13

CUSTOM AS A SOURCES OF
The term 'sources of LAW
various law' has
ways and it has been used been interpreted by different writers
in
to
distinguish
each
between its various
different senses. It is,
therefore,
in
nmeanings and determine the necessary
Sources of Law-Meaning premises of

In the Indian context,

the
two senses. In the first, expression "sources of law" is
head of all law; while according to Hindu generally used in
from where the law according to modern scriptures-duty is the
foundation
law' means where one emanates. In the jurisprudence,
second sense, the
it is the
sovereign
records land or books ormust resort to get law. In other expression 'sources
the evidence of
of at
reports etc. words,
learning or knowing law. In the have to be looked
into for the
of
Sruti, the Smriti and latter sense, the purpose of
the sources of Hindu law
immemorial are the
'reasoning-which is law, is customs by which the
divine
evidenced. In fact, Sruti contains
lawyer's law. It comprises four will or the

which deal Vedas, six very little of

with Vedangas and the Upanishads
religious rites, true knowledge
however, a few
passages containing incidental and liberation. There
are,
Smritis are the collusion to rule
Yajnavalkya deal principal sources of of law. The a

with religious rites, lawyer's law. The Code of Manu and

and liberation. The Code of positive law,
Narada exclusively dealspenance, true knowledge
In the modern
with positive law alone.
two senses.
jurisprudence also the term "sources of law" is
Sometimes it is used in the sense of State
used broadly in
which the law derives its force and or the sovereign frpm
the causes of law
or the contents or
validity.
In other sense, it is used
to denote
matter of which law is
Allen asserts that the true sources of law are composed. Dr. CK.
of conduct acquire the character of law agencies through which the rules
and bunding force because of their
certainty, uniformity
irom
According
to Fuller, the "source of law" includes the material
which the Judge obtains rules for deciding cases. In
this sense, it includes
statutes, judicial precedents, customs opinion of legal experts, jurists ep2
According to natural law philosophers, the "law" has a divine origin. It is
a
gift of God contained in Holy Books. As stated earlier, Vedas and Smritis are
soupees of law
NHe
according to Hindu Jurisprudence as they have originated from
Sages. Likewise, Quran is the word of God and therefore, a positive source
of Muslim law. The hadis contains the precepts of the Prophet as inspired and
Suggested by God.
E .Holland also supports the view that the term "sources of law" has
Deen used in a variety of senses. Sometimes it denotes the material from which

Justice Panda, KB. Sanatan Diharmua ani Larw. (1977) p 23

uller L Aatomy of the Late. p. 69
279)
 280 JURISPRUDENCE AND LEGAL THEORY

all knowledge of law is obtained. This may include statute

boóks, treatises or
law-reports etc. In another sense, the "source of law" denotes the ultimate
authority which gives law its binding force. Such authority is undoubtedly the
State which is sovereign. Sometimes the term is used to denote the
causes
which were
responsible to bring
into existence the rules which
acquired the force of law e.g., religion, custom etc. and sometimes theeventually
agency of
organ through which State creates law or grants legal sanction to existing rules
is also called the source of
law, e. g., legislation etc.°
John Austin, the exponent of analytical school of
three different jurisprudence refers to
meanings of the term "sources of law". Firstly, the term refers to
the authority from whence the law
emanates, namely, the sovereign. Secondly,
it may refer to historical
material from which the existence of rules of law
may be known, eg., the Code of Manu, Commentaries of Yajnavalkya, Code of
Sustinian. Thirdly, the term sometimes refers to the causes which
of society the force of law e. give the rules
g., legislation, custom, equity, law etc.
Austin's three meanings of "'sources of law" may include Thus
(ii) historical documents; and (iii) (i) direct authority
causes.*
According to Allen, sources of law are those agencies by which rules of
human conduct acquire the
uniform and above character of law by becoming objectively definite,
all, compulsory.
The sociological view, however, makes a
view about law and departure from the orthodox
suggests that law is derived from many sources and
develops in society itself. Therefore, there is no specific authority which has
power to make law but it takes shape as the
pointed out that law is not derived from any singlesociety evolves. Duguit rightly
source and the real basis of
law is public service.
as well as
Expressing a similar view Ehrlich writes, "at
present
any other time, the centre of gravity of
not in legislation, not in legal development lies
itself".
juristic science not in judicial decisions, but in
society
Salmond's View
Salmond preferred to emphasise on two main sources of
(i) material source, and (ii) formal source of law. The law. He calls them
further sub-divided into legal sources and material sources are
formal source of law as that from which a historical sources. He defined a
rule of law derives its force and
validity. He, however, clarified that from the material
derives only its matter and not the source, the law
manifested in the Statute Book validity. Thus the will of the State
as
law while
or decisions of Courts are the formal source of
legislation, customs, agreements and professional
etc. are the material sources of law. opinion of jurists
Salmond's classification of
can be briefly summarised sources of law
as under
3 Holland T.E., Elements of
4. Austin: Jurisprudence, Vol.Jurisprudence,
I, p. 508.
(13th ed.) p 55.
5. Allen C.K.: Law in the
Making, 85.
p.
 CUSTOM ASA SURCES OF LAW
281
Sources of Law

