In making decisions (with regard to statute or the common law) judges must give regard to sources of law. They may employ a ‘meticulous examination of the language used' (a literal application of law) or alternately pay ‘more attention to the apparent object' of the source. The latter such reading was evident in the Ghaidan v Godin-Mendoza case in which the House of Lords (under S.3(1) of the Human Rights Act 1998) reworded a clause in the Rent Act 1977 for the purpose of granting the homosexual partner of a deceased tenant the same rights as a heterosexual couple (though this was not expressly provided for in the act). It can be argued that in this instance, by going beyond the defined limits of a statute the court acted in a creative capacity, in the interests of present consensus. In this case it could be argued that similarly to Shaw v DPP, the court acted not only as law makers, but ‘policy makers' as well. This role has been described as that of the ‘dynamic' judge.

In the area of statute law at least, judicial creativity can be regarded as the exception rather than the rule. Constitutional tools such as the Human Rights Act have availed judges with an opportunity to approach legal problems more creatively but for the most part, as stated by Lord Diplock, ‘When the meaning of the statutory words is plain and unambiguous' judges should not forbear from enacting them for fear that ‘doing so would be inexpedient or even unjust or immoral'.

07. Judicial Perspectives On Whether Judges Make Or Apply Law

The division among judges on the issue has been described as a ‘pervasive dichotomy' which encompasses those who support ‘doctrinal certainty' and those whose support ‘doctrinal innovation'.

A judge who prefers the more restricted judicial role is Lord Reid, who in Knuller said of the decision in Shaw, that although he had dissented in that case he thought that the precedent must still ‘stand and apply to cases reasonably analogous'. Interestingly he refused to adopt a creative stance to reverse a decision which he disagreed with as it was made in a creative capacity.

In favour of ‘doctrinal innovation' Lord Scarman asserts that the courts are one of ‘two law making institutions' within the constitution. He concedes however that the courts will leave overtly political concerns to Parliament.

A final perspective which appears to be close to a synthesis of the two is the view of Lord Radcliffe. He states that if judges at least purport to adhere to the idea of ‘doctrinal certainty' then ‘respect' for the common law ‘will be greater'. He states that judges should ‘keep quiet about their legislative function' as the ‘image of the judge, objective, impartial, erudite' is one which bears the law in higher esteem.

On balance it is clear that judges often create the law, especially when issues of moral or political contention are at stake. Furthermore, it is not the role of the courts to shy away from these issues and it is their flexible approach to law making which allows the common law to adhere to social consensus.

13. Comparative merits and demerits of precedents over legislation

01. Advantage of Court Precedents over Legislation

1. Dicey said that “the morality of courts is higher than the morality of the politicians”. A judge is impartial. Therefore, he performs his work in an unbiased manner.

2. Salmond said that “Case laws enjoys greater flexibility than statutory law. Statutory law suffers from the defect of rigidity. Courts are bound by the letter of law and are not allowed to ignore the law.”

Also, in the case of precedent, analogical extension is allowed. It is true that legislation as an instrument of reform is necessary but it cannot be denied that precedent has its own importance as a constitutive element in the making of law although it cannot abrogate the law.

3. Horace Gray said that “Case law is not only superior to statutory law but all law is judge made law. In truth all the law is judge made law, the shape in which a statute is imposed on the community as a guide for conduct is the statute as interpreted by the courts. The courts put life into the dead words of the statute”.

4. Sir Edward Coke said that “the function of a court is to interpret the statute that is a document having a form according to the intent of them that made it”.

5. Salmond said that “the expression will of the legislature represents short hand reference to the meaning of the words used in the legislature objectively determined with the guidance furnished by the accepted principles of interpretation

14. Custom

Salmond said that ‘Custom is the embodiment of those principles which have commended themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and regarded as legally binding by those to whom the rules are applicable, which are adopted by the courts and applied as a source of law because they are generally followed by the political society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

3. Law formulated by doctrinal writings and scientific discussions of legal principles.

15. Reasons for recognition of custom as a source of law

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law which got its content from habits of popular action recognized by courts, or from habits of judicial decision, or from traditional modes of juristic thinking, was merely an expression of the jural ideas of the people, of a people’s conviction of right – of its ideas of right and of rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as source of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human association becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a conception posterior to that of themestes or judgment.”

16. Essentials of a valid custom

Essential Ingredients of Custom are the following

1. Antiquity

2. Continuous in nature.

3. Peaceful Enjoyment

4. Obligatory Force

5. Certainty

6. Consistency

7. Reasonableness

17. Juristic writings

The opinions expressed in the writings of eminent jurists shall be considered as law, in case no legislation, precedent or customary law are prevalent for the time being in the society in the area of the concerned matter.

18. Classification of law

Austin classifies the types of laws as

1. Divine Law- Given by god to men

2. Human Law - Given by men to men

   a. Positive Laws- Statutory Laws

   b. Not Positive Laws- Non- Statutory Laws, Customs, Traditions etc.

