Sources of Law

According to Austin, Law is the command of sovereign that is backed by sanction.

Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions (punishment).

According to Austin Law has three main features:

1.It is a command.

2.It is given by a sovereign authority.

3.It has a sanction behind it.

Command is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties- the commander (political superior) and the commanded (political inferior). Sanction is the evil consequence that follows on the violation of a command.

In Austin’s theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws.

According to Austin the sovereign does not have to obey anyone but the modern states have their powers limited by national and international laws and norms.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 1(a) (Syllabus 2017).

According to Austin, law is the command of sovereign that is backed by sanction.

Austin has propagated that law is a command which imposes a duty and the failure to fulfill the duty is met with sanctions (punishment). Thus, law has three main features:

First is the Command; second, that it is given by a sovereign authority and third, failure to follow the law is met with punishment. Command is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. In Austin's theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to Austin, the sovereign is the source of all laws. Sanction should not also be confused with a reward that might be on offer if a given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 6(d) (Syllabus 2017).

John Austin, a noted English legal theorist is known for the Command Theory of law.

Austin differentiated between 'Laws properly so called' and 'laws improperly so called' and said that laws properly so called are general commands but not all of it is given by men for men. A specie 'Laws properly so called' are given by political superiors to political inferiors.

According to John Austin, “Law is the aggregate of rules set by man as politically superior, or sovereign, to men as political subject.” In other words, law is the “command of the sovereign”. It obliges a certain course of conduct or imposes a duty and is backed by a sanction (punishment). Thus, law has three main features:

i.It is a command.

ii.It is given by a sovereign authority.

iii.It has a sanction behind it.

The conceptions of command and sovereign are explained hereunder:

1.Command It is an expression of wish or desire of an intelligent person, directing another person to do or to forbear from doing some act, and the violation of this wish will be followed by evil consequences on the person so directed. Command requires the presence of two parties- the commander (political superior) and the commanded (political inferior).

2.Sovereign In Austin's theory, sovereign is politically superior. He has defined sovereign as an authority that receives habitual obedience from the people but itself does not obey some other authority habitually. According to him, the sovereign is the source of all laws.

3.Sanction It is the evil consequence that follows on the violation of a command. To identify a law, the magnitude of the sanction is not relevant but the absence of sanction disentitles an expression of the sovereign from being a law in Austinian sense. Sanction should not also be confused with a reward that might be on offer if a given conduct is followed or refrained from. Reward confers a positive right whereas a sanction is a negative consequence.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 1(c) (Syllabus 2017).

Bentham identified that every law may be considered in eight different respects. They are:

1.Source: The source of a law is the will of the sovereign, who may conceive laws which he personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws to be issued in future by subordinate authorities. Sovereign according to Bentham is any person or assemblage of person to who’s will a whole political community is supposed to be in a disposition to pay obedience, and then in preference to the will of any other person.

2.Subjects: These may be persons or things. Each of these may be active or passive subjects, i.e., the agent with which an act commences or terminates.

3.Objects: The goals of a given law are its objects.

4.Extent: Direct extent means that a law covers a portion of land on which acts have their termination; indirect extent refers to the relation of an actor to a thing.

5.Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the sovereign will towards an act-situation and the latter concerns the force of a law.

The four aspects of the sovereign will are - command, prohibition, non-prohibition and non-command and the whole range of laws are covered under it. These four aspects are related to each other by opposition and concomitancy.

6.Force: The motivation to obey a law is generated by the force behind the law.

7.Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the judges cure the evil (compensation), stop the evil or prevent future evil.

8.Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises the problem of discovering the will from the expression.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 1(a) (Syllabus 2017).

Jeremy Bentham was of the initial contributors on the function that laws should perform in a society. He claimed that nature has placed man under the command of two sovereigns- pain and pleasure. ‘Pleasure’ in Bentham’s theory has a somewhat large signification, including altruistic and obligatory conduct, the ‘principle of benevolence’; while his idea of ‘interest’ was anything promoting pleasure. The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. The justification for having laws is that they are an important means of ensuring happiness of the members of community generally.

Hence, the sovereign power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

Bentham said that every law may be considered in eight different respects. These are as under:

1.Source: The source of a law is the will of the sovereign, who may conceive laws which he personally issues, or adopt laws previously issued by sovereigns or subordinate authorities, or he may adopt laws to be issued in the future by subordinate authorities. Sovereign according to Bentham is any person or assemblage of person to whose will a whole political community is supposed to be in a disposition to pay obedience, and then in preference to the will of any other person.

