How do sources of Law adjust to changing values and needs in the society?

By Kartikay Singh

LLM in International Commercial Law from University of Aberdeen (UK),

registered as an Advocate in Bar Council of India.

Sources of Law have always been an important supplement in the society as the law is the root for a progressive society. As the time passes by there had always been some changes in the sources of law. It is the natural phenomena of the nature that everything changes according to the time and that applies to the sources of law. Although there have been certain sects given in the sources of law that is the primary source of law and the secondary source of law. These two sources of law have been the most board sources of law under which comes other sources of law for example cases laws, general customs, bills passed in the parliament and books of authority . Sources of Law has always been inclined towards the welfare of the society hence it is quite flexible when it comes to any need of change in law. Countries having a common law often rely on the books of authority unlike countries having a civil law which are more upon the parliament and that brings us to a point that sources of law differ from nation to nation.

The countries having common law has derived different sources of law unlike the countries having civil law. “The doctrine of judicial precedent in its modern form was essentially a Victorian rationalization: The common law did not develop a system of case-law by adopting explicit premises as to the authority of cases. It passed imperceptibly from a time when what was said in the course of cases was evidence of the law—of the legal custom applying in common to all parts of the realm—to a time when the law pronounced in the cases was itself the material of a substantial part of the system of law.”[1] Country like India which has a common law jurisdiction has derived the sources of law from the customs, books of law and legislation. The sources of law changes with the society, as the society advances the law is being molded according to that. There has been some major changes in the law in India like Article 370 of the Indian Constitution is removed which gave special status of the state of Jammu & Kashmir, Section 377 of Indian Penal Code was repealed which made homosexuality no more an offence in the nation. As a part of progressive society the law has to keep on updating so as to make the society a better place of live. Earlier there was no such term as Cyber law but as the technology advanced and people started relying more on computers the risk of cyber crime increased and which made the need of cyber laws so as to protect the citizens from the cyber crime. The Cyber Law bill was introduced in India during the year 2000 as Information Technology Act, 2000 which contains all the cyber crimes and even punishments related to cyber crimes. All the books of authority are being updated with contrast to the changing society. Customs plays a major role too when it comes to sources of law, the family laws are completely taken from the old customs and are still in continuance. There are certain tribal communities who have different customs and laws and the government is liberal enough to recognize those customs as laws. Therefore if any dispute arises between individuals of that particular tribe they try to resolve with their own laws and customs. Hence, common law countries are having several ideas which combine and form a law.

The countries having civil law derive their law from natural law and the laws laid by the parliament. “As has been noted (e.g., in Pattaro 1994; cf. Guastini 1998) The notion of the sources of law is, on the face of it, ambiguous because it assumes what the law is and does not specify the meaning of the term “source.” 2 My preliminary remarks accord with this conclusion. It is quite usual for continental legal doctrine to attempt to put some order into this variety of possible perspectives by distinguishing among at least three sources as follows: (1) sources for the validity of law; (2) sources of lawmaking; (3) sources for the cognition of law.[2]” Civil Law jurisdiction has been often known as Roman law as it has its roots from the Rome. Country like England and Wales has a civil law jurisdiction which states that they do not have a constitution and or any other books of authority. The sources of law laid down in England and Wales are mostly based on the natural justice system and laws passed by the Parliament. The judges in the civil law system have to act in accordance with the prescribed laws and the judgments are also delivered keeping those laws concocted. The legislation in England are classified into two categories namely Primary Legislation and the Secondary Legislation. The Primary Legislation is the act of Parliament or Statues enacted by the Parliament; on the other hand Secondary Legislation includes Statutory Instruments and is made by the people acting under the authority of Parliament. The sources of law are being changed as being a part of developing society. The amendments in the acts, judgments delivered by the courts are the changes which are being made keeping in mind about the advancement in the society.

Therefore the different legal system has different sources of law and is being updated with the changes in the society. Both the legal system has a common goal that is to sustain peace and lawful environment in the society. Law had always been a crucial part of the society and as the society advances the law has to update accordingly so as to keep the harmony in the nation. We as a part of progressive society have to ensure that we should keep our laws updated with the changes so that it could have a major impact in the nation and sustain peace and harmony. Sources of Law have been major resource to the legal system as we derive our laws from that and it helps in justifying the law. As the society advances, the sources of law advance with that and eventually the laws are being molded with the change in the society. The legal system in the society is the building block of the ideal nation and the countries with weak legal system are likely to suffer more problems than the countries having a strong and stable legal system.