There are different meanings of the word law. Perhaps this is best conveyed by the view of Baron De Montesque in his book, Spirit of the Law, where he wrote:

“Laws in the wider possible connotations are any necessary relation arising from a thing in nature. In this sense, all beings have their laws; the Deity his laws, the material world it laws, the intelligence superior to man its laws, the beasts their laws, man his law…”

From the above it can be seen that law is used in multipoe senses. Thus it is imperative for the different types of laws to be considered. They are:

1. Eternal Law
2. Divine Law
3. Natural Law
4. Human or Positive Law

1. Eternal Law: The word eternal means something that would last forever. Eternal laws are laws that have applied since the beginning of time and would exist till the end of time. These laws cannot be changed. A very good example of eternal law is the law of gravity. From the inception of time, it has been understood that what goes up must come down. This law would not be changed and is thus right to be regarded as eternal.
2. Divine Law: Divine law is referred to as laws made by a deity to govern the affairs of man. A good example of divine law can be found in Islamic law as postulated in the Q’uran. These laws are said to be given by God to the Prophet Muhammed(SAW) in order to guide the affairs of man.

The logic behind the use of divine law stems from the fact that God, accepted as all knowing and all wise, is in the best position to make laws for the use of mankind.

3. Natural Law: In the legal sense, natural law can be said to be law as espoused by the natural law theorists. This law is said to be law that is innate in all mankind and can be deduced through the use of reason. For example, it is accepted in all cultures that murder is wrong and should be punished.

Natural law is said to be the guide which positive law must follow in order for it to be valid. If positive law is at variance with natural law, it could lead to injustice in the society.

4. Positive or Human Law: Positive law can also be regarded as human law. These are laws made by man in order to guide the conduct of members of the society. They are laws made by persons given the authority to do so either directly or indirectly by the society. Legal positivism doesn’t concern itself with morals. Once a law has been enacted by persons in authority, it is valid.

According to Professor HLA Hart, a positivist,

” Law is a command and there is no necessary connection between law and morals or law as it is (lex lata) and law as it ought to be (de lege ferenda).”

Examples of positivist law include the 1999 Constitution, Company and Allied Matters Act, Banks and Other Financial Institutions Act of Nigeria and a host of others enacted by man.

The other common classifications are International Law, Municipal Law, Public Law and Private Law, Substantive Law and Procedural Law, Constitutional Law, Administrative Law, Civil Law, Criminal Law, Personal Laws such as Hindu Law or Mohameddan Law or Cannon Law, etc.

The classifications of law are the different categories into which all areas of law can be collated. A particular classification of law encompasses all types of law but it distributes them due to a particular unique characteristic.

The following are the major classifications of law:

1.            Public and Private Law

2.            Civil Law and Criminal Law

3.            Substantive and Procedural Law

4.            Municipal and International Law

5.            Written and Unwritten Law

6.            Common Law and Equity

19. Public and Private law

Public law can be defined as that aspect of law that deals with the relationship between the state, its citizens and other states. It is one that governs the relationship between a higher party, the state, and a lower one, the citizens. Examples of public law include Constitutional Law, Administrative Law, Criminal Law, International Law, and so on.

Private law, on the other hand, is that category of the law that concerns itself with the relationship amongst private citizens. Examples include the law of Torts, the Law of Contract, the Law of Trust, and so on.

01. Private Law

1. Private law concerns the smooth running of a society and covers areas in everyday life such as work, business dealings, employment, and education. 
2. Examples: law of tort, contract law, law of succession, employment law, property law, family law, labour law, commercial law, etc.

02. Public Law

1. Public law involves the State or government.
2. There are 3 main types of law that fall into public law category: constitutional law, administrative law and criminal law.
3. Constitutional law - controls how the government operates; resolves any disputes over constitutional matters, for example, who is entitled to vote.
4. Administrative law - controls how Ministers of State and public bodies should operate and make decisions.
5. Criminal law - Criminal law is part of public law because a crime is regarded as an action against society and the state as a whole.

20. Civil Law and Criminal Law

Civil law in this regard can be defined as the aspect of law that deals with the relationship between citizens and provides means for remedies if the right of a citizen is breached. Examples of civil law include the Law of Contract, the Law of Torts, Family Law etc.

Criminal Law on the other hand can be referred to as that aspect of law that regulates crime in the society. It punishes acts which are considered harmful to the society at large. An example of criminal law is the Indian Penal Code.

When treating a criminal case, the standard of proof to be used is proof beyond reasonable doubt as per Indian Evidence Act. Also, the burden of proof does not shift from the prosecution normally. What this means is that before a conviction can be gotten, the state has to prove the commission of the crime to be beyond reasonable doubt.

On the other hand, in civil cases, the standard of proof is on the balance of probabilities; as per Indian Evidence Act. Also, the burden of proof shifts between both parties when they need to establish their case. Judgment normally goes in the favour of the particular party that has been able to prove its case more successfully.

