Sources of Law

Sources of Law

Introduction:
The term \”law\” includes many different elements and comes from several sources. These can be written in the constitution, passed by the legislature, or developed by courts through decisions. In simple words, a \”source of law\” means the origin or beginning of rules that guide human behavior. These sources can be international, national, regional, or religious in nature.

Meaning:
Sources of law are the origins of legal rules that regulate human actions. These may include formal written rules or customs passed down through generations.

Interpretation:
According to Black’s Law Dictionary, sources of law include anything that provides authority for legal decisions—like constitutions, treaties, statutes, or customs.

Classification of Sources of Law

According to jurist Salmond, sources of law are divided into two main types:

• Formal Sources: These are sources that give laws their legal authority or force.

• Material Sources: These provide the content or matter from which laws are made, but not their authority.

Formal Sources of Law

Formal sources give laws their legal power. Sir John Salmond defines them as the sources from which a rule of law gets its authority and recognition.

Material Sources of Law

Material sources provide the substance of law, such as customs or writings, but do not make a law binding by themselves. Salmond divides material sources into:

• Historical Sources: These include writings by philosophers and ancient thinkers. They are persuasive but not legally binding.
  Examples:

  • Religion and morality

  • Literary works like legal encyclopedias, doctrines, and academic writings

• Legal Sources: These are officially recognized by the courts and form part of binding law.
  Examples include:

  • Legislation

  • Judicial Precedents

  • Custom

  • Agreements

  • Treaties

Legislation

Introduction:
Legislation is the process of making written laws. It is a formal way of declaring new legal rules by a recognized authority. Laws created through this process are called statute laws or enacted laws. In modern times, legislation is considered the most important source of law.

Origin:
The word legislation comes from Latin: “legis” means law and “latus” means to make. So, legislation means “making of law.”

Types of Legislation:

• Supreme Legislation: Made by the highest authority (like the parliament) and cannot be overridden by any other body.

• Subordinate Legislation: Made by authorities below the sovereign power and is valid only when allowed by a higher authority.

Forms of Subordinate Legislation:

• Colonial Legislation: Laws made by colonial governments under control of the main government

• Executive/Delegated Legislation: Laws made by the executive branch under powers given by the legislature

• Judicial Legislation: Rules made by the courts to manage their own operations

• Municipal Legislation: Local laws (bye-laws) made by city or town councils

• Autonomous Legislation: Rules made by private bodies like universities or companies under government approval

Control over Delegated Legislation:

• Parliamentary control

• Expert review

• Judicial review

• Public awareness and transparency

Advantages of Legislation:

• Clear and uniform rules

• Fast and efficient system

• Planned development

• Easy to understand and access

• Prevents confusion and delays in justice

Disadvantages of Legislation:

• May be biased or rigid

• Can be complex or hard to interpret

• Lacks flexibility

• May override long-standing practices or expectations

Judicial Precedent

Introduction:
Judicial precedent means using past court decisions as a guide for future cases. If a new issue comes up where no law exists, judges rely on earlier judgments. These decisions then become models (precedents) for similar cases in the future. Precedent is also known as judge-made law or case law.

Definition:
A precedent is a past legal decision that serves as a rule for deciding future similar cases.

Main Parts of a Precedent:

• Ratio Decidendi: The legal reason for the decision, which is binding

• Obiter Dicta: Additional comments made by the judge, which are not binding

Importance of Precedent:

• Precedents are legally binding, especially decisions from higher courts

• They provide consistency and predictability in the law

• They are useful when written laws are unclear or silent on an issue

Theories About Precedents:

• Declaratory Theory: Judges only declare existing law; they don’t create new law

• Law-Making Theory: Judges create new rules while deciding new cases

Types of Precedents:

• According to Nature:

  • Declaratory Precedent: Applies existing law

  • Original Precedent: Creates new legal principles

• According to Authority:

  • Authoritative Precedent: Binding on all lower courts (e.g., decisions by the Supreme Court)

  • Persuasive Precedent: Not binding but may influence a judge\’s decision (e.g., judgments from foreign courts)

Custom

Introduction:
Custom is the oldest source of law. It existed even before formal laws were written. In early societies, people followed customs to resolve disputes and guide daily behavior. Although its importance has decreased over time, custom still plays a key role in certain areas like personal laws and inheritance.

Meaning:
Customs are long-standing practices followed by groups of people. When these practices are accepted by society as legally binding, they become a source of law.

Definitions:

• Hollond: A general course of conduct

• Keeton: Rules established by usage and regarded as legally binding

• Salmond: Principles accepted by society as fair and useful

Types of Customs

1. Legal Custom:
These customs are legally binding and do not depend on agreements.
Two types:

• Local Custom: Applies in a specific area only.
  Example: Celebrating Basant in a particular region

• General Custom: Applies across the whole country. Must be widely accepted and reasonable

2. Conventional Custom:
These are not legally binding unless included in a contract. They are based on mutual agreement between the parties involved.

Requirements for a Valid Local Custom

• Must be reasonable

• Not against written law

• Followed as a right

• Very old (from time immemorial)

• Enjoyed peacefully

• Clearly defined and consistent

Conclusion

The sources of law are essential in understanding how laws are formed, interpreted, and applied. Legislation provides a formal and structured approach, while judicial precedents ensure consistency through past judgements. Customs reflect long-standing traditions and social practices that have shaped modern legal systems. Together, these sources create a strong foundation for justice and legal order in society.