What are Primary and Secondary sources of law & Binding and Persuasive Value of Law?

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Sources of Law

Law has been derived from many sources. In jurisprudence, it means the authority from which the law derives its validity. For foolproof legal research, it is extremely important to know the sources of law as it is these sources that decide the reliability of one’s work. The reliability of your work is directly proportional to the reliability of your research sources. 

For an easier understanding, let us look at an example: While building a wall, Mr. Putin uses high-quality cement whereas Mr. Trump uses cheap and low-quality cement. Three months after building, Mr. Trump’s wall collapses while Mr. Putin’s wall remains firm even after 2 years. 

In this example, cement can be compared to the source of law and the durability of the wall is the reliability or legal backing of an argument. The better or more authoritative the source, the more difficult it becomes to dismiss your argument. 

Based on their origin, sources of law have been divided into two types – Primary and Secondary. Further, these sources can also be divided on the basis of their authoritative value. We shall look at this classification in the second part of this article. First, let us understand more about primary and secondary sources:

Primary and Secondary sources of Law

1. Primary Sources

The laws which originate from a source that has the power to make laws are considered primary laws. Primary sources are usually the most authentic sources of information. For example, the Constitution of a country is considered the mother of all laws since it lays down the mechanism of governance of that country. As the Constitution gives power to the State to make more laws, it is a primary source or one of the main sources of law.

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Primary sources are broadly classified into 4 main types: customs, legislations (supreme and subordinate), precedents, constitutions.

Customs

  • Customs are the oldest source of law. They are a combination of traditions, culture, heritage, conventions, societal practices, etc.
  • The prevalence of customs has been recognized by the Indian Constitution. Article 13(3) of the Indian Constitution defines the term “law” to include legislation, enactments by Parliament or State Legislature, by-laws, ordinances, orders, and even customs. 
  • The prominence held by customs as the primary sources of laws becomes evident from the example of the United Kingdom (UK). The constitution of the UK is ‘unwritten’ and thereby customs play a vital role in the composition of the UK’s constitutional laws. 

Why are customs a source of law?

Custom can be defined as the habitual code of conduct or rule of action which the people in a society voluntarily follow in their mutual intercourse. It is a rule of action which the people observe voluntarily and uniformly for a considerable amount of time. The aspect of customs has developed from an inner sense of right or moral consciousness as to what is right and what is wrong. Therefore, customs to the society is what law is to the State, as customs regulate society and law regulates the State.

However, not all customs are a source of law. This is because of the fact that many of them were a result of society’s patriarchal construct. For example, women were denied ownership of property. As this is a discriminatory custom, Indian laws have done away with this custom. 

There also exist some conditions so as to make a custom a valid source of law. These conditions are:

  • It should be practiced from time immemorial, i.e. existing for a long time
  • It should be reasonable.
  • Useful and convenient for society.
  • It should have conformity with the statute laws.
  • It should be observed as a right.
  • Should have continuity. (cannot discontinue it in the middle and start it up as a practice again later on)
  • Inclined to avoid conflicts in society.
  • Certainty.
  • Consistency with other customs.
  • Should conform to public policy and principles of morality.

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Legislations

Primary and Secondary sources of Law

Source

“Legis”- means “law”, “latum”- means “to make”. The legislation is a declaration of legal rules framed by a competent authority. They are considered primary sources of the law because they are made by the Legislative after following a constitutional process of lawmaking.

Supreme Legislation (source: legislative authorities) is the legislation enacted by supreme authority or apex authority in the hierarchy or sovereign part that is entitled to make laws. Parliament and State Legislatures are the only bodies that can make laws under the 3 lists allowed by the Indian Constitution. They are the basic and essential legislation passed by supreme authorities and lay down a foundation, create the roots, “bones” of law. They are also known as parent/enabling statutes.  

Subordinate Legislation (source: executive authorities) are the municipal bodies, local authorities, private bodies, laws made by the Executive- also known as Delegated Legislation. These subordinate authorities add the flesh, i.e., fill in the gaps or vacuum left by the parent statute.

Precedents

The word ‘precedent’ is derived from the word “preceding”, which means before. Precedents are the previous judgments/decisions of courts. While deciding on a case, reliance on that court’s decision or a higher court’s decision on a similar type of case is called a precedent. India treats precedents as a source of law because it follows the common law system. 

Supreme and High Court cases/judgments are treated as precedents in India. Cases from outside India are considered foreign precedents and do not have authoritative value, they are merely persuasive. In the UK, the House of Lords’ decisions is treated as precedents.

Primary and Secondary sources of Law

To understand how precedents work better, we need to understand the doctrine of stare decisis and also look at the elements of a judgment.

The doctrine of Stare Decisis – “Stare Decisis”- means that long-standing judgments need not be disturbed, altered, or affected. The main purpose of this doctrine is to secure a legitimate expectation, certainty, and uniformity in the laws passed by the judicial branch of the state. It is due to this doctrine that precedents have their value secured.

