The law rests at many places. If we want to know of legal rules, as “they really are”, then we have to look at the primary source. When we want assistance in finding and interpreting the “law” we look at the secondary sources. In India, the primary source of all the laws is the Constitution of India for all levels and all the bodies of the Governments.
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For many of the laws at the national level, the international pressures or obligations have been the source – which includes treaties (agreements between or among the nations). International Conventions have played a significant role in harmonisation of trade law by bringing in common legal frameworks.
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Court can create common law through their judicial opinions. In India judiciary has played an important role, and at times even refuses to accept the law enacted by the legislature. “The legislature can not declare that the law declared by the Supreme Court is not binding.” Then the administrative agencies, part of executive branch, also have the power to enact administrative rules and regulations.
During the second half of nineteenth century and first half of twentieth century, political factors, which included military and economic conquest by Western powers, greatly affected not only the source of law but the scope of legal change. In a country like the US, while the primary source of federal law is akin to that of India, the situation therein with regard to primary source of State Law is different.
Each state has its own Constitution, which is more detailed than the federal constitution. State Constitutions can not violate the constitutional rights granted by the federal constitution, but can give additional rights, not found in the US Constitution.
Apart from the primary source, there are secondary sources of law too. In the US, the most influential of these sources are Restatements of Law complied by the American Law Institute (consisting of a group of distinguishing lawyers, judges, and professors).
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Authoritative statements of common law in particular area as compiled by them are called Restatements of the Law. Once court adopts, the statement becomes a part of common law. To reduce interstate variations in law, the National Conference of Commissioners (NCC) on Uniform State Law was created in 1892.
The courts may also refer to legal encyclopaedia, legal dictionaries, treatises, legal review articles and other secondary sources to interpret the legal rules contained within the primary sources of the law.
In the post-globalisation period, outside the US and the EU, most of the States appear to be rule takers rather than rule makers. Many laws are legislated without having any say in shaping them.
Many of the non-governmental organisations have also contributed by articulating and disseminating legal norms. Some of the companies/corporations have also played a key role in the process of law making. To illustrate, Lloyds of London played a strategic role in the globalisation of the law of contract, specifically in the domain of marine insurance contracts. The pharmaceutical firm Pfizer was a key player in developing links between intellectual property and trade.
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The International Chamber of Commerce is neither a governmental organisation nor an inter-governmental organisation, but a private and mega trade association. It has done a yeoman’s service in prescribing Uniform Custom and Practice (UCP). The current UCP 500 is a technical document with 49 articles covering a myriad of issues, from the standard care that banks must exercise in examining documents, to standard practice for banks examination of international trade documents, to allocation of “liability or responsibility” for either payment or non-payment.
Though it is neither a treaty, nor is it customary law, yet exporters and importers universally identify UCP 500 as their choice of law. Similarly, the International Union of Credit and Investment Insurers (Berne Union) prescribes norms for export credit insurance.
The members of Berne Union are making law in their capacity as practitioners rather than as legislators or diplomats. Another non-governmental agency, the Arrangement on Officially Supported Export Credits, governs the financing of national exports by official export credit agencies.