Module 2:

2.1 Sources of law

A. Formal and material sources of law
B. Custom, Meaning and Nature of Custom as a source of law
C. Kinds of Customs
D. Trade Usage/ Convention
E. Essential conditions of validity of Custom
2.2 Precedent-
A. Meaning and nature of Precedent as a source of law
B. Doctrine of Stare Decisis, Doctrine of Prospective Overruling and Declaratory theory
Precedents.
C. Ratio-Decidendi and Obiter Dicta
D. Circumstances which destroy the binding force of precedent
E. Merits and Demerits of Precedent
2.3 Legislation
A. Meaning, Nature and Scope of Legislation as a source of law
B. Kinds of Legislation
C. Merits and Demerits of Legislation as a source of law
D. Codification of Law
E. Statutory Interpretation
2.4 Convention as a source of law
Sources of law
A. Formal and material sources of law
B. Custom, Meaning and Nature of Custom as a source of law
C. Kinds of Customs
D. Trade Usage/ Convention
E. Essential conditions of validity of Custom

Q1. Explain the Sources of Law. Distinguish between Formal and Material Sources of Law. (Or:
Discuss Salmond’s classification of sources of law.)

Meaning of Sources of Law

The term sources of law refers to the origins from which legal rules derive their authority and
content or validity. It explains how law comes into existence and becomes binding.
According to Salmond, the "Sources of Law" are the data from which the rules of law are
derived. He categorized them into two primary types:
• Formal Sources: These are the sources from which a rule of law derives its legal force
and validity. It is the will of the State as manifested in statutes or decisions of courts. For
Salmond, the State is the only formal source. Examples:
o Legislation
o Judicial precedents
o Customs (when recognised by courts)
• Material Sources: A material source is the source that supplies the content or substance
of law. It helps shape legal rules but does not itself give them binding force until
recognized by law. These are the sources from which the matter/content of the law is
derived, but not the validity.
o Legal Sources: These are the Direct sources recognised by courts. (e.g.,
Legislation, Precedents, Custom).
o Historical Sources: Sources that influence the development of law but are not
binding. These are unauthoritative (e.g., Juristic writings, foreign judgments, or
ancient religious texts).
Conclusion
Both formal and material sources are essential. Material sources provide the raw material,
while formal sources give it legal force, ensuring the functioning of a legal system.
Q2. Define Custom. Explain its Nature as a Source of Law.
Meaning of Custom
Custom is the oldest source of law. Custom may be defined as a long-established, uniform
practice of the people which, by continuous usage, has acquired the force of law. Custom is a
rule of conduct which has been followed continuously and uniformly by a community and
has acquired the force of law. It is essentially the habit of a community crystallised into a rule
of conduct.
According to Salmond: “Custom is the embodiment of those principles which have commended
themselves to the national conscience as principles of justice and public utility.”
Nature of Custom as a Source of Law:
o It is one of the oldest sources of law-making, it existed even before organised states,
though its importance has diminished with the rise of modern legislation.
o Spontaneous Development: It develops naturally from social practices, not from
legislation.
o Based on Acceptance: It derives authority from long usage and public acceptance.
o Recognised by Courts: Customs It is unwritten (jus non scriptum) but become law only
when recognised by courts.
o Reflects Social Values: Custom mirrors the beliefs, morality, and traditions of society.
o Analytical View (Austin): Custom is only a source of law; it becomes "real law" only when
recognized by the State or Sovereign.
o Historical View (Savigny): Custom is law per se (the Volkgeist) and carries its own
justification without needing State recognition.
Custom is important because it reflects the real practices of society, helps fill gaps in written
law, and often forms the basis of early legal systems.

Q3. Explain the Kinds of Customs.