Elements of a judgment – Judgements are divided into 2 parts, ratio decidendi, and obiter dicta. Ratio decidendi is the rationale, legal principle, the reasoning behind/based on which a decision is made. It is binding. Obiter dicta are the observations, a mere saying, by the way, opinions, comments, etc. which usually talk about some social message, etc. It is not binding.

Some examples of landmark precedents are:

  • Ryland v. Fletcher – introduced the concept of strict liability.
  • M.C. Mehta v. Union of India – introduced the concept of absolute liability. (unique to India to make sure exploitative for-profit companies do not escape liability on a technicality) 
  • Mohori Bibee v. Dharmadas Ghosh – voided contract with minors.
  • Donoghue v. Stevenson – introduced the concept of negligence and duty of care.

Online sources for precedents are useful in these modern times. Students can use Manupatra, SCC Online, https://indiankanoon.org/ for bare judgments. Do check out our blog on How to effectively use a research database!

Note: Indian Kanoon has been proven to not be liable, so always cite it as a last resort. There have been instances where lawyers using Indian Kanoon as a reference have been condemned by judges for doing so, as the website sometimes states incorrect citations and facts. Resorting to the official website of courts across India gives you access to orders, recent judgments, and notices. 

Further, precedents can be divided into legislative and executive. Legislative Precedents are legislations, statutes, and acts. Executive precedents are orders to the Superintendent of Police, ordinances, rules, and regulations, etc. The ministries which operate at central and state levels like the Ministry of Education, Ministry of Human Rights, etc. are a part of the executive, but not that of the legislature.

Constitution

The constitution is the foundation of primary sources of law in a given state. Constitutions not only define the scope of laws but also lay down rules for the functioning of the state and its organs such as the Legislative. 

Source

The Constitution is a document that contains the rules or regulations of a country. We follow the Indian Constitution (the longest written Constitution!) because it is binding and its basic structure can never be amended. It is also known as “grundnorm” or a supreme authority and thus considered the highest source of law in India.

2. Secondary Sources

When the interpretation of primary sources causes ambiguity or confusion, what do we do? Refer to secondary sources. Sometimes, while reading, we make little notes here and there and note down our opinions and views. That is essentially what secondary sources do. They take the same content as the primary sources but add a layer of interpretation and analysis to the same. 

Secondary sources can be broadly divided into 10 types – textbooks/commentaries, legal digests, encyclopedias, law journals, dictionaries, law reports, law commission reports, law magazines, constitutional assembly debates, articles.

Textbooks/Commentaries

Judges refer to several textbooks and commentaries in order to get an in-depth understanding of a legal topic when they adjudicate. Textbooks give elaborate information, however, it is important to select appropriate textbooks because each one contains not only information on the topic, but also opinions and viewpoints of the authors.

Some commentaries which have been used by the Indian Supreme Court are H.M. Seervai’s commentary on Constitutional Law, Mulla and Anson’s commentary on Contract Law, Paras Diwan on Family Law, etc. 

Digests

Digests are an alphabetical collection of case laws decided by a particular court and on a particular topic. They give brief facts of a particular case and the court’s decision. For example, A digest may contain all Supreme Court decisions  of2015 in alphabetical order and specifically on administrative law. These digests are published at regular intervals which may range from one to five years. This systematic arrangement of reported cases, arranged by subject, is subdivided by jurisdiction and the court. 

Its main function is to make it easier for researchers to find cases on a specific legal issue or topic. To clarify, Manupatra is not considered a digest as it is an online source. There are 2 techniques/manners for using digests to make your research easier: 

  • Topic Method – Finding all cases on a particular topic, 
  • All the cases in a particular region, court, or state. For example, All-India Review publishes its digest every 5 years, whereas the Madras Law Journal is a yearly publication.

Encyclopedias

Known as “treasure houses of knowledge”, encyclopedias are a collection of brief articles on important topics of a given field. A general example of a non-legal encyclopedia is Britannica Encyclopedia. When it comes to legal encyclopedias Halsbury’s Laws of England and Universal Publication’s Encyclopedia on Important Central Acts and Rules are famous.

Dictionaries

Dictionaries help in finding the meanings of different legal words. The definition of basic and complex terms is covered in them. The most prominent legal dictionary is Black’s Law Dictionary. It is widely used because it makes research easier. “How?” you ask? This dictionary defines a word and gives the relevant interpretations along with the judgments in which those definitions or interpretations were laid down. Other reputed but general dictionaries include dictionaries by Oxford University and Harvard University. 

Note: Black’s Law Dictionary is the best source to begin any research. You can download a soft copy of the dictionary by clicking here.

Law Journals

Law Journals are periodic reviews containing scholarly articles by judges, practitioners, academics, students, etc. They play a major role in shaping the discourse of contemporary legal developments all around the world. A Majority of law schools and private publishers have their own law journals. For example, in India we have GNLU Law Journal, NLSIU Law Journal, to name a few. Globally, Harvard Law Review, Yale Law Review, and the like are reputed. Many Supreme Courts have relied on reputed journal articles in multiple judgments. Journals can be general as well as topic-specific. For example, Nirma University’s Journal of Intellectual Property Law deals only with IP Law. 

