Sources of law

Austin said that the term ‘source of law’ has three different meanings:

1. This term refers to immediate or direct author of the law which means the sovereign in the
country.

2. This term refers to the historical document from which the body of law can be known.

3. This term refers to the causes that have brought into existence the rules that later on acquire
the force of law. E.g. Customs, judicial decision and equity etc.

Historical Jurists-

Von Savigny, Henrye Maine, Puchta etc. – This group of scholars believed that law is not made
but is formed. According to them, the foundation of law lies in the common consciousness of the
people that manifests itself in the practices, usages and customs followed by the people.
Therefore, for them, customs and usages are the sources of law.

Sociological Jurists-

This group of scholars protest against the orthodox conception of law according to which, law
emanates from a single authority in the state. They believe that law is taken from many sources
and not just one.

Ehlrich said, that at any given point of time, the centre of gravity of legal development lies not in
legislation, not in science nor in judicial decisions but in the society itself.

Duguit believed that law is not derived from any single source as the basis of law is public
service. There need not be any specific authority in a society that has the sole authority to make
laws.

Salmond has done his own classification of sources of law:

1. Formal Sources- A Formal Source is as that from which rule of law derives its force and
validity. The formal source of law is the will of the state as manifested in statutes or decisions of
the court and the authority of law proceeds from that.

2. Material Sources- Material Sources are those from which is derived the matter though not the
validity of law and the matter of law may be drawn from all kind of material sources.

a. Historical Sources- Historical Sources are rules that are subsequently turned into legal
principles. Such source are first found in an Unauthoritative form. Usually, such principles are
not allowed by the courts as a matter of right. They operate indirectly and in a mediatory
manner. Some of the historical sources of law are:

i. Unauthoritative Writings

ii. Legal Sources- Legal Sources are instruments or organs of the state by which legal rules are
created for e.g. legislation and custom. They are authoritative in nature and are followed by the
courts. They are the gates through which new principles find admittance into the realm of law.
Some of the Legal Sources are:

a. Legislations

b. Precedent

c. Customary Law

d. Conventional Law- Treatises etc.

Charles Allen said that Salmond has attached inadequate attention to historical sources.
According to him, historical sources are the most important source of law.

Keeton said that state is the organization that enforces the law. Therefore, technically State
cannot be considered as a source of law. However, according to Salmond, a statute is a legal
source which must be recognized. Writings of scholars such Bentham cannot be considered as
a source of law since such writings do not have any legal backing and authority.

Legal sources of English Law- There are two established sources of English Law:

1. Enacted Law having its source in legislation- This consists of statutory law. A Legislation is
the act of making of law by formal and express declaration of new rules by some authority in the
body politic which is recognized as adequate for that purpose.

2. Case Law having source in Judicial Precedence- It consists of common law that we usually
read in judgments and law reporters. Precedent could also be considered as a source of law as
a precedent is made by recognition and application of new rules by the courts whilst
administering justice. Thus, Case Laws are developed by the courts whereas enacted laws
come into the court ab extra.

3. Juristic Law- Professional opinion of experts or eminent jurists. These are also sources of
law. Though, they are not much accepted.

Sources of Law: Are they sources of Right too?

A Legal Right means a fact that is legally constitutive of a right. A Right is the de facto
antecedent of a legal right in the same way as a source of law is de facto antecedent of a legal
principle.

Legislation- ‘Legis’ means law and ‘latum’ means making. Let us understand how various jurists
have defined legislation.

1. Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.

2. Horace Gray- Legislation means the forma utterance of the legislative organs of the society.

3. John Austin- There can be no law without a legislative act.

Analytical Positivist School of Thought- This school believes that typical law is a statute and
legislation is the normal source of law making. The majority of exponents of this school do not
approve that the courts also can formulate law. They do not admit the claim of customs and
traditions as a source of law. Thus, they regard only legislation as the source of law.

Historical School of Thought- This group of gentlemen believe that Legislation is the least
creative of the sources of law. Legislative purpose of any legislation is to give better form and
effectuate the customs and traditions that are spontaneously developed by the people. Thus,
they do not regard legislation as source of law.

Types of Legislation

1. Supreme Legislation- A Supreme or a Superior Legislation is that which proceeds from the
sovereign power of the state. It cannot be repealed, annulled or controlled by any other
legislative authority.

2. Subordinate Legislation- It is that which proceeds from any authority other than the sovereign
power and is dependant for its continual existence and validity on some superior authority.

Delegated Legislation- This is a type of subordinate legislation. It is well-known that the main
function of the executive is to enforce the law. In case of Delegated Legislation, executive
frames the provisions of law. This is also known as executive legislation. The executive makes
laws in the form of orders, by laws etc.

Sub-Delegation of Power to make laws is also a case in Indian Legal system. In India, the
power to make subordinate legislation is usually derived from existing enabling acts. It is
fundamental that the delegate on whom such power is conferred has to act within the limits of
the enabling act.

The main purpose of such a legislation is to supplant and not to supplement the law. Its main
justification is that sometimes legislature does not foresee the difficulties that might come after
enacting a law. Therefore, Delegated Legislation fills in those gaps that are not seen while
formulation of the enabling act. Delegated Legislation gives flexibility to law and there is ample
scope for adjustment in the light of experiences gained during the working of legislation.

Controls over Delegated Legislation

Direct Forms of Control

1. Parliamentary Control

2. Parliamentary Supervision

Indirect Forms of Control

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so, the
rules framed do not get repealed or abrogated but they surely become dead letter as they
become ultra vires and no responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting
power to a trustworthy body of persons.
3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It can be
complemented by antecedent publicity of the Delegated Laws.

It is advisable that in matters of technical nature, opinion of experts must be taken. It will
definitely minimize the dangers of enacting a vague legislation.

Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts, High
Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd.
v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority, then
the weight should be given on the basis of rational and logical reasoning and we should not
bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger
bench should be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the courts.
However, after 19th century, courts started to believe that precedence not only has great
authority but must be followed in certain circumstances. William Searle Holdsworth supported
the pre-19th century meaning of the precedence. However, Goodheart supported the post-19th
century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the
law, but they ‘declare’ what the law has always been. This theory believes that the Principles of
Equity have their origin in either customs or legislation. However, critics of this theory say that
most of the Principles of Equity have been made by the judges and hence, declaratory theory
fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or not.
They are classified as Legal Sources.

2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent. There
are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority judgment.

7. Erroneous Decision

Custom as a Source of Law

Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by the
courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.

3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law which
got its content from habits of popular action recognized by courts, or from habits of judicial
decision, or from traditional modes of juristic thinking, was merely an expression of the jural
ideas of the people, of a people’s conviction of right – of its ideas of right and of rightful social
control.

However, it is the Greek historical School that is considered as the innovator of custom as
source of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human association
becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

Ingredients of Custom

1. Antiquity
2. Continuous in nature.

3. Peaceful Enjoyment

4. Obligatory Force

5. Certainty

6. Consistency

7. Reasonableness