Customs are commonly classified into legal customs and conventional customs; legal customs
include general and local customs.
1. Legal Custom: A legal custom is one whose authority is absolute and which possesses
the force of law proprio vigore, i.e., by its own force. The courts take judicial notice of it
and it binds people even without pleading. Legal customs are further divided into two
types:
a. General customs are those which prevail throughout the territory of a State, such
as the Common Law in England.
b. Local customs apply only to a particular locality, sect, or family, like the
Marumakkathayam system of inheritance followed in parts of Kerala.
2. Conventional Custom: Also known as ‘usage’, a conventional custom is a practice which
is binding not because of any legal authority of its own, but because it has been expressly
 or impliedly incorporated into an agreement between parties. It is essentially a term of
contract. Therefore, it binds only the parties who have adopted it and not the public at
large. Mercantile usages and trade practices fall under this category.
The distinction is crucial: legal custom is law, while conventional custom is fact which must be
proved in court. Note: Legal customs become part of the law of the land, while Conventional
customs become the part of contract only.

Q4. Explain Trade Usage/Convention as a Source of Law.

Trade usage, also called mercantile convention, is a specific type of conventional custom that
has developed in the field of trade and commerce. It refers to practices, methods, or rules
commonly followed by persons engaged in a particular trade or business, which are
recognised as binding.
A trade usage does not have the force of law by itself. It becomes binding on parties only on
the presumption that they intended to contract with reference to such established usage of
their trade. Courts in India and England have consistently held that trade usages are admissible
to explain contracts, fill in gaps, and interpret the intention of parties where the contract is
silent. However, for a trade usage to be recognised, three conditions must be satisfied:
▪ First, it must be so well-known and established that parties can be presumed to have
knowledge of it.
▪ Second, it must be reasonable and certain.
▪ Third, it must not contradict the express terms of the contract or any statute.
Thus, while legislation and judicial precedent are the primary sources of law today, trade usages
continue to play a vital role in commercial law and are often codified later, like the Law
Merchant which was absorbed into the Indian Contract Act, 1872.
Trade usage plays a crucial role in commercial law, ensuring uniformity and predictability in
business transactions.

Q5. What are the Essential Conditions for a Valid Custom?

For a custom to be legally recognised and enforced by courts in India, it must satisfy the
following well-settled tests. If any of these essentials are missing, the courts will not uphold the
custom as law.
• Immemorial Antiquity: The custom must be ancient. Under English law, this means
dating back to 1189 AD. In India, courts require proof that the custom is long-standing
and beyond "human memory."
• Continuity: It must have been practiced continuously without interruption. If there is a
break in the practice, the custom dies.
• Peaceable Enjoyment: It must have been followed voluntarily and not through the use
of force or "vi precario" (by permission).
 • Certainty: The custom must be definite and specific. Vague practices cannot be enforced
as law.
• Reasonableness: A custom must not be unreasonable. It should be based on justice and
utility.
• Consistency and not Contrary to Law: It must be consistent with other established
customs and must not contradict the Statute Law (Acts of Parliament).
• Conformity with Public Policy: It must not be immoral or opposed to public policy (e.g.,
a custom involving "Sati" or "Devadasi" is invalid because it is immoral and illegal).

Custom is an important source of law in jurisprudence. It is a practice repeatedly followed by

a community and accepted as binding because of long usage. Customs may be legal customs or
conventional customs; legal customs include local and general customs, while conventional
customs become binding through agreement between parties. For a custom to be valid, it must
be ancient, continuous, certain, reasonable, and consistent with law and public policy. Thus,
custom plays a significant role in developing and supplementing law.
Precedent-
A. Meaning and nature of Precedent as a source of law
B. Doctrine of Stare Decisis, Doctrine of Prospective Overruling and Declaratory theory
Precedents.
C. Ratio-Decidendi and Obiter Dicta
D. Circumstances which destroy the binding force of precedent
E. Merits and Demerits of Precedent

Q1. Explain the Meaning and Nature of Precedent as a Source of Law.

