Note on Binding sources of Law

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Binding Sources of Law

Binding sources of law refers to those sources by which rules of human conduct acquire legal force by becoming definite, uniform and compulsory. And, if a rule that comes from a binding source, it has to be followed by each and every person whether they like or dislike. These binding sources are as follows:

1. Legislation

Legislation, which is one of the most important sources of law, can be viewed from three diverse perspectives: Firstly, in the broad sense, legislation is that sources of law which consists in the declaration of legal rules by a competent authority. It may be legislature made law or judge-made law. Secondly, in the strict or narrow sense, legislation is the law made by the sovereign or subordinate legislature. In this sense, legislation signifies the written statute law and rules. And thirdly, in the general sense, legislation means the process of making law by the legislature in this sense, all functions of parliament will amount to legislation. Hence, the word legislation, as sources of law, is popularly used in it's second or strict sense.

There are two kinds of legislation: supreme legislation and subordinate legislation. The supreme legislation comes from or is enacted by supreme or sovereign power of the state. It is enacted by the highest law-making authority in a state, for example, the parliament in Nepal, India, USA or England, whereas, the subordinate legislation refers such legislation deriving its power from the supreme legislation. In any democratic state, all forms of legislative activity recognized by law, other than the power of parliament are subordinate and subject to parliamentary control. Rules and regulation made by executive, judiciary, colonies, municipal or autonomous bodies is known as subordinate legislation.

The parliament of Nepal has right to make any law amend it and repeal it whatever it pleases within the constitutional limit. The constitution as a law of the land, no legislative law can be made, amend or repeal. If the law made by parliament is inconsistent to the provisions of the constitution, it shall be void to the extent of such inconsistency. Legislation has the prominent role in shaping, developing, directing and controlling the business activities in modern time. In present, most of our business activities are regulated by the legislation.

 

2. Precedent

Precedent is a statement of law found in a judicial decision of superior courts which is taken and followed by the same court and also by subordinate courts as a rule while deciding the later cases of similar facts. The decision of the Supreme Court must be followed by the inferior courts and all government bodies. Precedent is a law itself.

Where there is legislation to decide the problems, the court must follow it but where there is no law to deal a new problem the court can make a decision in the light of justice and equity; such decisions are treated as law for that matter. Modern principles of business and commercial laws were evolved through case law and developed by the court. Thus, the precedent holds and has played a major role to formulate the business laws and principles in the changing context.

 

3. Customs or usages

In the general sense, custom is known as particular way of behavior of people in a particular society. But in the legal sense, custom is known as those rules of human conduct, established by usages which are adopted and recognized by the courts or by statutory law. When a large section of people is in the habit of doing a thing over an extended period, it may become necessary for courts to take note of it. Olivercrona defines custom as "a certain manner of acting, regularly observed within a society." That all custom or usages are law, in Nepal a son (now a daughter also) has an inherent right over the property of his father. The source of this law goes to ancient practice guided by the principles of 'Manu' and 'Yajnavalkya'. It, however, should be noted that all customs are not laws. For example, the wearing of white clothes by the son of the deceased father for a year is a custom but not a law. In modern day, in Nepal too, customs have had a profound impact on the legal system.

A custom or usage to be a valid and operate as a source of law, it must confirm to certain requirements of the law. Following are the essentials to a valid custom.

  1. Immemorial antiquity: In England, immemorial antiquity is a requisite of a custom. It meant that the custom should be so ancient that no living man could say when it has first started in India. The custom need not be immemorial but it should be in existence for a long time so that the custom can easily derive the force of law. This view is also convincing for us.
  2. Certainty: A custom must be certain. A claim which is uncertain and indefinite cannot be a custom. In the Transitory Case, it was held that a custom will not be a valid (legal) custom if it is uncertain and is dependent upon the discretion of a person because discretion may mean uncertainty.
  3. Consistency: A custom must not be contradictory or inconsistent with other customs in the same area. A custom which creates certain rights in a particular activity and other custom also create another right contrary to the first; such customs cannot be a valid custom.
  4. Reasonability: The custom must be reasonable. The court has to decide the reasonableness of a custom at the time of its origin and from the facts of the case. A custom may be deemed unreasonable for being one-sided for the following reasons.
  • If it is to the prejudice, for the advantage of any particular person.
  • If it is to the prejudice of any one, where there is not an equal prejudice or advantage to others in the same case.
  • If a man shall be judged for his own case.
  • If it entails a loss on one side without a benefit in consideration.

 

4. Agreements or conventions

When two or more parties agree to do or not to do a certain thing in a particular way, it becomes law for that matter. Such agreement which is not opposed to the law is treated as law for them, and they are bound to perform their duties, e.g. contracts. Similarly, when two or more nations are agreed on a certain area of conduct, it becomes convention or treaty by which the nations are bound and becomes law for those countries in that area.

