Sources of Law

The term “Sources of Law” has been used in different senses by different writers and different views have been expressed from time to time. Sometimes the term is used in sense of the sovereign or the State from which law derives its force or validity. Sometimes it is used to denote the causes of the law or the matter of which law is composed.

The view of the Salmond was that the main two sources of law were formal or material. Material sources could be sub divided into legal sources and historical sources. Legal sources were legislation, precedent, custom, agreement and professional opinion.

In general, law may be found to proceed from one or more of the following legal sources: from a written constitution, from legislation, from judicial precedent, from customs and from the writings of the expert.

I.Legislation

The term “legislation” is derived from the Latin words, legis meaning law and latum meaning to put or set. Etymologically, legislation means making or setting of law. The view of the analytical school is that typical law is a statute and legislation is the normal process of law making. They do not admit the claim of custom to be considered as a source of law.

Supreme and Subordinate Legislation

Supreme Law is that which proceeds fro sovereign power in the State. It cannot be repealed, annulled or controlled by any other legislative authority. On the other hand, subordinate legislation is that which proceeds from any other authority other than the sovereign power.

II. Precedents

Judicial precedents are an important source of law. They have enjoyed all authority at all times and in all countries. This is particularly in case of England and other countries which have been influenced by English Jurisprudence.

Nature of Precedent

A precedent is purely constitutive and not abrogative. This means a judicial decision cannot make a law but alter it. Where there is settled rule of law, it is the duty of the judges to follow the same. They cannot substitute their established rule of law.

Kinds of Precedent

Authoritative and Persuasive

An authoritative precedent is the one which judges must follow whether they approve of it or not. A persuasive precedent is the one which the judges are under no obligation to follow but which they will take into consideration and to which they will attach great weight as it seem to deserve.

Absolute and Conditional Precedent

In the case of absolutely authoritative precedents, they have to be followed by the judges even if they do not approve of them. A conditional precedent can be disregarded either by dissenting or overruling.

Declaratory and Original Precedents

A declaratory precedent is the one which is merely the application of an already existing rule of law. An original precedent is the one which creates and applies a new rule.

Stare Decisis

There was no doctrine of stare decisis as there was no reporting of the decisions of the Court. It was in the 17th century that the decision of the Exchequer Courts came to be reported in England and was given a binding force.

The doctrine of the stare decisis has been recognized under Article 141 of the Constitution of India. It provides that the law declared by the Supreme Court of India shall be binding on all courts in India. It has been held in Bengal Immunity Co. Ltd. v. State of Bihar[1] that the expression does not include the Supreme Court of India.

III. Custom

According to Salmond, Custom is an embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Custom is the oldest form of law making. A study of ancient law shows that in primitive societies, the lives of the people were regulated by customs which developed spontaneously according to circumstances. It was felt that a particular way of doing things was more convenient than others.

Essentials of Custom

  • A custom to be valid must be proved to be immemorial.
  • It must be reasonable.
  • Only that custom is valid which have been continuously observed without any interruption from time immemorial.
  • The enjoyment of a custom must be a peaceable one.
  • A valid custom must be certain and definite.
  • A custom is valid if its observance is compulsory.
  • The custom must be general and universal.
  • A valid custom must not be opposed to public policy or the principles of morality.
  • A valid custom must not conflict with the statute law of the country.

Custom and Prescription

When a thing is practiced for a long time, it gives rise to a rule of law known as custom, but it gives to a right, it is called prescription. A custom is a source of law but a prescription is a source of right.

Conclusion

In primitive society, custom was the sole source of law. However with the passage of time, the importance of custom began to decline. Custom as a source of law has lost its former position and importance. Modern man looks to legislature for enacting laws at a speed which is demanded by the atomic age.

References –

V.D. Mahajan, Jurisprudence and Legal theory (Eastern Book Company,5th edn, 2021)  572- 573


[1] AIR 1955 SC 661

Aishwarya Says:

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