A judicial precedent refers to a decision of a court which is cited as an authority for deciding
subsequent cases involving similar facts or legal issues. It is the authority of past decisions for
future cases. Only decisions that lay down a new rule or principle qualify as precedents. They
must be properly reported, citable, and generally followed.
Definition:
• In ordinary sense: A previous example or case that serves as a guide for future similar
cases.
• According to Salmond (loose sense): Precedent includes merely reported case law which
may be cited and followed by courts. In strict sense: A judicial decision that contains a
principle of law and has binding authority.
• Keeton: A judicial precedent is a judicial decision to which authority in some measure
has been attached.
• Gray: Precedent covers everything said or done which furnishes a rule for subsequent
practice.
Nature:
• Precedent is a formal and legal material source of law (Salmond).
• It is constitutive (creates new law by filling gaps) but not abrogative (cannot repeal
existing law; that is for legislature).
• In modern legal systems (especially common law influenced like India), it is secondary to
legislation but highly important for growth and certainty of law.
• In India: Supreme Court decisions are binding on all courts under Article 141 of the
Constitution (“The law declared by the Supreme Court shall be binding on all courts
within the territory of India”). High Court decisions bind lower courts within their
jurisdiction.
• Nature is dynamic: it evolves with society while maintaining stability. In reality, when
courts interpret statutes or fill gaps where law is silent, they create new legal principles
which become binding on lower courts.
Classification:
o Authoritative Precedents: These are binding on lower courts regardless of the judge’s
personal opinion. For example, decisions of the Supreme Court of India bind all Indian
courts under Article 141 of the Constitution.
o Persuasive Precedents: These are not binding but guide the judge. Examples include
decisions of foreign courts or one High Court being cited in another High Court.
Importance:
Precedent brings certainty, predictability, and uniformity; prevents arbitrary decisions. In India,
Article 141 of the Constitution gives precedent a special status. It states that “the law declared
by the Supreme Court shall be binding on all courts within the territory of India”. Thus,
precedent is not merely persuasive but is a formal source of law with binding authority.

Q2. Explain the Doctrine of Stare Decisis, Prospective Overruling, and Declaratory Theory of
Precedents.
1. Doctrine of Stare Decisis
Meaning
“Stare decisis” means to stand by decided cases (to stand by decisions) and not disturb what is
settled.
The doctrine has two parts:
▪ vertical stare decisis, where lower courts are bound by decisions of higher courts, and
▪ horizontal stare decisis, where a court generally follows its own previous decisions to
maintain consistency.
This doctrine brings certainty, consistency, stability, and equality before law. However, it is not
absolute. The Supreme Court can overrule its own earlier decisions if they are found erroneous.
Principle
▪ Courts must follow previous decisions of higher or coordinate courts on similar points
or similar cases. Binding on lower courts; Supreme Court binds itself with caution (larger
benches can overrule smaller ones).
Importance
▪ Ensures certainty, consistency, and stability in law. However, it is not absolute. The
Supreme Court can overrule its own earlier decisions if they are found erroneous.

2. Doctrine of Prospective Overruling

Ordinarily, when a court overrules a previous decision, the new law applies retrospectively,
meaning all past transactions based on the old law may become invalid.
To avoid such hardship, the Supreme Court held that it can declare that the new decision will
apply only to future cases, i.e., prospectively. This protects the rights and transactions that were
done in good faith relying on the earlier law. It does not affect operations or settled rights from
the past, preventing administrative chaos. Thus, the doctrine balances the need for legal reform
with the need for stability.
Meaning
▪ Prospective overruling means that when a court overrules an earlier decision, the new
rule applies only to future cases and does not disturb settled past decisions.
▪ It is used to correct an incorrect legal rule without creating hardship by reopening earlier
settled matters.
Indian Context
▪ This doctrine was evolved by the U.S. Supreme Court and adopted in India in Golak Nath
v. State of Punjab, 1967.
3. Declaratory Theory of Precedent
Supported by jurists like Hale and Blackstone, this theory suggests that judges do not make
law, they only discover and declare what the law already is, when deciding cases. According to
this theory, if a later decision overrules an earlier one, it does not change the law but only
corrects the earlier mistake about what the law was.
Meaning
• Judges do not make law; they merely declare what the law already is.
Criticism
• In reality, judges often create new legal principles in novel cases by filling gaps in the
statute made by legislature.
Q3. Define and Distinguish between Ratio Decidendi and Obiter Dicta. Which one has binding
force?
When a court delivers a judgment, it contains two parts: ratio decidendi and obiter dicta. Only
one of them has binding force.
1. Ratio Decidendi:
Literally meaning “the reason for the decision”, ratio decidendi is the principle of law on which
the decision of the court is based. The ratio is not the entire judgment but the rule of law which
the judge considered necessary to reach the conclusion. To find the ratio, one must separate
the material facts from immaterial ones and see what legal principle was applied to those
material facts.
Meaning
• The legal principle or rule on which a case is decided. It is the binding part of the
judgment.
• Only ratio binds lower courts and future cases with similar facts.
• Salmond: The rule of law which the court regarded as governing the case and which it
applied and acted upon.
Characteristics
• It is the binding part of a judgment and must be followed by subordinate courts under
Article 141.
• It is the essential part of the judgment.
2. Obiter Dicta (“things said by the way”)
Incidental statements, observations, or hypothetical remarks made by a judge which are not
essential to the decision and the actual issue of the case. They may be legal principles,
hypothetical examples, or general comments and these are not essential to the decision and
therefore are not binding.
Meaning
• Obiter dicta are statements or observations made by a judge that are not essential to
the decision and therefore are not binding.
Characteristics
• These are only statements or observations hence, not binding.
• They are only persuasive in nature.
Key Distinction

