Sources Of Law

Authored by Harshita Saluja First year law student

Laws are a set of rules and regulations which are made in order to control the behavior of the citizens of a country.

In general sense, the sources from where the laws are derived are known as sources of law. Various Jurists have tried to define sources of law and every one of them has defined it differently. Jurists of analytical school says that law has been derived from a sovereign authority while historical school says that god has originated the laws.[1]

According to K. Allen, “Sources of law are agencies through which the rules of conduct acquire the character of law by becoming definite, uniform and compulsory”.

According to Oppenheim, “Source of law is name for a historical fact out of which the rules of conduct came into existence and acquire legal force”.

According to Keeton, “Source means the material out of which law is eventually fashioned, through the activity of judges”.

In this article we are going to talk about three sources of law which are as follows.

  1. Customs
  2. Judicial Precedents
  3. Legislation

Customs as a source of law[2]

Customs can be defined as old traditions which are being followed by people since a very long time without breaking its continuity. For example, Saptpadi is the most important custom which is followed since a long time in Hindu Marriages.

 Types of customs:

  1. Customs which do not have any binding obligation
  2. Customs which have legally binding obligation
  1. Customs which do not have any binding obligation

The law does not put any obligation on us to follow such customs but society where we live puts such obligations. For example, the society puts an obligation on us about how we have to dress, how we have to behave etc.

These customs may not be binding but still they hold a great importance in society and needs to be followed for proper functioning of the society. These customs are known as ‘social customs’.

As these customs are not set by law hence there is no mandate to follow them but people follow them out of social pressure or fear that if they won’t follow then the society will outcast them.

  • Customs which have legally binding obligation

These are those customs which are made obligatory by law. For example, how a property would be transferred, commitment of marriage etc.

Every citizen is obliged to follow these customs otherwise they may have to pay high penalties.

It can be categorized in two parts:

  1. Legal customs

They are those rules which are to be followed strictly by every citizen and breach of which can lead to punishment.

  • Conventional customs

These are those practices which are turned into customs because they are being followed since a long time.

There are a few essential elements for a custom to be turned into a law which are as follows:

  1. The customs should be followed from a long time, beyond human memory.
  2. They should be continuously followed without any gaps in between.
  3. They should be consistent, which means that those customs which don’t follow the principles of justice, fairness and liberty cannot be turned into law. such customs shouldn’t be biased to a particular gender or a group of persons, religion etc.
  4. A custom should be moral and should not oppose public policy. For example, Satipratha was against public policy and was immoral, hence, it was not converted into a full-fledged law. 

Precedents as a source of law

Precedents can be defined as an action or situation which has earlier been decided in court and its judgment can be used for solving similar cases.

According to Gray, “precedents cover everything said or done, which furnishes a rule for subsequent practice”.

According to Salmond, “In a loose sense, it includes merely reported case law which may be cited and followed by courts”.

According to Bentham, “Precedents are Judge made laws”. 

There are 4 types of precedents[3] :

  1. Absolutely Authoritative Precedents

These are those precedents which are to be followed by the courts which are subordinate to the courts which made such precedents.

For example, Precedents of Supreme Court are to be followed by higher as well as lower courts.

  • Conditionally Authoritative Precedents

Generally, precedents are binding in nature but there can be some circumstances where it is not applicable.

For example, Supreme Court is not bound to follow its own precedents while solving a similar case.

  • Persuasive precedents

Those precedents which are the decisions taken by any inferior court in a particular case and it is the choice of courts higher to it to follow or not to follow those precedents.

  • Original precedents

When a case is decided for the very first time then the decisions taken in this case will be known as Original Precedents.

For example, for the first time a case related to transfer of property came in court.

Legislation as a source of law[4]

Legislation has been derived from two words ‘Legis’ meaning ‘Law’ and ‘Latum’ meaning ‘Making’. So, we can say that meaning of legislation is ‘making of laws’. 

According to Austin, “Legislation is the command of the sovereign authority which must be followed by the common masses backed by sanctions”.

 According to Salmond, “Legislation means laws which are made by a competent authority.”

There are 2 Kinds of Legislation[5] :

  1. Supreme Legislation

When laws are made by a superior authority then we call it as Supreme Legislation. For example, laws made by parliament. In such a case no other authority except parliament can repeal or control such legislations.

  • Subordinate Legislation

When supreme authority passes on the responsibility of making laws to any subordinate authority then we call it as subordinate legislation.

Subordinate legislations are made under the guidance of Supreme Authority.

    Conclusion

Laws can be made from various sources but there are three major sources: Customs, Judicial Precedents and Legislations. Having a clear understanding of each one of them is necessary in order to understand the true meaning of law.  


[1] Anupam Shukla, Sources of law: Meaning and classification, (Feb. 6, 2018), https://kailashafoundation.org/2018/02/06/sources-of-law/

[2] Anirudh Vats, Customs as a source of law, (Jul. 8, 2019), https://blog.ipleaders.in/customs-as-a-source-of-law/

[3] Principle Sources of Indian Law- Judicial Decisions, https://www.toppr.com/guides/business-laws/introduction-to-law/principle-sources-of-indian-law-judicial-decisions/

[4] Subodh Asthana, Legislation as a source of law, (June 6,2019), https://blog.ipleaders.in/legislation-source-law/

[5] Admin Lawnn, Legislation- types of legislation, merits, supremacy under jurisprudence, (Dec 24, 2018), https://www.lawnn.com/types-of-legislation/

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