What do you mean by sources of law ? Describes direct and indirect sources of law.

What do you mean by sources of law ? Describes direct and indirect sources of law

What do you mean by sources of law ?

The meaning of the word source is origin. Sources of law means origin of law from which rules of human conduct come into existence. Those things which directly and indirectly play roles in the formation and development of laws are called sources of law. There are various sources of law but there are two major sources of law. They are ; 

Direct sources of law

a. Constitution 

b. Legislation

c. Precedent

d. Custom

e. Convention

Indirect sources of law

f. Professional opinion

g. Juristic writing

h. Reasons

i. Religion

j. Equity, Justice and Good consciences

What do you mean by direct  and indirect sources of law ?

Direct sources of law 

Direct sources of law is also called primary source o law. It is binding in nature. People must follow these rules otherwise violations of these laws is subjected to punishment.

a. Constitution : Constitution is the primary source of law. It is the mother of all laws of the country because other laws derived their validity and legitimacy from the constitution. According to Article 1 (1) of the constitution stated that constitution is the fundamental law of the land and any law which is inconsistent with the provision of the constitution upto the existence shall be void. It’s means no law can survive against constitution. 

b. Legislation : The term legislation is derived from Latin term “legis” which means law and ”latum” which means to make, put or set. So Legislation means making or setting of law. Legislation is a written law passed by legislature and implemented by court. E.g. Drugs Act 2035, Guthi Corporation Act 2033 etc. 

c. Precedent : Precedent is a body of principles developed by supreme court in the process of hearing and deciding a case. It is also called judge made law. Article 128 (4) of the constitution provides the power of making precedent to supreme court and the principles constituted there by must be followed by lower courts.

d. Custom : Custom is the primary source of law and it is the oldest form of making law. Law based on custom is known as customary laws. In primitive society, the lives of human beings are regulated by custom. It is unwritten law created by human beings.

e. Convention : It is primary source of law because article 278 of constitution of Nepal and section 8 of the treaty ain 2049 has declared treaty law shall be applied as national law of Nepal. Convention is an agreement between two or more than two countries. Nepal has accepted various convention like CRC, CEDAW etc and so on.

Indirect sources of law

It is also called secondary sources of law. It is not binding in nature. People are free to follow or not.

f. Professional opinions : Those people who has depth knowledge and experience in their own profession and field can develop an idea to related authority.  Legal professionals can give their valuable knowledge to solve the problems seen in the judicial administration. E.g. opinion given by laywer, judges, doctor and engineer etc.

g. Juristic writing : Those person who has depth knowledge and experience in law can write or develop legal concepts and any writing.  The genuine writings of the law experts, scholars, jurist, lawyer, judges and law teacher are examples of juristic writing.  It has no binding forces. Juristic writing are as follows; 

International law – Hugo Grotious 
Country Justice – Dalton 
The Concept of Law – H.L.A Hart etc 

h. Reasons : Reasons is also secondary sources of law. Reasons play important role in law making. E.g. It is legally prohibited that not to get married in close blood relation due to scientific reason.

i. Religion : Religion is also taken as important sources of law. Because when there was no man made law then state or king used religious laws to regulate human behaviour. E.g. Hindu holy book Geeta is the part of Hindu law in Nepal. Bible was part Christianity law in England.

j. Equity, Justice and Good consciences : Equity, Justice and Good consciences are closely related with social and natural justice.  Basically, equity, Justice and Good consciences dependent upon the discretionary power of judges which they could use in the decision of the court. 

Post a Comment