2.Subjects: These may be persons or things. Each of these may be active or passive subjects, i.e., the agent with which an act commences or terminates.

3.Objects: The goals of a given law are its objects.

4.Extent: Direct extent means that law covers a portion of land on which acts have their termination; indirect extent refers to the relation of an actor to a thing.

5.Aspects: Every law has ‘directive’ and a ‘sanctional’ part. The former concerns the aspects of the sovereign will towards an act-situation and the latter concerns the force of a law.

The four aspects of the sovereign will are command, prohibition, non-prohibition and non-command and the whole range of laws are covered under it. These four aspects are related to each other by opposition and concomitancy.

6.Force: The motivation to obey a law is generated by the force behind the law.

7.Remedial appendage: These are a set of subsidiary laws addressed to the judges through which the judges cure the evil (compensation), stop the evil, or prevent future evil.

8.Expression: A law, in the ultimate, is an expression of a sovereign’s will. The connection with will raises the problem of discovering the will from the expression.

Having listed the eight different respects through which a law can be considered, Bentham went on to analyse the ‘completeness’ of law in jurisprudential sense. He said that a complete law would have the features of integrality as well as unity. Integrality means that a law should be complete in expression, connection and design. A law is complete in expression when the actual will of the legislation has been completely expressed. A law is complete when various parts of it dealing with various aspects are well co-ordinated. If a law does not cover a specific situation that it might have wanted to cover while being enacted, it is incomplete in design. According to Bentham the unity of a law would depend upon the unity of the species of the act which is the object of the law.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 4A(i) (Syllabus 2022).

According to Bentham ‘a law’ may be defined as an assemblage of signs, declarative of volition, conceived or adopted by a sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or a class of persons, who in the case in question are or are supposed to be subject to his power. Bentham claimed that nature has placed man under the command of two sovereigns - pain and pleasure. ‘Pleasure’ in Bentham’s theory has a somewhat large signification, including altruistic and obligatory conduct, the ‘principle of benevolence’; while his idea of ‘interest’ was anything promoting pleasure. The function of laws should be to bring about the maximum happiness of each individual for the happiness of each will result in the happiness of all. The justification for having laws is that they are an important means of ensuring happiness of the members of community generally.

Hence, the sovereign power of making laws should be wielded, not to guarantee the selfish desires of individuals, but consciously to secure the common good.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 1(a) (Syllabus 2017).

A custom will be valid as a law and will have a binding force only if it fulfills the following essential conditions, namely:

1.Immemorial (Antiquity) : A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, "A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is no good custom”. All that is required to be proved is that the alleged custom is ancient.

2.Certainty : The custom must be certain and definite, and must not be vague and ambiguous.

3.Reasonableness : A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

4.Compulsory Observance : A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

5.Conformity with Law and Public Morality : A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

6.Unanimity of Opinion : The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

7.Peaceable Enjoyment : The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

8.Consistency : There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 5(b) (Syllabus 2017).

Requisites of a Valid Custom A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions:

(i)Immemorial (Antiquity) : A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, "A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if any one can show the beginning of it, it is no good custom". English Law places a limit to legal memory to reach back to the year of accession of Richard 1 in 1189 as enough to constitute the antiquity of a custom. In India, the English Law regarding legal memory is not applied. All that is required to be proved is that the alleged custom is ancient.

(ii)Certainty : The custom must be certain and definite, and must not be vague and ambiguous.

(iii)Reasonableness : A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

(iv)Compulsory Observance : A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

(v)Conformity with Law and Public Morality : A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

(vi)Unanimity of Opinion : The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

(vii)Peaceable Enjoyment : The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

(viii)Consistency : There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 4(b) (Syllabus 2017).

Declaratory Precedents According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of advanced countries, declaratory precedents are more numerous. A declaratory precedent is as good a source of law as an original precedent.

Persuasive Precedents A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law in India, the decisions of one High Court are only persuasive precedents in the other High Courts.

The rulings of the English and American Courts are persuasive precedents only.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 3(a) (Syllabus 2017).

Rule of Law was developed by British Jurist A.V. Dicey. He derived this term from French Principle ‘La principle de legalite’ which means the principle of legality. It states that the government should be governed by Rule of Law instead of Rule of Individual. Any dictator, monarch or one particular person should not govern the functioning of any nation. Each country should follow legality of law.