Basis Ratio Decidendi Obiter Dicta

Meaning Reason/Rule for the decision Things said by the way

Binding Nature Binding (authoritative precedent) Persuasive only

Scope Essential to the decision Incidental/hypothetical

Example Core legal principle applied in case Judge’s general comments on law

Authority (Salmond) Contains the law in the precedent Little legal authority

• Note: Distinguishing ratio from obiter is an art; courts look at what was necessary to
decide the case.
Q4. What are the Circumstances which Destroy the Binding Force of Precedent?
Although precedent is binding, but it may lose binding force if it is overruled, reversed,
distinguished, or if it is inconsistent with a higher court decision or statute. Overruling means a
later court rejects the legal principle laid down in an earlier decision.
1. Overruling: superior court (or larger bench) expressly overrules its own previous decision.
Overruling declares the precedent wrong and not to be followed. Once overruled, the
earlier case loses binding force.
2. Reversal: A superior court (or larger bench) can reverse the decision of a lower court in
appeal.
 3. Distinguishing: When a court finds material facts differ significantly from the previous
case, the precedent is not applicable (not destroyed but inapplicable).
4. Ignorance of Statute (Per Incuriam): If a judgment is given in ignorance of a relevant
statute or a binding precedent, it is said to be per incuriam and is not binding on future
courts.
5. Sub Silentio: When a particular point of law involved in the case is not perceived by the
court or argued by counsel, the decision is said to be passed sub silentio and is not binding.
6. Conflicting Decisions: If there are two conflicting decisions of the same court, the later
decision is generally followed, and the earlier one loses authority.
7. Changes in Law or Abrogation by Statute: If a later statute is inconsistent or contradicts
the judicial precedent, the statute prevails (legislation overrides precedent).
8. Loss of Relevance or Change in Circumstances: If the social, economic, or political
conditions have drastically changed, courts may refuse to follow an old precedent.
In India, Supreme Court can review its decisions under Art. 137 or depart when justice requires
(e.g., larger bench).

