Sources Of Law
• Concept And Meaning of Source.
• Classification of Sources.
• Major Sources of Law- (1) Legislation
(2) Precedents
(3) Customs
Concept & Meaning
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The term ‘sources of law’ – Used in different senses
by different writers and different views have been
expressed from time to time.
Holland – The expression ‘sources of law’ is
sometimes employed to denote the quarter whence we
obtain our knowledge of law. e.g: Whether from the
statute book, the reports or esteemed treatise.
Sometimes the term is used in the sense of the
Sovereign or the State from which law derives its
force or validity.
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Sometimes used to denote the causes of law or the
matter of which law is composed.
Sometimes it also indicates the organs through which
the State either grants legal recognition to rules
previously unauthoritative or itself creates new law,
e.g. adjudication, equity & legislation.
Also used to point out the origin or the beginning
which gave rise to the stream of Law.
VARIOUS VIEWS:
• C.K.Allen – uses it in the sense of agencies
through which the rule of conduct acquire the
character of Law by becoming definite, uniform
and compulsory.
• Vinogradoff –uses it as the process by which the
rule of law may be evolved.
• Oppenheim – uses it as the name for a historical
fact out of which the rule of law may be
evolved.
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According to School of Natural Law – Law has a
divine origin. Every Law is the gift of God & the
decision of sages.
John Austin who led the Analytical School of Law
refers to 3 different meanings of the term ‘ Sources of
Law.’
1. To the immediate or direct Author of Law, which
means the sovereign in the country.
2. To the historical document from which the body of
law can be known, e.g. , the Digest Code of Justinian.
3. To the causes which have brought into existence
the rules which later on acquire the force of Law. E.g.
Customs, judicial decisions
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The Historical School of Law represented by persons
like Savigny, Sir Henry Maine, Puchta, etc. attacked
the Analytical School. Their contention was –
Law is not made, but is formed.
The foundation of law lies in the common
consciousness of the people which manifests itself in
practices, usages & customs of the people.
Again the Sociological School of law protests against
this orthodox conception of law, i.e. it emanates from
a single authority in the State.
According to this school, law is taken from many
sources & not from one.
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Ehrlich writes: At present as well as any other time,
the centre of gravity of legal development lies not in
legislations, not in juristic science nor judicial
decisions, but in society itself.
Duguit writes that law is not derived from any single
source and the basis of law is public service. There
need not be any specific authority in a society which
has the power of making laws.
SOURCES OF LAW AND SOURCES OF RIGHTS
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Sources of Law may also serve as sources of rights.
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By Source of
Law is meant some fact which is
legally constitutive of rights.
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It is the defacto antecedent of a legal right in the same
way as source of law is defacto antecedent of a legal
principle.
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To a large extent , the same class of facts which
operates as source of law also operate as sources of
right
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Some facts creates rights & not laws, some create
laws & not rights and some creates both.
e.g: Decision of inferior courts act as source of rights
but are not laws.
Immemorial customs gives rise to rights and law
at the same time.
Classification Of Sources Of Laws:
The view of Salmond was that the two main sources of law were-
Sources of Laws
Material
Formal
Legal
Historical
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Formal Sources: Salmond defined it as those sources
from which a rule of law derives its force and validity.
The formal source of law was the will of the state as
manifested in statutes or decisions of the courts. The
authority of law proceeds from that.
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Material Sources: Are those from which the matter is
derived, though not validity of the law. The matter of
law may be drawn from all kinds of material sources.
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Again Salmond classifies material sources of law as
legal & historical sources.
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Legal Sources:
Are those sources which are the
instruments or organs of the State by which legal rules
are created,e.g. Legislations, customs, etc.
These are authoritative and are followed by law courts
as of right.
They are the gates through which new principles find
admittance into the realm of law
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Some laws which emanates from legal sources are:
(a) Statutory Laws: These are enacted by the legislature
& as such legislations are the
source of law.
(b) Case-Laws: These refer to the decisions delivered by
the courts & developed in form of case-laws. They find
their main source in the doctrine of precedents.
