L E G A L

S Y S T E M O F
B A N G L A D E S H
MD. JAHID-AL-MAMUN
LECTURER
DEPARTMENT OF LAW
UNIVERSITY OF DHAKA
SESSION 7
HIERARCHY OF SOURCES OF
L AW I N B A N G A L A D E S H
 What are the Sources of Law in
Bangladesh?

Is there any Hierarchy in the

Outline Sources of Law in Bangladesh?

Kelsen’s Pure theory of law in

Bangladesh.
 W H Y I S
T H E R E A
H I E R A R C H Y
O F N O R M S ?
• Conflicts between norms arise within a legal system and between legal
systems,
• when two norms addressing the same issue are held to be mutually
incompatible.
• a ruling needs to be made on a given issue, judges have to decide
between the two conflicting norms.
K E L S E N ’ S
H I E R A R C H
Y O F
N O R M S
• Relationship between two norms,
• it encompassed all norms of every
legal order and was framed within an
overall theory of law.
• the functioning of any given legal
order in terms of a hierarchically
ordered set of norms,
• namely through a ‘pyramid’ of
mutually interconnected norms,
• the distinction between the concepts of norm, legal text and source of
law, the notion of legal system as resulting from the mutual
interconnection of sources of law,
• the difference between validity and efficacy of law, and so on.
• Law regulates its own creation inasmuch as one legal
norm determines the way in which another norm is
created, and also, to some extent, the contents of that
norm.
• Since a legal norm is valid because it is created in a way
determined by another legal norm, the latter is the reason
of validity of the former.
• The relation between the norm regulating the creation of
another norm and this other norm may be presented as a
relationship of super- and sub-ordination.
• The norm determining the creation of another norm is
the superior, the norm created according to this
regulation, the inferior norm.
• Basic Norm (Grundnorm):
• At the apex of the Kelsenian Pyramid is the "Basic
Norm" or "Grundnorm."
• This is the fundamental, foundational norm that gives
legitimacy to the entire legal system.
• It is a hypothetical norm that cannot be derived
from any other legal norm but serves as the ultimate
source of authority.
• The Grundnorm varies from one legal system to
another and is not a concrete written law.
• Primary Norms:
• Beneath the Basic Norm are the primary
norms or fundamental legal rules.
• These are the core legal norms that govern
various aspects of society, such as contract
law, criminal law, and administrative law.
• Primary norms derive their validity from
the Basic Norm and are structured
hierarchically.
• Secondary Norms:
• Below the primary norms are the secondary norms.
• Secondary norms are rules that govern the creation,
modification, interpretation, and application of primary
norms.
• They include rules of procedure, evidence, and judicial
interpretation.
• Secondary norms are subordinated to primary norms
and help ensure the functioning of the legal system.
• Tertiary Norms: Tertiary norms, if
present, are situated at the base of the
pyramid.
• They govern the application of secondary
norms, such as rules for judicial decision-
making and administrative procedures.
• Tertiary norms are further subordinated to
secondary norms and serve to
operationalize the legal process.
L E T ’ S F I N D
A
H I E R A R C H Y
O F N O R M S
I N L E G A L
S Y S T E M O F
B A N G L A D E S
H … . .
Article 7 of the Constitution

• (1) All powers in the Republic belong to

the people, and
• their exercise on behalf of the people shall
be effected only under, and by the
authority of, this Constitution.
• (2) This Constitution is, as the solemn
expression of the will of the people, the
supreme law of the Republic, and
• if any other law is inconsistent with this
Constitution that other law shall, to the
extent of the inconsistency, be void.
Article 26 of the Constitution

• (1) All existing law inconsistent with

the provisions of this Part shall, to
the extent of such inconsistency,
become void on the
commencement of this
Constitution.
• (2) The State shall not make any
law inconsistent with any
provisions of this Part, and any law
so made shall, to the extent of such
inconsistency, be void.
Article 65 (1) of the Constitution

• There shall be a Parliament for

Bangladesh (to be known as the House of
the Nation) in which, subject to the
provisions of this Constitution, shall be
vested the legislative powers of the
Republic:
• Provided that nothing in this clause shall
prevent Parliament from delegating to any
person or authority, by Act of Parliament,
power to make orders, rules, regulations,
bye laws or other instruments having
legislative effect.
 An "ordinance" is a temporary
law that can be promulgated by
the President when Parliament
is not in session.

Ordinance Ordinances have the force of

law and are used in urgent
situations when immediate
action is required.
 Ordinance-making power (Art 93 of the
Constitution)
• Step 1: Parliament stands dissolved or is not in session
• Step 2: President is satisfied that circumstances exist which render
immediate action necessary
• Step 3: President makes and promulgates an ordinance
• Step 4: Ordinance has the same force of law as an Act of Parliament
 Ordinance-making power (art 93)
• Step 5: The following provisions cannot be made under this clause:
• - Provisions that could not lawfully be made under the Constitution by Act of Parliament
• - Provisions for altering or repealing any provision of the Constitution
• - Provisions that continue in force any provision of an ordinance previously made
• Step 6: The ordinance is laid before Parliament at its first meeting following its
promulgation
• Step 7: The ordinance ceases to have effect at the expiration of thirty days after it is laid
before Parliament
• Step 8: If a resolution disapproving of the ordinance is passed by Parliament before such
expiration, the ordinance ceases to have effect upon the passing of the resolution.
• Power of legislation includes the
power of repeal, modification, or
alteration of existing laws without
contravening the provisions of
constitutions.
• Parliament cannot make a law
which is:
• Inconsistent with Part III of the
Constitution
• Inconsistent with other provisions
the constitution
• Cannot delegate essential
legislative functions.
 Delegated Legislation (Art 65.1)
• Provided that nothing in this clause shall prevent Parliament
from delegating to any person or authority, by Act of Parliament,
power to make orders, rules, regulations, bye laws or other
instruments having legislative effect.
• Modern complex society
• Parliament legislates in skeleton, leaving the details to be filled up by
the executive departments or other authorities.
• Predominance of cabinet
Limitation of delegated
legislation
• Judicial control
• A delegated legislation may be challenged:
• Delegated legislation is void because the
delegating legislation is not constitutionally
valid
• Delegated legislation is not constitutionally
valid
• Delegated legislation is ultra vires the
delegating statute
• Malafide, arbitrary or unreasonable.
 J U D I C I A L
P R E C E D E N T
Article 111 of the
Constitution
• The law declared by the
Appellate Division shall be
binding on the High Court
Division and
• the law declared by either
division of the Supreme
Court shall be binding on
all courts subordinate to it.
Certainty and consistency in judicial decisions;

Organic development of law;

Judicial interpretation;

Ratio decidendi: general reasons upon which the decision is

based on the test or abstract from the specific peculiarities of the
particular case.

Obiter dicta:
 MERCI
B E A U C O U P.