Sources of law
SOURCES OF LAW
Sources of Law refer to the origin or foundation from which law derives its authority, validity and legal force. They explain the process through which legal rules are created, recognised, interpreted and enforced in a legal system.
In simple words, sources of law answer the question “Where does law come from?”
The concept of sources of law is an important part of jurisprudence because every legal rule must originate from a recognised authority before it becomes binding. With the development of society, different sources of law evolved. In the beginning, customs and traditions regulated human conduct, later legislation and judicial decisions became important sources of law.
The main sources of law are:
- Custom
- Judicial Precedent
- Legislation
- Conventional Law
Definitions
Salmond: “The sources of law are those from which the law derives its force and validity.”
Keeton: “A source of law is the authority from which a rule of law derives its legal force.”
Gray: “The law of the State consists of the rules which the courts recognise and enforce.”
Classification of Sources of Law
Sources of law are generally classified into Formal Sources and Material Sources.
1. Formal Sources
Formal sources are those sources which give legal authority and binding force to a rule of law. They determine why a particular rule is recognised as law and enforceable by courts.
2. Material Sources
Material sources provide the content or substance of law. They include the ideas, principles, customs and practices from which legal rules develop.
Material sources are further divided into:
(a) Historical Sources
Historical sources include ancient legal texts, writings of jurists, historical records and old judicial decisions. They help in understanding the origin and development of legal principles.
(b) Legal Sources
Legal sources are those recognised authorities from which courts derive binding rules of law.
They include:
- Custom
- Judicial Precedent
- Legislation
- Conventional Law
1. Custom as a Source of Law
Custom is considered the oldest source of law. Before the existence of organised courts and legislatures, people regulated their conduct through customs, traditions and social practices.
When a practice is followed continuously, uniformly and is accepted by society as obligatory, it gradually acquires the force of law. Thus, custom becomes a legal rule when it receives recognition from courts.
According to the Historical School of Jurisprudence, custom is the foundation of law. Savigny believed that law develops from the Volksgeist, meaning the spirit or consciousness of the people.
Essentials of Valid Custom
For a custom to become a valid source of law, it must fulfil certain conditions:
1. Antiquity - A custom must be ancient and should have existed for a long period. Long existence creates a presumption of acceptance.
2. Reasonableness - The custom must be fair, just and reasonable. Customs which are oppressive or against morality are not recognised.
3. Certainty - The custom must be clear and definite so that courts can apply it properly.
4. Continuity - The custom must be continuously followed without interruption.
5. Acceptance - The community must accept the custom as binding and obligatory.
6. Consistency with Law - The custom should not be contrary to any statute, constitutional provision or public policy.
Types of Custom
Legal Custom
Legal customs are those customs which derive their authority from law and are recognised by courts.
They are:
General Custom – Applies to the whole community or a large section of society.
Local Custom – Applies to a particular locality, region or community.
Conventional Custom
Conventional customs are those customs which become binding because parties agree to follow them. They are commonly found in commercial transactions and trade practices.
2. Judicial Precedent as a Source of Law
Judicial Precedent means the legal principle established by a court decision which is followed in future cases involving similar facts. When courts decide cases, they provide reasons and principles for their decisions. These principles guide courts in deciding future disputes. Judicial precedent is based on the doctrine of Stare Decisis, which means “to stand by decided cases.” It ensures certainty, consistency and uniformity in the administration of justice.
According to Salmond, a judicial precedent is a judicial decision which contains a principle, and this principle forms its authoritative element.
Elements of Judicial Precedent
Ratio Decidendi
Ratio Decidendi means “the reason for deciding.” It is the legal principle on which the decision of the court is based. It is the binding part of the judgment.
Obiter Dicta
Obiter Dicta means “things said by the way.” It refers to observations or opinions expressed by judges which are not necessary for deciding the case. They have persuasive value.
Types of Judicial Precedent
Authoritative Precedent
These precedents are binding on lower courts and must be followed.
Persuasive Precedent
These precedents are not binding but may influence courts because of their legal reasoning.
3. Legislation as a Source of Law
Legislation is one of the most important sources of modern law. It refers to the process of making laws by a competent legislative authority such as Parliament or State Legislature. Unlike customs which develop gradually through social practices, legislation is deliberately created by the State to regulate the conduct of people. The laws made through legislation are written, systematic and clearly defined. In modern legal systems, legislation is considered the primary source of law because it provides certainty and uniformity in the application of legal rules.
Types of Legislation
1. Supreme Legislation
Supreme legislation is made by the highest legislative authority of the State. It has the highest legal force and no other authority can override it.
Example: Laws made by Parliament in India.
2. Subordinate Legislation
Subordinate legislation refers to laws made by authorities under the powers delegated to them by the legislature.
These include rules, regulations, notifications and bye-laws made by administrative authorities.
4. Conventional Law as a Source of Law
Conventional Law refers to those rules which become binding because of the agreement, consent or understanding of parties. Unlike legal customs which are binding because of recognition by law, conventional customs derive their authority from the willingness of parties to follow them. It is commonly found in commercial and contractual relationships where certain practices are accepted and followed by parties.
Examples
- Trade usages
- Commercial practices
- Banking customs
- Contractual terms
Conventional law plays an important role in business transactions because it provides flexibility and allows parties to regulate their relationships according to accepted practices.
Conclusion
Sources of Law are the foundation of every legal system. They explain the origin, development and authority of legal rules. Custom represents the traditions and practices of society, Judicial Precedent develops law through decisions of courts, Legislation provides written and systematic rules, and Conventional Law regulates relationships through agreement and accepted practices. Together, these sources contribute to the growth, certainty and effective functioning of the legal system.
Previous Year Questions (PYQs) – Sources of Law
Long Answer Questions (10–15 Marks)
- Explain the Sources of Law and discuss their classification.
- Define Sources of Law. Explain the different sources of law in jurisprudence.
- Discuss Custom as a Source of Law. Explain the essentials of a valid custom.Distinguish between Ratio Decidendi and Obiter Dicta.
- Explain Legislation as a Source of Law. Discuss its importance in modern legal systems.
- Explain Conventional Law as a Source of Law.
Short Answer Questions (5 Marks)
- Explain Custom as a source of law.
- What are the essentials of a valid custom?
- Define Judicial Precedent.
- Explain the meaning of Stare Decisis.
- What is Ratio Decidendi?
- What is Obiter Dicta?