Dicey was highly influenced by the French concept of administrative law’ (droit administratif) or the ‘administrative tribunals’ (tribunauxadministratifs). According to this, a citizen’s lawsuit against a public servant for a wrongdoing done in that capacity will be handled by a special court rather than a regular court of law. Droit administratif contains a regulation that was created by the judges of the administrative court rather than laws and rules created by the French parliament.

Three major principles given by Dicey in his book “Rule of Law” are –

1.Supremacy of law: It means that ordinary or regular laws shall remain supreme. Supremacy here means absolute and pre-dominance of regular laws as against arbitrary or wide discretionary powers.

2.Equality before the law: According to Dicey, all classes must be equally subject to the ordinary law of the land as administered by the ordinary law courts. He states that there should be equality between people. According to Dicey, all classes must be equally subject to the ordinary law of the land as administered by the ordinary law courts. It provides that all are equal before law and everyone will be subjected to the same law.

3.The predominance of a legal spirit: Legal Spirit refers to the judicial precedents upon any dispute raised by any individual. The judgment given in any case will be the legal spirit of that particular case. It basically refers to the law as set by the precedents that have evolved over time.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 6A(iii) (Syllabus 2017).

The doctrine of stare decisis means adherence to the past decision and do not unsettle things which are established. It is a useful doctrine intended to bring about certainty and uniformity in the law. Under the stare decisis doctrine, a principle of law which has become settled by a series of decisions generally is binding on the courts and should be followed in similar cases. In simple words, the principle means that like cases should be decided alike. This doctrine is based on public policy. Although doctrine should be strictly adhered to by the Courts, it is not universally applicable. The doctrine should not be regarded as a rigid and inevitable doctrine which must be applied at the cost of justice.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2019, Q. 1(a) (Syllabus 2017).

The essentials of customs to be lawfully valid and binding are:

(i)Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

(ii)Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

(iii)Reasonableness: A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

(iv)Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

(v)Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

(vi)Unanimity of Opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

(vii)Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

(viii)Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 6A(iii) (Syllabus 2022).

A custom will be valid at law and will have a binding force only if it fulfils the following essential conditions:

(i)Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient.

(ii)Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

(iii)Reasonableness: A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

(iv)Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

(v)Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

(vi)Unanimity of Opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

(vii)Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

(viii)Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

In the given situation, although the custom is ancient and regularly observed, it cannot be followed and recognised as a valid source of law now, as a statute prohibits child marriages and prescribes punishment for those involved. Thus, a custom is valid in law only when it is not in conflict with a statute.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 5(b) (Syllabus 2022).

The essential requisites of a valid custom to be legal and binding are:

(a)Immemorial (Antiquity): A custom to be valid must be proved to be immemorial; it must be ancient. According to Blackstone, "A custom, in order that it may be legal and binding must have been used so long that the memory of man runs not to the contrary, so that, if anyone can show the beginning of it, it is no good custom". English Law places a limit to legal memory to reach back to the year of accession of Richard I in 1189 as enough to constitute the antiquity of a custom. In India, the English Law regarding legal memory is not applied. All that is required to be proved is that the alleged custom is ancient.

(b)Certainty: The custom must be certain and definite, and must not be vague and ambiguous.

(c)Reasonableness: A custom must be reasonable. It must be useful and convenient to the society. A custom is unreasonable if it is opposed to the principles of justice, equity and good conscience.

(d)Compulsory Observance: A custom to be valid must have been continuously observed without any interruption from times immemorial and it must have been regarded by those affected by it as an obligatory or binding rule of conduct.

(e)Conformity with Law and Public Morality: A custom must not be opposed to morality or public policy nor must it conflict with statute law. If a custom is expressly forbidden by legislation and abrogated by a statute, it is inapplicable.

(f)Unanimity of Opinion: The custom must be general or universal. If practice is left to individual choice, it cannot be termed as custom.

(g)Peaceable Enjoyment: The custom must have been enjoyed peaceably without any dispute in a law court or otherwise.

(h)Consistency: There must be consistency among the customs. Custom must not come into conflict with the other established customs.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 6A(iii) (Syllabus 2017).

‘Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries’. The term “precedent” means some set pattern guiding the future conduct. In the judicial field, it means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents.

Precedents may be classified as:

(i)Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of an original precedent, it is law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great. They alone develop the law of the country. They serve as good evidence of law for the future. A declaratory precedent is as good a source of law as an original precedent. The legal authority of both is exactly the same.

(ii)Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts.