Q5. Discuss the Merits and Demerits of Precedent. Or Critically evaluate Precedent as a
source of law.
Merits (Advantages):
1. Certainty and Predictability: Ensures predictability in legal decisions, parties to the case
can foresee the likely outcome.
2. Uniformity and Equality: Ensures that similar cases are treated alike, upholding the rule
of law. (justice according to law).
3. Flexibility and Growth: Allows law to develop organically through judicial creativity to
meet new social needs without waiting for legislation. This fills gaps between legislation
and custom.
4. Convenience and Time-saving: Saves judicial time by not re-arguing settled points.
Lower courts need not decide every legal issue afresh; they can rely on settled principles.
5. Practical Wisdom and Scientific Approach: Based on real disputes and experienced
judges (better than abstract legislation sometimes). Precedent is based on actual cases,
not hypotheticals. So, it is practical and allows the law to grow step-by-step through logic
and experience.
Demerits (Disadvantages):
1. Rigidity: Once a rule is settled, it may be followed even if it is seen as incorrect or
outdated (until overruled). Stare decisis can make law inflexible and slow to adapt to
social changes. Strict adherence may cause injustice.
2. Bulk, Complex and Uncertainty in Finding Ratio: Too many reported cases make law
voluminous and extracting true ratio vs obiter is difficult, time-consuming and confusion.
 3. Possibility of Wrong Decisions or Illogical Distinctions: To avoid following a precedent,
courts sometimes distinguish cases on minor facts, leading to inconsistency and any ad
precedents may perpetuate errors (hard to overrule).
4. Uncertainty in Finding Ratio: Difficulty in extracting true ratio vs obiter leads to.
5. Judicial Legislation: Judges are not elected. Critics (e.g., Austin) say judges usurp
legislative function without democratic accountability.
6. Retrospective Effect: It makes law after the event has occurred, which can be unfair to
the parties involved. New precedents can affect past transactions unfairly (mitigated by
prospective overruling).
7. Hasty Decisions: Sometimes decisions are made based on the limited arguments of the
lawyers present, rather than broad public interest.
Conclusion: Precedent is indispensable for a living legal system but must be balanced with
legislation and judicial caution. In India, Art. 141 strengthens it while allowing evolution.
Legislation
A. Meaning, Nature and Scope of Legislation as a source of law
B. Kinds of Legislation
C. Merits and Demerits of Legislation as a source of law
D. Codification of Law
E. Statutory Interpretation