Material Sources
Formal Sources

Legal Sources
(These are Historical Sources
authoritative) (These are
unauthoritative,
8.writings of
eminent jurists,
foreign judgments etc)
Legislation Precedent
Enacted Law) (Case Law) Customary
Law Conventional
Law (based on
(based on agreements,
customs) eg, local laws,
In addition treaties etc.)
to the historical and
about literary source of law
legal sources of law, Salmond also talks
which refers to
of knowledge of law. It consists of all text original and authoritative sources
from where we trace any rule of law. books, oommentaries and law
reports
Of the two kinds of material
sources, namely, legal and historical, the first
s authoritative while the second is
unauthoritative. To quote a concrete
example, an Act passed by the Legislature becomes a law which has a
law. On the other hand, binding
force therefore, it is a legal material source of
of eminent jurists have
only a persuasive value and are not opinions
courts. Therefore, they are a historical binding upon the
material source which are
unauthoritative. They are sources in fact but
They operate indirectly and mediately. Writingsthey
have no legal
recognition.
of eminent jurists and
judgments are also included in the category of historical sources offoreign law.
Historical sources may become
incorporated as a part of law.
legal if they are
recognised by law or

Salmond further pointed out that historical sources

pertain to legal history
and not to legal theory. It is for this reason that Salmond has discussed only
egal and not the material sources and even among the
nCuded
legal sources he has
only legislation, precedent and custom and not others.
The above classification of sources of law into formal and material sourves
ds been criticised by some jurists, notably, Allen and Keeton. Dr. Allen
oected to Salmond's assertion that "legal sources are the only gates through
n e w principles can find entrance into the law and historical sourdes
khperate only mediately and indirectly...they are merely links in the chain of
only
hich ultimat link must be some legal source to which law is directly
aultimate
lact
e d , H e alleged that Salmond has undermined the importance of

PJ. Fitzgerald : Salmond on Jurisprudence, (12th ed.) p. 112.

282
JURISPRUDENCE AND LEGAI.
THEORY
historical source. Kecton
has also criticised Salmond for
source of law which in modern time is the his views on
State, In his
formal
ve termed as law
in modern technical sense view, the State cannot
because it is
enforce law. In real sense it is
the public only an agency to
through legislature which gives law its opinion which finds
expressioon
It seems that
authority and force.
perhaps PJ. Fitzgerald, the editor of Salmond's
was himself
not satisfied with the
into formal and Salmond's classification of sources Jurisprudence
material and this is why in the twelfth of law
omitted this classification edition of the Book
and discussed he
of law the only legal and historical source
G. W. Paton,
and material is
however, considers that the division of sources into
usually accepted. But Dr. formal
distinguishthe legal and historical Glanville Williams prefers to
sources of law; the
legislation and precedent while the historical legal sources being
source is the actual
rule adopted origin of the
by the Court in arriving at a decision.
Keeton's view
According to Keeton, the sources of law can be
categories, namely, (i) Binding sources of Law; andclassified into two broad
Binding sources may further be classified as (2) Persuasive sources.
precedents, and (ii) Customary law. Likewise, (i) Legislation, (ii) Judicial
(i) Principles of equity,persuasive
of three kinds, sources may also be
namely, (ii) Professional opinions, (ii)
Writings of jurists
etc. He asserts that in modern
law is the State, but it time, the only formal source of
correct to consider it as a being an
organisation which enforces law, it is not
source of law in real
of the term. în his
persuasive sources are useful only when there issense opinion,
no
binding source of law.
Legal Sources of English Law
(The legal sources of law may not be
systems. In other necessarily
words, different legal systems
the
in all the same
legal
law. Even the may have different sources of
legal
times. For example, the
same
system may have different sources
different of law at
(ii) Commentaries &
Hindu jurisprudence recognised: (1) Dharmashastras,
law
Digests, and (3) Custom as three legal sources of Hindu
prior to codification of Hindu law but after its
enacted codification in 1955-56,
Hindu
law and
precedents have assumed
Hindu law) So far importance as sources of
English law is concerned (i) legislation,
subordinate, (ii) case law or judicial both supreme and
agreements or the conventional law, have precedent, (ii) custom, and (iv)
been recognised as sources of law.
However, English jurisprudence does not
source recognise literary source as legal
The English Corpus Juris is divisible into two parts,
or
legislation, and (ii) precedent having its source in namely, (1) statute law
case law. judicial decisions,
i.e., the