The rulings of the English and American Courts are persuasive precedents only. Obiter dicta also have only persuasive value.

(iii)Absolutely Authoritative Precedents: An authoritative precedent is one which judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal source of law.

(iv)Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2026, Q. 4A(ii) (Syllabus 2022).

Judicial Precedent means the guidance or authority of past decisions of the courts for future cases. Only such decisions which lay down some new rule or principle are called judicial precedents.

(i)In the given situation, it is 'Original precedent' because 'Vishaka guidelines' created and applied a new rule of law regarding prevention of sexual harassment at workplace. It was law for future because its guidelines were applied in future similar cases.

(ii)In the given situation, it is Persuasive Precedent. A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. For example, in certain circumstances the decision of one High Court may not binding on other High Court but the decisions can give a principle which may be helpful for the other High Court. So these types of decisions will have persuasive value.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2023, Q. 2(a) (Syllabus 2022).

The Charters of the several High Courts established by the British Government directed that when the law was silent on a matter, they should decide the cases in accordance with justice, equity and good conscience. Justice, equity and good conscience have been generally interpreted to mean rules of English law on an analogous matter as modified to suit the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so the decision would be repugnant to, or inconsistent with, any doctrine or theory of Hindu Law.

In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as "justice, equity and good conscience", which may mean the rules of English Law in so far as they are applicable to Indian society and circumstances.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2022, Q. 1(a) (Syllabus 2017).

The concept of “justice, equity and good conscience” was introduced by Impey’s Regulations of 1781. In personal law disputes, the courts are required to apply the personal law of the defendant if the point at issue is not covered by any statute or custom. In the absence of any rule of a statutory law or custom or personal law, the Indian courts apply to the decision of a case what is known as “justice, equity and good conscience”, which may mean the rules of English Law in so far as they are applicable to Indian society and circumstances.

The Ancient Hindu Law had its own versions of the doctrine of justice, equity and good conscience. In its modern version, justice, equity and good conscience as a source of law, owes its origin to the beginning of the British administration of justice in India.

The Charters of the several High Courts established by the British Government directed that when the law was silent on a matter, they should decide the cases in accordance with justice, equity and good conscience. Justice, equity and good conscience have been generally interpreted to mean rules of English law on an analogous matter as modified to suit the Indian conditions and circumstances.

The Supreme Court has stated that it is now well established that in the absence of any rule of Hindu Law, the courts have authority to decide cases on the principles of justice, equity and good conscience unless in doing so the decision would be repugnant to, or inconsistent with, any doctrine or theory of Hindu Law.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2020, Q. 1(a) (Syllabus 2017).

In India a statute or law is valid because it derives its legal authority from being duly passed by the Parliament and receiving the assent of the President, the Parliament, and the President, derive their authority from a norm i.e., the Constitution. As to the question from where the Constitution derives its validity, there is no answer and, therefore, it is the Grundnorm, according to Kelsen’s conception of pure theory of law. Grundnorms are generally followed by the Superior Norms. Superior norms are laws that govern the subordinate laws. They are inferior to Grundnorm but superior to subordinate laws. Whereas Subordinate norms are derived or made to assist the superior norm. These norms derive their justification from superior norms.

Kelsen’s pure theory of law is based on a pyramidical structure of hierarchy of norms which derive their validity from the basic norm.

Kelsen described the law as a “normative science’ as distinguished from natural sciences which are based on cause and effect, such as the law of gravitation. The laws of natural science are capable of being accurately described, determined, and discovered whereas the science of law is knowledge of what law ought to be. Like Austin, Kelsen also considered sanction as an essential element of law but he preferred to call it ‘norm’. According to Kelsen, ‘law is a primary norm which stipulates sanction’.

According to Kelsen, ‘norm (sanction) rules forbidding or prescribing a certain behaviour’. He saw legal order as the hierarchy of norms having sanctions, and jurisprudence was the study of these norms which comprised legal order. Kelsen distinguished moral norms from legal norms and said that though moral norms are ‘ought’ prepositions, a violation of it does not have any penal fallout. The ‘ought’ in the legal norm refers to the sanction to be applied for violation of law.

According to Kelsen, we attach legal-normative meaning to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm.

This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelsen as ‘Grundnorm’.

Grundnorm or basic norm determines the content and gives validity to other norms derived from it.

Under Kelsen’s pure theory, the grundnorm does not derive its validity from any other norm and its validity must be presupposed. In his view, the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 4A(ii) (Syllabus 2022).