(c) Customary Laws: These are derived from customs,
which are practiced as habits over generations. It has its
source in customs.
(d) Conventional Laws: These are the laws which are
generally derived from conventions/practices contained
in contracts & agreements. Here the agreements serve as
the source of these laws.
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Historical Sources : These are those sources where
rules which subsequently turned into legal principles,
were first to be found in an unauthoritative form.
They are not allowed by the law courts as of right.
They operate only mediately and indirectly.
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Its concerned with Legal History & not with Legal
Theory.
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These sources however can become legal sources if they
are so recognized by the state & are included in the law.
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Majorly we can classify the following as Historical
Sources – 1. Juristic Writings
2. Literary Works
3. Foreign Decisions
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In respect of its material origin, a rule of law has often a
long history.
Rule of Law
Legal Source
Decision Of Court of Law
Writing of some lawyer,e.g
Pothier
Historical
Source
Lawyer himself may have
taken the material from
the edict of urban praetor
Material
Sources
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Acts of Parliament & Works of Bentham – Material
Sources of English Law.
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Decisions of SC of India & Decisions of SC of USA.
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Criticism To Salmond’s View:
Allen criticises Salmond for his attaching little
importance to historical sources.
Keeton also criticised Salmond’s classification of
Formal sources. As Salmond in modern times, the only
source of law is the state, but the state is an organisation
which enforces law.
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Keeton defines sources of law as the material out of
which law is eventually developed by the activity of
judges.
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While criticising Salmond, Keeton gives his own
classification of laws:
Binding Sources: Binding on judge & he is not
independent in their application. E.g.: Legislation,
Judicial Precedents, etc.
Persuasive Sources: Are useful only when there are no
binding sources on a particular point. E.g: Professional
opinions, Principles of morality or equity.
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However, the Salmond’s classification also indicated to
these binding & persuasive sources and therefore its
criticism is not well founded.
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However, taken as a whole, the classification of
Salmond into formal & material was not found
satisfactory & perhaps that is the reason why the editor
of Twelfth edition of Salmond on Jurisprudence has
omitted it. It deals with Legal & Historical sources.
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All rules of law have Historical Sources. They may have
their origin somewhere although it may not be known to
us. But not all have legal sources. Had it been so , it
would be necessary for the law to proceed ad infinitum
in tracing the descent of its principles.
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In every legal system certain ultimate principles are
there from which others are derived, but they
themselves are self-existent.
Legal Sources of English Law:
English law, which is without a written constitutions
chiefly proceeds from legislations & precedents.
The corpus juris i.e the body of law is divisible into two
parts, by reference to the sources from which it
proceeds.
One part
Enacted Law
Legislations
Contained in statute books &
other volumes of enacted law
Second Part
Case Law
Judicial Precedents
Volume of enacted law
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Having regard, not merely to modern & general law of
England, but also to that of law of earlier times, and to
various forms of special laws that exist side by side with
general laws, it is necessary to recognise two other legal
sources – Customs & Agreement.
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By reference to their legal sources, there are four kinds
of law:
1. Enacted Law/ Statutory Law
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Legislations.
2. Case Laws
Precedents.
3. Customary Laws
Customs.
4. Conventional Laws
Agreements.
In addition to the above, professional opinions of
eminent jurists play a very important role in evolution of
laws. They are known as Juristic Laws.
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Some examples:
1. In Bradford v. Symondson, the judgment turned
almost entirely on the discussion of the books of leading
text writers on insurance.
2. In Haynes v. Harwood, the court followed a
conclusion reached by Prof. Goodhart in article written
by him in the Cambridge Law Journal.
Prof. Roscoe Pound explains the part played by the
textbooks in development of American Law in his book
The Formative Era.
His view is that doctrinal writings has had more
influence in the United States than in England and even
today the influence is continuing.
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Ultimate Legal Principles:
These are those self- existing principles of which no
legal origin is known though it may be possible to trace
them to some historical source.