Q1. Explain the Meaning, Nature and Scope of Legislation as a Source of Law.
Meaning of Legislation
Legislation is the process by which the sovereign or competent legislative body (Parliament or
State Legislature) lays down legal rules in a formal, written, and authoritative form. It is also
called enacted law or statute law.
According to John Austin: “Legislation is the direct or deliberate making of law by a sovereign
authority.”
According to Salmond: “Legislation is that source of law which consists in the declaration of
legal rules by a competent authority.”
In wider sense: Any act that adds to or changes the law (includes judicial law-making).
In narrower/strict sense: Law-making by the legislature (enacted law/statute law).
Nature of Legislation
1. Formal and Supreme Source of Law: In modern states, legislation is the most
authoritative source of law. It gives validity and binding force to rules. It is supreme in
modern states because it can create, alter, or repeal any law (abrogative and reformative
power)
2. Deliberate and Conscious Law-Making: Legislation is consciously made and deliberate,
whereas custom grows unconsciously and precedent evolves gradually through cases.
Unlike custom, legislation is intentionally enacted.
3. Written and Formal: Laws are codified and documented. Legislation is abstract because it
lays down rules for future cases without reference to actual disputes
4. General Application: It is the primary instrument of social reform and applies uniformly
to all persons within its jurisdiction.
5. Backed by Sanction: Enforced by the State with constitutional and legal authority.
Scope of Legislation
In the modern era, legislation is the principal and most prolific source of law. Unlike custom,
which grows naturally, legislation is a conscious, deliberate, and formal act. Its scope extends
to all subjects on which the State has power to legislate.
In India, the scope is defined by the Seventh Schedule of the Constitution which divides
legislative powers between Union and States. Legislation can:
• enactment of new laws,
• abolish old customs,
• codify existing law, and
• regulate every aspect of social, economic, and political life.
With the rise of the welfare state, legislation has become an instrument of social change,
planning, and reform, making its scope far wider than custom or precedent.
Q2. Explain the kinds/ classification of Legislation.
According to Salmond, legislation is mainly classified into two types:
1. Supreme Legislation
o Enacted by the supreme or sovereign law-making body in the State.
o Cannot be repealed, annulled, or controlled by any other authority below the
supreme.
▪ Examples: Acts passed by the Indian Parliament (e.g., Constitution of India,
1950; Bharatiya Nyaya Sanhita, 2023 replacing IPC).
o It is the highest form and has overriding effect.
o In India, it is subject only to the Constitution.
2. Subordinate (or Delegated/Conditional) Legislation
o Made by authorities other than the sovereign, under powers delegated by the
supreme legislature.
o It is subordinate because it can be controlled or repealed by the parent Act.
o Kinds of Subordinate Legislation (as per Salmond and standard texts):
▪ Executive – Rules, regulations, notifications by government (e.g., rules under
Companies Act).
▪ Judicial – Rules made by courts (e.g., Supreme Court Rules).
▪ Municipal/Local – Bye-laws by local bodies (Municipal Corporations).
▪ Colonial (historical) – Laws made in colonies under imperial control.
▪ Autonomous – Laws by bodies like universities.
▪ Conditional – Legislation that comes into force on fulfilment of certain
conditions.
Subordinate (or Delegated/Conditional) Legislation needed because the legislature cannot deal
with every detail itself. Delegation makes law-making quicker and more practical.
Other Classifications:
• Direct vs Indirect: Direct = legislature itself makes it; Indirect = through delegated
authority.
 • Original vs Derivative: Original has independent force; Derivative derives from another.
Note: In India, delegated legislation is valid subject to constitutional limits (cannot violate
fundamental rights or essential legislative functions – Re Delhi Laws Act case).
Q3. Discuss the Merits and Demerits of Legislation as a Source of Law.
Legislation provides certainty, uniformity, publicity, and easy accessibility. It can also be changed
according to social needs. It is reliable because it is deliberate, written, and formally enacted
by an authorized body.
Merits (Advantages):
1. Abrogative and Reformative Power: Can abolish old laws and introduce reforms (unlike
precedent, which is only constitutive).
2. Efficiency and Division of Labour: Legislature makes law; judiciary interprets and applies
which leads to better efficiency.
3. Prospective Operation: Law is declared in advance which satisfies natural justice (no
retrospective punishment usually).
4. Certainty, Uniformity and Accessibility: Statute law is clear, brief, and easily available
(unlike scattered case law).
5. Can meet Future Needs: Can legislate for situations not yet arisen.
6. Systematic Form: Presented in standard, organised form (Acts, Sections, Chapters).
Demerits (Disadvantages):
1. Rigidity: Once enacted, difficult to change quickly; may become outdated.
2. Lack of Flexibility: Cannot adapt easily to new social conditions (precedent is more
flexible).
3. Possibility of Bad Law: If legislature is hasty or influenced, it may enact defective laws.
4. Bulk and Complexity: Too much legislation can make law voluminous.
5. May not Reflect Public Opinion Perfectly: In practice, it may be influenced by politics
rather than pure reason.
6. Interpretation Problems: Complex legal drafting can lead to "legalese" that is hard for
common people to understand. Ambiguous language leads to disputes.
Conclusion: Despite demerits, legislation is the most powerful and preferred source in modern
democratic states because of its certainty and reformative capacity. It supplements and
overrides other sources.

Q4. What is Codification of Law? Discuss its merits and demerits.