 

5. Persuasive Sources of Law

The other sources, except mentioned earlier, have not legal force but it may be taken as a source while deciding the case by courts or enacting the law by parliament. Whether these are treated as a source or not depends upon the interest of courts or parliament. These sources cannot create a binding obligation to follow a law. These sources are as follows:

  1. A decision of foreign courts: Sometime, in critical cases, the court may take reference from the decision decided by the foreign courts. It often happens in the cases of constitutional conflict or most advance crimes or business disputes. The decision of foreign courts is to be taken as a source of law where there is no national law and customs or precedents to deal such problems. Even in our country, there are numbers of cases which are decided in the light of the decision of foreign court especially decision of Indian, English or American cases.
  2. The principles of foreign law: The modern principles of business and commercial law here been found and developed in England. The English courts have played a notable role to formulate the principles in English common law. Our Nepalese legal system being affected by the English common law system, the principles of English law are incorporated into our business and commercial laws. For example, Contract Act, 2056, Companies Act, 2063, Foreign Investment and Technology Transfer Act, 2049, Arbitration Act, 2055, etc. In all these laws we can find a greater impact of English law's principal; especially in business and commercial field.
  3. An opinion of experts/Jurist: The experts of law or jurists have been played a decisive role to develop and formulate the law. Jurists like Blackstone, Beccaria, Austin, Bentham, Hart, Kelson Sutherland, Coke, Marshal, etc. have a great impact in modern philosophy of law. In the case of difficulties the court may decide the case in the light of jurists' views. There are numbers of judgment and rule of laws which are nothing but the opinion of jurists.
  4. Textbooks, journals, periodicals, etc.: Description of legal norms and principles and analysis of legal provisions as well can be found in textbooks, journals or periodicals written by the legal scholars or published by some institutions working in the field of law and justice.These study materials gives a proper understanding of law and its rationality. While formulating a new law and deciding the cases, the legislatures or the judges may take these sources as a reference. They have great impact and influence in each and every legal and influence in each and every legal system as they can affect in making of new laws, amend them or repeal and law from the existing legal system.
  5. Rules of morality and religious books: The religious rules have a great impact in making and shaping the law of a country as the various rules of human activities are mentioned in the religious books. Similarly, the rules of morality regulate human behaviors in a different manner. While making a new law, the rules of morality prevailing in a particular area or nation or continent in a particular field for human action are taken as a source of law.

    Further, in the context of Nepalese law and the legal system, the provisions and principles adopted in the English law and the Indian laws have influence in the making and shaping the new law or existing law.

    References:

    Ghai, K. (n.d.). your article library. Retrieved from http://www.yourarticlelibrary.com/essay/law-essay/law-meaning-features-sources-and-types-of-law/40363/

    Shrestha, R. P. (2007). Business Law. Kathmandu: M.K.Books.

    Akrani, G. (2011, 09 2). Kalyan-city. Retrieved from http://kalyan-city.blogspot.com/: http://kalyan-city.blogspot.com/2011/02/what-is-cheque-definition-kinds-and.html

    Bragg, S. (2011). accounting tools. Retrieved from www.accountingtools.com: http://www.accountingtools.com/questions-and-answers/what-is-a-bill-of-exchange.html

Binding sources of law 

1) Legislation

Legislation is that sources of law which consists in the declaration of legal rules by a competent authority. Legislation is the law made by the sovereign or subordinate legislature. In this sense, legislation signifies the written statute law and rules. Legislation means the process of making law by the legislature in this sense, all functions of parliament will amount to legislation.

2) Precedent

Precedent is a statement of law found in a judicial decision of superior courts which is taken and followed by the same court and also by subordinate courts as a rule while deciding the later cases of similar facts. The decision of the Supreme Court must be followed by the inferior courts and all government bodies. Precedent is a law itself.

3) Customs or Usages

A custom or usage to be a valid and operative as a source of law, it must conform to certain requirements of the law. Following are the essentials to a valid custom.

  • Immemorial antiquity
  • Certainty
  • Consistency
  • Reasonability

 4) Coventions or Agreements

When two or more parties agree to do or not to do a certain thing in a particular way, it becomes law for that matter. Such agreement which is not opposed to the law is treated as law for them, and they are bound to perform their duties, e.g. contracts. Similarly, when two or more nations are agreed on a certain area of conduct, it becomes convention

 5) Persuasive sources of law

Other sources of law are:

  • A decision of foreign courts 
  • The principles of foreign law 
  • An opinion of experts / Jurist
  • Textbooks, Journal, Periodicals
  • Rules of morality and religious books
.

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