A law belongs in the civil bucket (because it is a civil law) or in the criminal bucket (because it is a criminal law). Civil law is the law of private rights and duties. As with substantive law, general examples include the laws regarding torts, contracts, and real property. A specific example of a civil law is a law providing that all contracts for the sale of real property must be in writing. Why is it a civil law? Because it deals with duties between private parties; and any violation of it is a wrong between the parties, not a wrong against the whole community. Criminal law, on the other hand, is the law of public rights and duties; put another way, it is the law that creates and controls wrongs committed against the whole community. Criminal law violations are called crimes. Specific examples include laws against assault, burglary, and robbery.

21. Substantive and procedural law

The first way to classify law is substantive or procedural. That is, a law belongs in the substantive bucket (because it is a substantive law) or in the procedural bucket (because it is a procedural law). A substantive law is a law that creates and controls the rights and duties of parties. General examples include the laws regarding torts (see chapter 15), contracts (see chapter 18), and real property (see chapter 25). A specific example of a substantive law is a law prohibiting trespassing on another’s property. Why? Because such a law creates and defines trespassing and puts would-be trespassers on notice regarding the liability (if it is civil trespassing) or punishment (if it is criminal trespassing) that they face for violating the law.

A procedural law, on the other hand, is a law that creates and controls the process of enforcing the rights and duties under substantive law. General examples include the rules of evidence, jurisdiction, and pleading and practice (which are referred to as either civil procedure or criminal procedure, depending on the type of proceeding). We will discuss civil procedure (i.e., steps in a civil case) in chapter 9. A specific example of a procedural law is a statute of limitations. A statute of limitations is a statute (see chapter 5) that creates a time limit for bringing a civil case (i.e., filing a lawsuit) or a criminal case (i.e., initiating a prosecution); typically, the time limit is measured from the date of the event giving rise to the lawsuit or prosecution. This means that in personal injury cases, for instance, a lawsuit must be brought within a certain period of time after the injury occurred; otherwise, it will be time-barred. The case could be very strong substantively; but that is immaterial because a court will dismiss the case on procedural grounds.

Substantive law is the main body of the law dealing with a particular area of law. For example the substantive law in relation to Criminal law include the Indian Penal Code.

Procedural law, on the other hand, is law in that deals with the process which must be followed in order to enforce the substantive law. Examples include the rules of the various courts and the Criminal Procedure Code, which is the procedural law in relation to the Indian Penal Code and other Criminal Laws. Civil Procedure Code is applicable to Civil Laws.

22. International law and Municipal law

Municipal/Domestic law is the aspect of law which emanates from and has effect on members of a specific state. An example of a municipal Nigerian law is the Constitution of the Federal Republic of Nigeria 1999(as amended) which applies in only Nigeria.

International law, on the other hand is the law between countries. It regulates the relationship between different independent countries and is usually in the form of treaties, international customs etc. An example of International law include the Universal Declaration of Human Rights and the African Charter on Human and People’s Rights.

Sources of international law:

• Article 38.1 of the Statute of the International Court of Justice: Treaties
• international customs
• general principles

01. Public International Law 

1. Public international law concerns the structure, relationship and conduct of sovereign states, analogous entities, and intergovernmental organizations. 
2. The sources for public international law development are custom, practice and treaties between sovereign nations, such as the Geneva Conventions.
3. Governs the relationship between provinces and international entities.
4. Includes these legal fields: treaty law, law of sea, international criminal law, international environmental law, the laws of war or international humanitarian law and international human rights law.
5. Public international law has a special status as law because there is no international police force, and courts (e.g. the International Court of Justice as the primary UN judicial organ) lack the capacity to penalise disobedience.

02. Private International Law

1. Also known as "conflict of laws".
2. Concerns which jurisdiction a legal dispute between private parties should be heard in and which jurisdiction's law should be applied.

23. Written and Unwritten Law

A law would not be regarded as written just because it is written down in a document. Written laws are those laws that have been validly enacted by the legislature of a country.

Unwritten laws on the other hand are those laws that are not enacted by the legislature. They include both customary and case law. Customary law as part of its basic characteristic is generally unwritten. Case law, though written down in a documentary format would be regarded as unwritten law based on the fact that it is not enacted by the legislature.

An example of this is the good neighbour principle established in the case of Donoghue vs. Stevenson. The principle posits that manufacturers of products should take utmost care in their manufacturing activities to ensure that the consumption of their product doesn’t result into harm to the consumer. This principle is not enacted in a statute but is a case law which is applicable in Nigerian Courts.

24. Common Law and Equity

In the legal sense, the term common law means the law developed by the old common law courts of the King’s Bench, the Courts of Common Pleas and the Courts of Exchequer.

The English common law is regarded as such because it is law common to all parts of England. It grew over time from the practices, customs and way of life of the people. It is largely unwritten. The first common law judge was the King himself. People who had disputes usually brought them to the King to settle them.

However, due to matters of state, the king didn’t have time to settle all cases. As a result of this, the king appointed members of his court who were to settle disputes in his stead. These judges had the authority of the king and any disobedience to them was treated as disobedience to the king and punishment was swift.