Unit 2 of Jurisprudence / Legal Theory (syllabus: Module II — formal and material sources; custom, its kinds and the conditions of its validity, and trade usage; precedent, stare decisis, prospective overruling, the declaratory theory, ratio decidendi and obiter dicta, the circumstances that destroy binding force, and the merits and demerits of precedent; legislation, its kinds, merits and demerits, codification and statutory interpretation; and convention). Below: what the unit covers, the provisions it turns on, and the cases an examiner expects you to name.
What this unit covers
- Distinguish the formal, material, historical and legal sources of law.
- What are the essential conditions of a valid custom?
- How is a precedent classified, and what turns on the classification?
- What is the ratio decidendi, and how is it distinguished from obiter dictum?
- State the three tests for finding the ratio decidendi.
- What circumstances destroy the binding force of a precedent?
- Distinguish supreme, subordinate and delegated legislation, and state the controls over delegation.
- State the principal rules of statutory interpretation.
Treat that list as a self-test: recite each topic's rule from memory before you open its cases.
Leading cases
- Salmond
- Salmond and Keeton
- Union of India v K.S. Subramanian
- State of Orissa v Sudhanshu Shekhar Mishra
- Goodhart
- A.R. Antulay v R.S. Nayak on per incuriam
- Salmond and Gray on the definition of legislation
- Heydon's Case