Meaning: Codification is the systematic collection and arrangement of laws (scattered statutes,
customs, precedents) into a single, coherent, written code. It is a form of legislation that
organises and consolidates law on a subject.
Kinds:
• Creative: Creating a new law where none existed.
• Consolidating Code: Combines existing statutes without much change.
• Codifying Code: Incorporates case law, customs, etc., into one comprehensive code (e.g.,
Indian Contract Act 1872).
Merits (Advantages):
1. Certainty: Law becomes definite and known (“Ignorantia juris non excusat” is
meaningful).
2. Simplicity and Accessibility: Easy to understand and refer to.
3. Uniformity: Brings uniformity across the country.
4. Logical Arrangement: Removes inconsistencies and gaps.
5. Avoids Judicial Legislation: Reduces scope for judge-made law.
6. National Unity and Planned Development: Helps in unifying diverse laws (important in
India post-independence).
Demerits (Disadvantages):
1. Rigidity: Makes law inflexible and slow to adapt to social changes.
2. Incompleteness: Cannot cover all future situations; gaps may remain.
3. Risk of Defective Code: If badly drafted, errors get perpetuated.
4. Hardship in Diverse Society: Uniform code may ignore local customs (e.g., debates on
Uniform Civil Code in India).
5. Interpretation Still Needed: Even codes require judicial interpretation.
Indian Context: British introduced codification (IPC 1860, Contract Act 1872, etc.) for
uniformity. Post-1955 Hindu Code Bills codified Hindu personal law. Article 44 of Constitution
directs a Uniform Civil Code (yet to be fully implemented).
Q5. Explain the basics of Statutory Interpretation.
Since legislation is written in words, courts must interpret those words to apply the law.
Without interpretation, even a valid statute may be misunderstood or wrongly applied in
practice.
Need for Interpretation
• Ambiguity in language
• Changing social conditions
• Legislative gaps
Rules of Interpretation
The three primary rules are:
 1. Literal Rule (Grammatical): If the words of the statute are clear and unambiguous, the
court must give them their plain, ordinary meaning, regardless of the result.
2. Golden Rule: If the literal meaning leads to absurdity or injustice, the court may modify
the meaning to avoid that absurdity.
3. Mischief Rule (Heydon’s Case): The court looks at what "mischief" or defect the law was
intended to remedy and interprets the law in a way that suppresses the mischief and
advances the remedy.
Legislation is one of the most important sources of law. It means the formal making of law by
a competent authority, mainly the legislature. It is written, authoritative, and binding, and its
scope extends to making, amending, and repealing laws. Legislation may be supreme or
subordinate; supreme legislation is made by the legislature itself, while subordinate legislation
is made under delegated powers. The main merits of legislation are certainty, uniformity, and
accessibility, while its demerits include rigidity and the risk of becoming outdated. Codification
is a major feature of legislation, by which laws are arranged into a systematic code. Statutory
interpretation is the process of finding the correct meaning of statutory words, and it is
necessary to give proper effect to legislative intention.
Convention as a source of law

Q. Explain Convention as a Source of Law.

In jurisprudence, the term ‘convention’ is used in two senses. First, in a narrow sense, it
means trade usage or mercantile convention which is a type of conventional custom. Second,
in a broader constitutional sense, it means constitutional conventions which are unwritten rules
of political practice. For jurisprudence exams under “Sources of Law”, we primarily deal with
the first meaning – convention as a species of custom.
Convention in jurisprudence usually means a non-formal but accepted practice that guides
conduct, that arise from agreement, consent, or mutual understanding between parties and
are treated as binding in certain contexts. In the context of conventional custom or usage, it
becomes relevant as a source of law when parties or courts accept and apply it.
Unlike customs (which develop from long usage), conventions are based on express or implied
agreement.
Nature
Convention is generally unwritten and grows from usage. It may not have the same
independent legal force as legislation, but it can become legally significant when incorporated
into contracts, recognized by courts, or treated as part of accepted legal practice.
Scope:
• Mostly limited to contractual and commercial transactions.
• Courts take judicial notice of well-known usages or require proof.
• They fill gaps in contracts and promote commercial convenience.
• However, they cannot contradict statute law or public policy.
Essential points
For a convention to be legally relevant, it should generally be:
• long established,
• certain and clear,
• reasonable,
• accepted by those affected, and
• not opposed to statute, morality, or public policy
Importance of Conventions
1. Flexibility: Conventions allow the law (especially constitutional law) to adapt to changing
social and political needs without the need for constant formal amendments.
2. Filling Gaps: Where the written law is silent, conventions provide the necessary
guidance for conduct.
 3. Foundation of International Law: Much of International Law is based on "International
Conventions" (treaties and pacts) where sovereign states agree to follow certain rules of
conduct.
Convention as a source of law means a habitual practice or usage which, though not originally
enacted as law, is accepted and followed as binding. In jurisprudence, it is usually discussed
as conventional custom. It derives its force from long usage and acceptance by parties or
society, and it becomes legally relevant when recognized by courts or incorporated into
agreements. A convention must be certain, reasonable, and consistent with law and public
policy. Thus, convention helps fill gaps in formal law and reflects practical social or commercial
needs.