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Sources of Law

Sources of Law

The word “Sources” means origins. Different Writers have given different sources of law and different meaning to term sources of law. Austin says that law originates from sovereignty, Savigamy says it to be Volksgeist (will of the people). The theologians say that law originates from the God.   Before understanding different sources of law we need to understand the meaning of the term “Sources of Law”

The expression sources of law mean the origin from which rule of human conduct come into existence and derives legal force or binding character.

Sources of Law in modern jurisprudence

Even in modern jurisprudence the term ‘sources of law’ is used in two senses. Firstly, in the sense that from state and sovereignty from where law derives its validity. In other sense, it is used to denote the causes of law or the contents or matter of which law is composed

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Classification of Sources of Law

Salmond classifies sources of Law into two categories.

  1. Formal Sources: The sources which are recognized by the law itself. For example, statutes, judgments
  2. Material Sources: Those laws from which law derives its matter of which it is composed of and not its validity. Example, Custom
    1. Legal Sources: Legal material sources are the sources which are not only in fact but also in law. These are those sources which we recognize as such by the law itself through the mouth of the court of law. Legal sources are the only gates through which new principle can find entrance into law. They are authoritative in nature and operate directly and immediately. E.g. Legislations and precedents
      1. Customs: Which give rise to the customary law
      2. Legislations: Which give rise to the enacted law
      3. Precedents: which give rise to case law
      4. Agreements: which give rise to the conventional law
    2. Historical Sources: These are sources only in term of fact and lack of authoritative value. These sources influence the cause of legal development but they speak with no authority. They only have persuasive value. They apply indirectly. E.g. Juristic opinion and legal writings. Salmond further said that historical sources pertaining to the legal history and not to legal theory.

Keeton’s Classification of Law

According to him, the only formal source of law states. But the state is an organization enforcing the law and thus it cannot be the source of law.

  1. Binding source of Law: These are binding on the judges, and he is not independent in their application. These are Customs, Legislations, Precedents
  2. Persuasive Source of Law: These are used when there are no binding sources at a particular point. Juristic opinion and Legal writings are some of the examples.

Sources of law in Indian Context

In the Indian context, ‘Sources of law’ is used in 2 senses. First, duty is the foundation head of all law; according to the modern jurist, it is sovereignty from where the law emanates. Secondly, it means where one must resort to getting the law. In the later sense sources of Hindu law are Sruti, the Smriti, and the immemorial customs.

Prior to the brutish rule, Hindus and Muslims were governed by their personal laws. There were mainly 4 sources of laws in Hindu law

  1. Sruti
  2. Smriti
  3. The conduct of the Virtue
  4. Good conscience

Similarly, there a 4 primary sources of Mohammedan law

  1. Quran
  2. Ahadis
  3. Ijma
  4. Kiyas

Sriti and Quran are supposed to be direct revelation from god but the language of both is the human origin.

After the introduction of English legal system in India, English legal sources of law replaced the earlier sources of law and the modern Indian Jurisprudence has its main origin from the English sources of law.

Legal Sources in English Law

All the legal system does not necessarily have same sources of law. Even it might be possible that the same legal system may have different sources of law at the different point in time. For example, before the codification of Hindu law, Dharma Shastras, Commentaries, and customs were treated as a source of law. But after the codification of Hindu law, precedents have taken the importance.

As far as English law is concerned, are Customs, Legislations, Precedents, and agreements have been recognized as a source of law.

The English Corpus Juris is divided into two parts,

  1. Statute law or legislation
  2. Case laws

The legislation is a formal codification of law by an authority in the state that is recognized by the court. Whereas, presidents are the decided case laws based on similar facts.

English law also recognizes customs and conventional law as two other sources of law. When customs follow certain principle they are treated as the obligatory law whereas the conventional law is an agreement between parties that are enforceable in the court of law.

Sources of law in modern time

In modern times, most of the law is made by the legislation. Courts decisions or precedents also make law in some countries. Where there is no legislation or court’s decision, precedents are looked upon and are given great importance. Some of the countries even preserve customs and incorporate in their legislation.

Judges even consider legal writings and opinion of jurists while giving decision whenever there is a gap at some point.

 

Books Referred: Jurisprudence

The legal theory by B.N. Mani Tripathi

Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape

 

 

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