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Sources of LawVarious jurists have given various sources but the most appealing are given by Salmond. His classification of the sources of law is as following: (a) Formal Sources, and (b) Material Sources Formal Sources are those what from law derives its force of enforcement and validity. Material sources are those from which is derived the matter and not the validity of law. Material sources have been further categorised as: a) Legal, (b) historical. Legal Sources have three categories: 1. Legislation, 2. Precedents, and 3. Customs Legislation: It is that source of law, which consists in the declaration of legal rules by a competent authority. Such authority is called legislature who forms the law called enacted law while other laws are not enacted laws. Kinds of Legislation: Legislation is usually of two kind i.e. Supreme Legislation (Statutes) and Subordinate Legislation e.g. colonial legislation, Executive legislation, Municipal Legislation, etc. InterpretationTo Salmond, ‘ Interpretation’ is the process by which the courts seek to ascertain the meaning of a particular “legislation”. In other works, interpretation provides the link between the language and spirit of law. Kinds of Interpretation 1st is Grammatical Interpretation which is concerned only with the language and form of the legislation (litera legis). And 2nd is Logical interpretation that would deal legislation beyond its lingual facts, touching the spirit of law to seek true intention of the legislature (sententia legis) in the enactment of a particular statute. Principles of InterpretationIn all ordinary cases the courts are to observe strict literal interpretation of an enacted law. In other words courts would accept litera legis as the exclusive and conclusive evidence of the intention of legislature (sententia legis), taking it absolutely for granted that the legislature has said what it has meant, and meant what it has said. Judges can not take or add to or modify the letter of the law simply because they have reason to believe that the true intention of the legislature has not been expressed in that particular enactment. In all such ordinary cases grammatical interpretation is the sole form allowable. According to Salmond still if there are defects of the litera legis nature that would affect law then it must be in the nature of say (1) ambiguity, (2) Inconsistency, (3) Incompleteness. In case of ambiguity courts may go behind the letter of the law and to ascertain from other sources as best as they can the true intention which the legislature has failed to express. In case of second d defect i.e. inconsistency in statutory expression, the court is to ascertain the true intention of the legislature and to correct the gap that arises out of inconsistency in the parts of law. In case of incompleteness the court would apply the logical interpretation. Corollary:By now we are in the position to know about the ad advantages and disadvantages of law. Briefly we can say that the ultimate aim of law is the administration of justice. Law is the means, and justice is the end. To this effect Law has the following advantages:
On the other hand the defects or disadvantages of Law as counted by critics are as follows:
Purpose of Criminal Justice: According to Jurists such purposes are, a) Deterrent punishment, b) Preventive punishment c) Reformative and d) retributive punishment. Functions of the civil courts: The primary function of civil courts is administration of justice i.e. enforcement of rights and punishment of rights a punishment of wrongs. And the secondary functions can be stated as: Petition of Rights, Declaration of Rights, Administrations, Titles of Rights. |
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