Hans Kelson is known for his 'Pure Theory of Law'. Kelson believed that the contemporary study and theories of law were impure as they were drew upon from various other fields like religion and morality to explain legal concepts. Kelson, like Austin was a positivist, in that he focused his attention on what the law was and divested moral, ideal or ethical elements from law. He discarded the, notion of justice as an essential element of law because many laws, though not just, may still continue as law.

Kelson described law as a "normative science' as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the science of law is knowledge of what law ought to be. Kelson considered sanction as an essential element of law but he preferred to call it 'norm'. According to Kelson, 'law is a primary norm which stipulates sanction'.

According to Kelson, 'norm (sanction) is rules forbidding or prescribing certain behaviour'. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order. Kelson distinguished moral norm with legal norm and said that though moral norms are 'ought prepositions, a violation of it does not have any penal fallout. The 'ought’ in the legal norm refers to the sanction to be applied for violation of law.

According to Kelson, legal-normative meaning is assigned to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelson as 'Grundnorm'. Thus, Kelson's pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm. Grundnorm or basic norm determines the content and gives validity to other norms derived from it. In his view the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2021, Q. 1(b) (Syllabus 2017).

Kelsen described law as a “normative science’ as distinguished from natural sciences which are based on cause and effect, such as law of gravitation. The laws of natural science are capable of being accurately described, determined and discovered whereas the science of law is knowledge of what law ought to be.

According to Kelsen, ‘law is a primary norm which stipulates sanction’.

According to Kelsen, ‘norm (sanction) is rules forbidding or prescribing a certain behaviour’. He saw legal order as the hierarchy of norms having sanction, and jurisprudence was the study of these norms which comprised legal order. Kelsen distinguished moral norm with legal norm and said that though moral norms are ‘ought’ prepositions, a violation of it does not have any penal fallout. The ‘ought’ in the legal norm refers to the sanction to be applied for violation of law.

According to Kelsen, we attach legal-normative meaning to certain actions and not to others depending on whether that event is accorded any legal-normative by any other legal norm. This second norm gains its validity from some other norm that is placed above it. The successive authorizations come to an end at the highest possible norm which was termed by Kelsen as ‘Grundnorm’. Thus, Kelsen’s pure theory of law is based on pyramidical structure of hierarchy of norms which derive their validity from the basic norm.

Grundnorm or basic norm determines the content and gives validity to other norms derived from it. Under Kelsen’s pure theory, the Grundnorm does not derive its validity from any other norm and its validity must be presupposed. In his view the basic norm is the result of social, economic, political and other conditions and it is supposed to be valid by itself.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 6A(iv) (Syllabus 2017).

Judicial precedents are an important source of law. They have enjoyed high authority at all times and in all countries.

Precedents may be classified as:

(a)Declaratory and Original Precedents: According to Salmond, a declaratory precedent is one which is merely the application of an already existing rule of law. An original precedent is one which creates and applies a new rule of law. In the case of a declaratory precedent, the rule is applied because it is already a law. In the case of an original precedent, it is law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more numerous. The number of original precedents is small but their importance is very great. They alone develop the law of the country. They serve as good evidence of law for the future. A declaratory precedent is as good a source of law as an original precedent. The legal authority of both is exactly the same.

(b)Persuasive Precedents: A persuasive precedent is one which the judges are not obliged to follow but which they will take into consideration and to which they will attach great weight as it seems to them to deserve. A persuasive precedent, therefore, is not a legal source of law; but is regarded as a historical source of law. Thus, in India, the decisions of one High Court are only persuasive precedents in the other High Courts. The rulings of the English and American Courts are persuasive precedents only. Obiter dicta also have only persuasive value.

(c)Absolutely Authoritative Precedents: An authoritative precedent is one which the judges must follow whether they approve of it or not. Its binding force is absolute and the judge’s discretion is altogether excluded as he must follow it. Such a decision has a legal claim to implicit obedience, even if the judge considers it wrong. Unlike a persuasive precedent which is merely historical, an authoritative precedent is a legal source of law.

Every court in India is absolutely bound by the decisions of courts superior to itself. The subordinate courts are bound to follow the decisions of the High Court to which they are subordinate. A single judge of a High Court is bound by the decision of a bench of two or more judges. All courts are absolutely bound by decisions of the Supreme Court.