There is no written Constitution in U.K. Had

source of law.
it been so, it would have undoubtediy been a
 CUSTOM AS A SOURCES OF LAW
283
Legislation is the
making of law by formal and express declaration
nufes by some
authority in the State which is recognised the of new
competent tor that
purpose. A
precedent, on the other
by courts of law as
application of new rules by the courts hand, making of law by
is
justice. This in other themselves in the
that enacted law comes administration
of
extra whereas
words, means
into the courts ab
case law is developed within
the courts themselves.
In
addition to legislation and
and coventional law as two other precedent, English law also recognises custom
requirements laid down by law forlegaltheir recognition,
sources of law. When custom
fulfils the
rules of conduct which are called the they become obligatory
the other hand, is formed out of customary laws. The conventional law, on
addition to or in derogation ofagreement
between tie
the general law of theparties
and may be in
autonomic law, having its source in subordinate land. To illustrate,
such as universities, legislation of private bodies,
municipalities
which is in force in a particular
etc, is conventional law. The local law
part of State's territory also comes under this
category
From the above discussion it may be inferred that
recogrises four main sources of law. They are- English legal system
(1) Custom which includes
customary law.
(2) Legislation which consists of enacted law.
(3) Precedent comprising case law or judicial decisions.
(4) Conventions based on agreements.
Inter-relation between Sources of Law and Sources of Right
It is significant to note that a source of law may also serve as a source of
right. A source of law is some fact which is legally constitutive of right. An Act
of Parliament is a typical source of law, but there are several Acts which are
also sources of rights, e.g., The Consumers Protection Act, 1986, the Bhopal Gas
Leak Disaster (Processing of Claims) Act, 1985, the Minimum Wages Act, 1948,
the Protection of Human Rights Act, 1993 etc. It must, however, be noted that
all sources of law are not necessarily the sources of right. Thus a judicial
decision is a source of law as regards the world at large, but it is only a source of
the successful party. The decision of an inferior court is not
a
right as regards
SOurce of law but it is certainly a source of right.

Sources of Law: Indian Perspective

Muslims who constituted the
Prior to the British rule in India, Hindus and
were governed by
their personal laws, namely,
dor population of this country to
Mohammadan law for Muslims. It is interesting
indu law for Hindus and
of law, i. e., (1) the Sruti,
four sources one's own
that original Hindu law recognised and (iv) conscience.
Smritis, (ii) the conduct of the virtuous,
ne receded into the background.
COurse of time, the last two

8. Manu, 11 and 12.

 284 JURISPRUDENCE AND LEGAL THEORY

The primary sources of Mohammedan law were also more or less simila.
namely, (1) Quran, (2) Sunnat and Ahadis which meant traditions, (3) lima
(consensus of opinion), (4) Kiyas, i. e., analogical deductions. Both these la
claimed transcendental origin and recognised King as a magisterial official.
The Sruti as a source of Hindu law and the Quran as a source of Mohammedan
law are supposed to be a direct revelation from God but the language of both is
of human origin. The two, however, differ on one major point-while
Mohammedan law claims human being, namely, Prophet Mohammad as its
founder, no such claim is made by Hindu law.
With the introduction of English common law in India, the English legal
sources of law replaced the earlier sources of indigenous laws and they have
now become an integral part of the modern Indian jurisprudence which owes its
origin the British legal system.
to
In the modern legal
systems legislation occupies a prominent place as a
ource ot law since most of the
laws are made by the Union or the State
legislatures. The role of custom as a source of law is diminishing day by day as
the societies
changing fast adopting new ways of life and living. The role of
are
precedent as a source of law is also limited because the Judges have to take the
help of many other sources, such as juristic writings, foreign decisions, moral
and social values of the time and
place in deciding cases and handing down
Judgments.
Custom as a Source of Law
Custom occupies an
important place in
almost all the societies. In fact, it is one of the regulation
of human conduct in
oldest sources of law-making. A
custom may be defined as
a continuing course of conduct which by the
acquiescence or express approval of the community observing it, has come to be
regarded as fixing the norm of conduct for members of society.° However,
importance of custom as a source of law continuously diminishes as the the
system grows. The reason being that with the legal
emergence and growing power of
theState, custom is largely superseded by legislation as a source of law.
According Manu, the roots of custom as a source of law in ancient India
to
may be enumerated under four distinct stages,
namely,
(i) Revelation, or the utterances and
Munis);
of thoughts inspired seers (Rishi-
(ii) The utterances of revered sages, handed down words of
generation to generation (shruti); by mouth from

(iii) The approved and immemorial

usages of the people; and
(iv) That which satisfies sense of
acceptable to reason.
equity and conscience good and

9.
Dias &Hughes: Jurisprudence, (1957) p. 34.
10 Usage may be defined as
spontaneous evolution by popular mind of ruies
existence and general acceptance of whichis by their
it marks the transition between morality andproved
law and usagecustomary observance
when continuea 10r
time immemorial assumes
the form of custom.