What are the sources of law ?

(1) Introduction:

The concept of law is present at the heart of the legal system. Law is not static. It has been developing since its origin. Different factors have been contributing to its development since its origin. These factors are termed as sources of law. As the term “law” has several meanings legal experts approach the source of law from various angels.

(2) Sources of law:

Following are sources of law.

  • (i) Formal source.
  • (ii) Material source.

(i) Formal Source:

A formal source is that form which a rule of law derives its forces and validity. It is that source from which the authority of the law proceeds.

(i) Material Source:

Material source is that source from which is derived the matter and not the validity of the law. The material source supplies the substance of the rule to which the formal source gives the force and nature of law.

The material sources are many and they are divisible in to following two classes.

  • (a) Historical sources.
  • (b) Legal sources.

(a) Historical sources:

Historical sources are those sources, which are destitute of legal recognition. Actually these sources are those rules, which are initially found in an unauthoritative form and these rules are subsequently turned into legal principles. Courts do not allow such principles as matter of right. Such rules operate indirectly and in a mediatory manner. Some of the examples of historical sources are juristic writings, literary work and foreign decisions.

(b) Legal sources:

Legal sources are those sources, which are recognized by law. Following are legal sources.

  • (b-i) Legislation.
  • (b-ii) Judicial precedent.
  • (b-iii) Custom.
  • (b-iv) Conventional law.

 (b-i) Legislation:

The term legislation is derived from the two Latin words. These Latin words are legis and latum, legis means “law” and latum means to “make” or “set”. Therefore the word legislation means the making of law. In modern times, legislation is considered as the most important source of law. The importance of legislation as a source of law can be measured from the fact that it is backed by the authority of the sovereign; and it is directly enacted and recognized by the state.

 (b-ii) Judicial precedent:

In simple words judicial precedent refers to previously decided judgments, which are of the Superior Courts. Such as High Courts and Supreme Court and which subordinate courts are bound to follow. Although judicial precedent is not as modern as legislation and it is not as old as custom. Yet it is an important source of law. In most of the developed legal systems, citizens enjoy certain rights. Judiciary is to adjudicate upon these rights. Judiciary performs this duty through interpretation of law. By doing so, judiciary lays down rules and principles, which are considered binding on lower courts.

(b-iii) Custom:

Custom means that rule, which must be observed continuously for a very long time without any interruption and which must be supported by the opinion of the general public and morality. Jurists have been divided regarding status of custom as source of law.

  • (x) Autin view
  • (y) Savigny’s view

(x) Austin view:

He has opposed custom as law because it do not originate from the will of the sovereign.

(y) Savigny’s view:

According to him, the real source of law is the will of the people and not will of the sovereign. The will of the people has always been reflected in the custom and traditions of the society. Therefore custom is a main source of law.

(b-iv) Conventional law:

Conventional law is a species of special law and has its source in the agreement of those, who are subject to it. Agreement is a law for those, who make it, and it is binding for them.

(3) Conclusion:

It can be stated that we cannot deduce the nature of source of law from the nature of law. It is possible that they differ in different systems and even in the same system at different periods of its growth. As we have discussed formal and Maternal sources of law there can be other sources of law such as equity, religion and faith. However legislation can be considered as the most important source of law in all legal systems because it has source in theory and its existence is essentially de jure.

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