(d)Conditionally Authoritative Precedents: A conditionally authoritative precedent is one which, though ordinarily binding on the court before which it is cited, is liable to be disregarded in certain circumstances. The court is entitled to disregard a decision if it is a wrong one, i.e., contrary to law and reason.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 6A(i) (Syllabus 2022).

Natural School Natural law says that certain rights are inherent by virtue of human nature and can be understood universally through human reason.

Under this school fall most of the ancient definitions given by Roman and other ancient Jurists.

Ulpine defined Law as "the art or science of what is equitable and good.”

Cicero said that Law is "the highest reason implanted in nature."

Justinian's Digest defines Law as "the standard of what is just and unjust."

In all these definitions, propounded by Romans, “justice” is the main and guiding element of law.

Ancient Hindu view was that 'law' is the command of God and not of any political sovereign. Everybody including the ruler, is bound to obey it. Thus, 'law' is a part of "Dharma". The idea of "justice" is always present in Hindu concept of law.

Salmond, the prominent modern natural law thinker, defines law as "the body of principles recognised and applied by the State in the administration of justice."

In other words, the law consists of rules recognised and acted upon by the courts of Justice. It may be noted that there are two main factors of the definition. First, that to understand law, one should know its purpose: Second, in order to ascertain the true nature of law, one should go to the courts and not to the legislature.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2021, Q. 1(c) (Syllabus 2017).

The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi.

Where an issue requires to be answered on principles, the principles which are deduced by way of abstraction of the material facts of the case eliminating the immaterial elements is known as ratio decidendi and such principle is not only applicable to that case but to other cases also which are of similar nature.

Obiter Dicta The literal meaning of Obiter Dicta Latin expression is “said by the way”. The expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by themselves, were not strictly necessary for the decision of the particular issue raised. These statements thus go beyond the requirement of a particular case and have the force of persuasive precedents only. Judges are not bound to follow them although they can take advantage of them.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2022, Q. 2(c) (Syllabus 2017).

Distinguish between Ratio Decidendi & Obiter Dicta

Rules Governing binding force of judicial precedents:

 The decisions of High Court are binding on all the subordinate courts and tribunals within its jurisdiction. The decisions of one High Court have only a persuasive value in a court which is within the jurisdiction of another High Court. But if such decision is in conflict with any decision of the High Court within whose jurisdiction that court is situated, it has no value and the decision of that High Court is binding on the court. In case of any conflict between the two decisions of co-equal Benches, generally the later decision is to be followed.

 In a High Court, a single judge constitutes the smallest Bench. A Bench of two judges is known as Division Bench. Three or more judges constitute a Full Bench. A decision of such a Bench is binding on a Smaller Bench. One Bench of the same High Court cannot take a view contrary to the decision already given by another co- ordinate Bench of that High Court. Decision of a Division Bench is binding on a single judge of the same High Court. Thus, a decision by a Bench of the High Court should be followed by other Benches unless they have reason to differ from it, in which case the proper course is to refer the question for decision by a Full Bench.

 The High Courts are the Courts of co-ordinate jurisdiction. Therefore, the decision of one High Court is not binding on the other High Courts and have persuasive value only.

 The Supreme Court is the highest court and its decisions are binding on all courts and other judicial tribunals of the country. Article 141 of the Constitution makes it clear that the law declared by the Supreme Court shall be binding on all courts within the territory of India.

However, it does not mean that every statement in a judgement of the Supreme Court has the binding effect. Only the statement of ratio of the judgement is having the binding force.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2023, Q. 2(a) (Syllabus 2017).

The underlying principle of a judicial decision, which is only authoritative, is termed as ratio decidendi. The proposition of law which is necessary for the decision or could be extracted from the decision constitutes the ratio. The concrete decision is binding between the parties to it. The abstract ratio decidendi alone has the force of law as regards the world at large. In other words, the authority of a decision as a precedent lies in its ratio decidendi.

The literal meaning of Obitor Dicta is “said by the way”. The expression is used especially to denote those judicial utterances in the course of delivering a judgement which taken by themselves, were not strictly necessary for the decision of the particular issue raised. These statements thus go beyond the requirement of a particular case and have the force of persuasive precedents only.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2018, Q. 2(a) (Syllabus 2017).

According to Roscoe Pound social interests are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society. Social interests include-

(i)Social interest in the general security: This includes general safety, peace and order, general health, security of acquisition and transaction.

(ii)Social interest in the security of social institutions such as domestic, religious, political and economic institutions.

(iii)Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.

(iv)Social interest in the conservation of social resources like the natural and human resource.

