Sources Of Law Essay

Sources Of Law Essay-26
In primitive society disputed points were referred to the wisest men in the community and their decisions were accepted and made precedents for similar cases.When social organisation became more complex and tribes intermixed either for the purpose of trade or matrimony, conflict of customs became more usual.

In primitive society disputed points were referred to the wisest men in the community and their decisions were accepted and made precedents for similar cases.When social organisation became more complex and tribes intermixed either for the purpose of trade or matrimony, conflict of customs became more usual.

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No one can say exactly when and how custom arose, “except that it was shaped by the cooperative action of the whole community and not by any kingly or legislative command.” But one thing is clear, that customs are accepted and followed as a matter of habit.

Their sanction is utility or the general desire of men for order and justice.

At that time the necessity was felt to supplement custom by interpretation.

Whenever custom failed to give a just solution or was obviously not suited to the case, the dispute was decided according to commonsense. In the beginning they were oral and unwritten and passed from generation to generation by tradition.

In every country the greatest importance is attached by both judges and lawyers to the opinions of legal luminaries.

The jurists collect and arrange in logical form past customs, decisions, and laws.

Customs are not laws in the political sense of the term.

But when the State recognizes these customary rates as binding, they acquire the status of law.

By comparing decisions and by basing new decisions on preceding ones, they developed the Common Law. In our own times a judge, while applying the law, interprets it, and in doing so he modifies or explains it either subconsciously or deliberately.

Customs, too, are to be fitted to dynamic conditions of society and their rigidity is lubricated by the progressive social forces. This is done by judges, and Justice Holmes, of the United States Supreme Court, gave us a bare truth when he said that judges do and must make laws.

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