Source

If you’re interested in getting your own research paper published in a law journal, keep checking this notification page for call for research papers

Eminent jurists have expressed views on many issues of prestigious law journals. Here’s to hoping more students try their hand at submitting research papers to journals! 

Law Reports

Law Reports contain a systematic arrangement of different case laws decided by different courts in sequential order. Depending on the number of judgments, law reports may run into several volumes. The difference between law digests and law reports is that legal digests include facts in a very brief manner, whereas reports are more elaborate. Example: AIR- All- India Review, SCC- Supreme Court Cases. “2 SCC” signifies Volume 2 of SCC.

Law Commission Reports

Law Commissions are executive bodies created or executed by government institutions. The main aim is to bring about or cater to law reforms. They are usually constituted by legal experts and headed by a Chairman. The Law Commission submits certain reports to the Supreme Court. 

An example of an issue that became and did not become a piece of legislation later enacted in Parliament because of reports submitted by the Commission would be the de-criminalization of an attempt to suicide and passive euthanasia, respectively. Law Commissions study the

lacunae/drawbacks/grey areas and submit reports to the government based on the Parliament’s orders. The Parliament or State Legislature then decides whether or not to pass the legislation. They usually are the ones to recommend progressive developments in law like the abolishing of the death penalty and the implementation of the Uniform Civil Code.

Law Magazines

They contain articles on current legal issues by the legal fraternity including even law students. Certain magazines are even available in regional languages. Examples of law magazines are Law Teller and Lawyers’ Collective.

Constituent Assembly Debates

A Constituent Assembly is formed to draft the Constitution. While drafting the Constitution of India, members debated extensively. This is why the Constituent Assembly Debates have been documented in multiple volumes. The objective of preserving the transcripts of these debates is to help us understand the history, aim, and objective behind the formulation of different articles of the Constitution. Only due to these debates, we have understood that the first letter in “article” and “section” is only to be capitalized when there is a number coming after it. Example: Article 17, Section 4.

Articles/Blogs

Blogs help us read the information on contemporary topics in a concise manner. Examples of reputed blogs are Oxford Human Rights Hub (https://ohrh.law.ox.ac.uk/blog/), Economic and Political Weekly (https://www.epw.in/), etc. Another example of a helpful blog is this – Constitutional Law – Landmark Judgments.

Further, there are multiple online platforms that provide access to reputed journals and periodicals. These are – JSTOR (https://www.jstor.org/), HeinOnline (https://home.heinonline.org/), Google Scholar (https://scholar.google.com/). Please note that platforms like JSTOR, Westlaw, HeinOnline are paid in nature and they require a subscription fee for access. A lot of law students can also get subscriptions for free via their university portal. 

Value of Sources of Law

Binding value means that sources of law are enforceable in court, whereas persuasive value means that they are less authoritative in nature.

The first rule is that secondary sources are never binding. This rule comes with no exceptions. Coming to primary sources, their binding nature depends on the jurisdiction in which the source is being cited. Primary sources are mainly where law originates from. Foreign precedents do not have authoritative, but persuasive value in Indian courts. 

For example, If a lawyer is arguing before the Indian Supreme Court and cites a case from the Supreme Court of the United States, the case will be essentially a primary source but not binding in India, as it is out of their jurisdiction. When the same US case is subject to jurisdiction in the USA, it becomes binding. 

Another example, Suppose a decision of the Karnataka High Court is being relied upon in Delhi High Court by a lawyer. Although it has persuasive value, it will only be binding in Karnataka as Delhi is outside its jurisdiction. The same thing applies to laws passed by the Karnataka Legislative Assembly. 

The hierarchy of courts plays a major role in deciding the binding nature of cases. Supreme Court cases are binding on all High Courts in India, so all of them come under the Supreme Court’s jurisdiction. Allahabad High Court cases are binding on all subordinate courts of Uttar Pradesh, but not anywhere else. 

An exception to the binding nature of primary sources is international law. It is hard to compute which box international law falls in, as the distinction between primary and secondary sources is not given officially. There have been a variety of debates and broad interpretations regarding the same. Primary sources usually have the backing of the State, whereas secondary sources don’t. Treaties, UN Resolutions don’t have the backing of a State but still are considered primary sources of law. This is because institutions like the UN function as separate bodies. 

When it comes to persuasive value, the degree of persuasion matters. The degree of persuasion can also depend on how similar the facts of the case cited are to the present case. Example: A US case may not be binding before the Indian Supreme Court, but it can be more persuasive if the facts are very similar. Similarly, articles are never binding, but hold more authority if citing an article written by an eminent or respected jurist who holds views that you as a lawyer can use to tilt the judgment in your favor. While researching for a moot court competition, you must always remember to use only authoritative sources that have binding value. If you are unable to find a binding source, a persuasive source that fits just right it will work too. 

About the Author: Anjali Baskar is from School of Law, Christ University. Her interests in law include public policy, ADR/ODR, criminal law, IPR/Entertainment law, etc.

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Lipi Garg

Lipi Garg

Lipi is the Assistant Publishing Editor of Memo Pundits. For help in publishing details of any event, please email at lipi.garg@memopundits.com

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