This social interest clashes to some extent with the individual interest in dealing with one’s own property as on pleases.

(v)Social interest in general progress. It has three aspects- economic, political and cultural.

(vi)Social interest in individual life. It involves self-assertion, opportunity and conditions of life.

Society is interested in individual life because individuals are its building blocks.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2024, Q. 6A(iv) (Syllabus 2017).

Roscoe Pound a distinguished American legal scholar drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of maximum of wants was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests. Roscoe Pound defined interests as claims or wants or desires which men assert de facto, and about which law must do something, if organised societies are to endure. For any legal order to be successful in structuring an efficient society, there has to be a recognition of certain interests- individual, public and social; a definition of the limits within which such interest will be legally recognized and given effect to and securing of those interests within the limits as defined.

According to Roscoe Pound, for determining the scope and the subject matter of the legal system, following five things are required to be done:

1.Preparation of an inventory of interests and their classification.

2.Selection of the interests which should be legally recognized.

3.Demarcation of the limits of securing the interest so selected.

4.Consideration of the means whereby laws might secure the interests when these have been acknowledged and delimited, and

5.Evolution of the principles of valuation of interests.

Roscoe Pound’s classification of interests are as follows:

1.Individual interest : These are claims or demands determined from the standpoint of individual’s life and concern. They are Interest of personality; Interest in domestic relations and Interest of substance.

2.Public interest : These interests are asserted by individual from the standpoint of political life. They are Interests of the state as a juristic person and Interests of the state as guardian of social interest.

3.Social interests : These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2019, Q. 1(a) (Syllabus 2017).

Roscoe Pound drew a similarity between the task of a lawyer and an engineer and gave his theory of social engineering. The goal of this theory was to build such a structure of society where the satisfaction of wants of maximum was achieved with the minimum of friction and waste. Such a society according to Roscoe Pound would be an ‘efficient’ society. Realisation of such a social structure would require balancing of competing interests.

Roscoe Pound’s classification of interests are as follows:

1.Individual interest: These are claims or demands determined from the standpoint of individual’s life and concern. They are-a. Interest of personality: This includes physical integrity, freedom of will, honour and

reputation, privacy and freedom of conscience.

b.Interest in domestic relations: This includes relationships of parents, children, husbands and wives.

c.Interest of substance: This includes interests of property, freedom of association, freedom of industry and contract, continuity of employment, inheritance and testamentary succession.

2.Public interest: These interests are asserted by individuals from the standpoint of political life.

They are:

a.Interests of the state as a juristic person: It includes integrity, freedom of action and honour of the state’s personality, claims of the politically organized society as a corporation to property acquired and held for corporate purposes.

b.Interests of the state as guardian of social interest.

3.Social interests: These are claims or demands thought of in terms of social life and generalized as claims of the social group. It is from the point of view of protecting the general interest of all members of the society. Social interests include-a. Social interest in the general security: This includes general safety, peace and order,

general health, security of acquisition and transaction.

b.Social interest in the security of social institutions such as domestic, religious, political and economic institutions.

c.Social interest in general morals like laws dealing with prostitution, gambling, bigamy, drunkenness.

d.Social interest in the conservation of social resources like the natural and human resource. This social interest clashes to some extent with the individual interest in dealing with one’s own property as on pleases.

e.Social interest in general progress. It has three aspects- economic, political and cultural.

f.Social interest in individual life. It involves self-assertion, opportunity and conditions of life. Society is interested in individual life because individuals are its building blocks.

Having given various interest recognized by law, Roscoe Pound applied himself to figure out to balance competing interests. He said that interests should be weighed on the same plane.

According to him one cannot balance an individual interest against a social interest, since that very way of stating them may reflect a decision already made. Thus, all the interests should be transferred to the same place, most preferably to the social plane, which is the most general, for any meaningful comparison.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, June 2025, Q. 6A(i) (Syllabus 2022).

According to Salmond, law is the body of principles which are recognized and applied by the state in the administration of justice. His other definition said that law consists of a set of rules recognized and acted on in courts of justice. ‘Law’ in this definition is used in its abstract sense. The constituent elements of which the law is made up are not laws but rules of law or legal principles.

