Juristic Writings as a Source of Law
Juristic Writings as a Source of Law
What are Juristic Writings?
Juristic writings, also called legal literature or legal treatises, are books, commentaries, or scholarly works written by eminent jurists, legal scholars, or judges. These writings analyze, interpret, and explain the principles of law, customs, and judicial decisions.
Why Are Juristic Writings Important?
They provide clarity and understanding of complex legal principles.
Help in interpreting ambiguous laws and customs.
Assist courts in formulating legal doctrines.
Serve as a secondary source of law when primary sources (statutes, precedents) are silent or unclear.
Influence law-making and legal reforms.
Juristic Writings as a Source of Law
Unlike statutes or judicial precedents, juristic writings are not binding but are highly persuasive. They help the courts to:
Understand the intent behind laws.
Fill gaps where there is no direct law or precedent.
Decide cases based on reasoned legal philosophy.
Role in Judicial Decisions
Courts often refer to juristic writings when:
The law is ambiguous or incomplete.
They need to interpret ancient customs or customary laws.
Seeking authoritative commentary to support their reasoning.
Conditions for Juristic Writings to be Considered
The writings should be by reputed jurists or legal scholars.
The opinions should be reasonable and logical.
The writing should be consistent with established law and principles of justice.
Case Law Illustrations
1. R.M.D. Chamarbaugwala v. Union of India
Facts: The case involved the interpretation of the law relating to prize competitions.
Held: The Supreme Court referred to juristic writings to understand the legal principles involved.
Principle: Juristic writings can assist courts in interpreting statutes and legal principles where necessary.
2. Gopalan v. State of Madras
Facts: The issue related to the scope of fundamental rights.
Held: The court referred to legal commentaries to understand the nature of rights and their limitations.
Principle: Juristic writings help in elaborating legal concepts and applying them to contemporary issues.
3. Bhikaji Narain Dhakras v. State of Madhya Pradesh
Facts: The question involved the interpretation of the term 'public servant'.
Held: The court examined juristic writings to define and understand the scope of the term.
Principle: Juristic writings can be relied upon to elucidate legal terms and concepts.
Distinction from Other Sources
| Source | Binding Nature | Role |
|---|---|---|
| Statutes | Binding | Primary source |
| Judicial Precedent | Binding (stare decisis) | Primary source |
| Customs | Binding (if valid) | Primary source in absence of statutes |
| Juristic Writings | Persuasive, not binding | Secondary source, aids interpretation |
Summary
| Aspect | Explanation |
|---|---|
| Definition | Scholarly works by jurists explaining and interpreting law |
| Role | Aid courts in interpreting laws, fill gaps, and explain concepts |
| Binding Nature | Not binding but highly persuasive |
| Conditions for Reliance | Written by reputed jurists, consistent with justice and law |
| Examples in Case Law | Chamarbaugwala, Gopalan, Bhikaji Narain Dhakras |
Conclusion
Juristic writings are a valuable secondary source of law that support and guide judicial reasoning. Though not binding, they carry considerable weight in interpreting laws, understanding customs, and shaping the development of legal principles.
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