Since law was defined by a reference to the administration of justice, it needs to be understood as well. Salmond says that human experience has made it clear that some form of compulsion is required to maintain justice. It is in the nature of things to have conflict, partly real, partly apparent, between the interests of man and man, and between those of individuals and those of society at large; and men cannot be left to do what they believe is right in their own eyes. Therefore, if a just society is to be maintained, it is necessary to add compulsion so as to complement to walk on the desired path. Hence, there exists various regulative or coercive systems, the purpose of which is the upholding and enforcement of right and justice by some instrument of external constraint. One of the most important of such systems is the administration of justice by the state. The administration of justice may therefore be defined as the maintenance of right within a political community by means of physical force of the state. Another is the control exercised over men by the opinion of the society in which they live. Censure, ridicule, contempt are the sanctions by which society (as opposed to the state) enforces the rules of morality.

Salmond argued that the administration of justice was the primary task of a state and the laws were made to achieve that objective. Administration of justice was thus antecedent to the laws. Laws thus are secondary, accidental, unessential. Law consists of the pre-established and authoritative rules which judges apply in the administration of justice, to the exclusion of their own free will and discretion. Salmond further said that the administration of justice is perfectly possible without laws though such a system is not desirable. A court with an unfettered discretion in the absence of laws is capable of delivering justice if guided by equity and good conscience.

Salmond says that development and maturity of a legal system consists in the progressive substitution of rigid pre-established principles for individual judgment, and to a very large extent these principles grow up spontaneously within the courts themselves. That great aggregate of rules which constitutes a developed legal system, is not a condition precedent of the administration of justice but a product of fit. Gradually from various sources- precedent, custom, statute—there is a collected body of fixed principles which the courts apply to the exclusion of their private judgment.

Justice becomes increasingly justice according to law, and courts of justice become increasingly courts of law.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2024, Q. 1(a) (Syllabus 2017).

The main body of rules and principles of Indian law is an adaptation of English law. Following are the main sources of English law:

The chief sources of English law are:

(i)Common Law: The common law, in this context is the name given to those principles of law evolved by the judges in making decisions on cases that are brought before them. These principles have been built up over many years so as to form a complete statement of the law in particular areas. Thus, common law denotes that body of legal rules, the primary sources of which were the general immemorial customs, judicial decisions and text books on Jurisprudence. Common law is unwritten law of England which is common to the whole of the realm.

(ii)Law Merchant: The law merchant is the most important source of the mercantile law. Law merchant means those customs and usages which are binding on traders in their dealings with each other. But before a custom can have a binding force of law, it must be shown that such a custom is ancient, general, as well as commands universal compliance. In all other cases, a custom has to be proved by the party claiming it.

(iii)Principle of Equity: Equity is a body of rules, the primary source of which was neither custom nor written law, but the imperative dictates of conscience and which had been set forth and developed in the Courts of Chancery. The procedure of Common Law Courts was very technical and dilatory. Action at common law could be commenced by first obtaining a writ or a process. The writs were limited in number and unless a person was able to bring his case within one of those writs, no action could lie at common law.

In some cases, there was no remedy or inadequate remedy at common law. The King was considered as the fountain head of justice; when people were dissatisfied or aggrieved with the decision of the Common Law Court, they could always file a mercy petition with the King-in-Council. The King would refer these petitions to his Chancellor. The Chancellor, who was usually a Bishop, would dispose of these petitions not according to the rigid letter of the law but according to his own dictates of common sense, natural justice and good conscience.

The law so administered by the Chancellor came to be known as ‘equity’ and such courts as ‘Equity Courts’. These ‘Equity Courts’ acted on number of maxims, meaning of few is as under:

“He who seeks equity must do equity”, “He who comes to equity must come with clean hands”.

The Equity Courts had their separate existence from the Common Law Courts in England until the passing of the Judicature Act of 1873, when the separate existence of such courts was abolished and all High Courts were empowered to grant either or both the remedies (common law as well as equity) according to the circumstances of each case.

Some of the important principles and remedies developed by Equity Courts are recognition of the right of beneficiary to trust property, remedy of specific performance of contracts, equity of redemption in case of mortgages etc.

(iv)Statute Law: Statute law is that portion of law which is derived from the legislation or enactment of Parliament or the subordinate and delegated legislative bodies. It is now a very important source of Law. A written or statute law overrides unwritten law, i.e., both common law and equity. Some of the important enactments in the domain of mercantile law are: The English Partnership Act, 1890, The English Sale of Goods Act, 1893, Bankruptcy Act, 1914, Carriers Act, 1830, The English Companies Act, 1948 etc.

Source⁠​‌​‌‌​‌​⁠: ICSI Guideline Answers, December 2025, Q. 4A(ii) (Syllabus 2022).