Meaning :-
Sources of law means the state or
sovereign from which law derives its force or
validity.Sometimes it used to denote the causes of law or
the matter of which law is composed.
According to Austin there are three meaning of the term
“Sources of law”. In the first place , the term refers to the
immediate or direct author of the law which means the
sovereign in the country.Secondly,the term refers to the
historical document from which the body of law can be
known . Thirdly,the term refers to the causes which have
brought into existence the rules which later on acquire
the force of law.
According to Salmond,there are two main sources of law
,one formal and another is material.
Material sources of law are those sources from which the
law gets its content or matter, but not its validity. There
are two types of material sources which are legal sources
and historical sources.
Legal sources
Legal sources are the instruments used by the
state which create legal rules. They are
authoritative in nature and followed by courts of
law. These are the sources or instruments that
permit newer legal principles to be created.
According to Salmond, legal sources of English law
can be further classified into four categories-
Legislation,
Precedent,
Customary law, and
Conventional law.
Historical sources
Historical sources are sources that influence the
development of law without giving effect to its
validity or authority. These sources influence legal
rules indirectly. The difference between legal and
historical sources is that all laws have a historical
source but they may or may not have a legal
source. Decisions given by foreign courts serve as
an example for this kind of source.
Binding sources
Judges are bound to apply such sources of law in
cases. Examples of such sources are statutes or
legislation, judicial precedents, and customs.
Legislation
Legislation refers to the rules or laws enacted by
the legislative organ of the government. It is one
of the most important sources of law in
jurisprudence. The word legislation is derived from
the words legis and latum, where legis means law
and latum means making.
Types of legislation
According to Salmond, legislation can be classified
into two types- Supreme and Subordinate.
1.Supreme legislation
Legislation is said to be supreme when it is
enacted by a supreme or sovereign law-making
body. The body must be powerful to the extent
that the rules or laws enacted by it cannot be
annulled or modified by another body. Indian
Parliament cannot be said to be a sovereign law-
making body as the laws passed by the parliament
can be challenged in the courts. The British
Parliament, on the other hand, can be said to be a
sovereign law-making body since the validity of
laws passed by it cannot be challenged in any
court.
2.Subordinate legislation
Legislation enacted by a subordinate law-making
body is said to be subordinate legislation. The
subordinate body must have derived its law-
making authority from a sovereign law-making
body. It is subject to the control of the supreme
legislative body. The following are the different
kinds of subordinate legislation:
Executive legislation: This is a form of
subordinate legislation where the executive is
granted or conferred certain rule-making
powers in order to carry out the intentions of
the legislature.
Colonial legislation: Many territories across
the globe were colonised by Britain and such
territories were called colonies. The
legislation passed by the legislature of such
colonies was subject to the control of the
British Parliament.
Judicial legislation: Courts also have a role
in enacting laws that aid in regulating the
internal affairs and functioning of courts.
Municipal legislation: Municipal authorities
also possess the law-making power as they
enact bye-laws.
Autonomous legislation: Another kind of
legislation is autonomous legislation, which is
concerned with bodies like universities,
corporations, clubs, etc.
Delegated legislation: Sometimes
legislative powers may be delegated to
certain bodies by the parliament through
principal legislation. A principal act may
create subsidiary legislation that can make
laws as provided in the principal legislation.
Precedent
Judicial precedents refer to the decisions given by
courts in different cases. A judicial decision has a
legal principle that is binding on the subordinate
courts. Once a court has delivered a judgement on
a particular case, the courts subordinate to it must
abide by the precedent while deciding on similar
cases with similar facts. Some of the most
influential judicial precedents in India are the
following:
1.Kesavananda Bharati v. the State of
Kerala (1973): This case is what introduced
the concept of the basic structure doctrine in
India, protecting the fundamental features of
the Indian Constitution from being removed.
2.Gian Kaur v. the State of Punjab (1996): This
judgement affirmed that the right to die does
not come within the scope of Article 21 of
the Indian Constitution. The court affirmed
that every person has the right to die with
dignity. The court also stated that the right
to die in a dignified manner is not the same
as the right to die in an unnatural way.
3.Maneka Gandhi v. the Union of India (1978):
The court held Section 10(3)(c) of
the Passports Act, 1967 as void since it
violated Article 14 and 21 of the Indian
Constitution.
4.Indra Sawhney v. the Union of India (1992):
This judgement set a ceiling of 50% for
reservation of backward classes. It also held
that the criteria of classifying groups as
backward classes cannot be limited to
economic backwardness.
Custom
Custom refers to the code of conduct that has the
express approval of the community that observes
it. In primitive societies, there were no institutions
that acted as authority over the people. This led to
people organising themselves to form cohesive
groups in order to maintain fairness, equality, and
liberty. They started developing rules with
coordinated efforts to make decisions. They
eventually started recognising the traditions and
rituals practised by the community routinely and
formed a systematised form of social regulation. In
India, laws relating to marriage and divorce are
mostly developed from customs followed by
different religious communities. Additionally,
several communities belonging to the Scheduled
Tribes category have their own customs related to
marriage. As a result of that Section 2(2) of
the Hindu Marriage Act, 1955 has exempted
Scheduled Tribes from the application of this Act.
Requisites of a valid custom
1.Reasonability: The custom must be
reasonable or practical and must conform
with the basic morality prevailing in the
modern-day society.
2.Antiquity: It must have been practised for
time immemorial.
3.Certainty: The custom must be clear and
unambiguous on how it should be practised.
4.Conformity with statutes: No custom must
go against the law of the land.
5.Continuity in practice: Not only the custom
must be practised for time immemorial, but it
should also be practised without
interruption.
6.Must not be in opposition to public
policy: The custom must adhere to the
public policy of the state.
7.Must be general or universal: There must
be unanimity in the opinion of the community
or place in which it is practised. Hence, it
should be universal or general in its
application.
Conclusion
To conclude, sources of law in jurisprudence can
be classified on the basis of several grounds. But
the most notable or common classification divides
it into legislation, precedent, and custom.
Precedent refers to the previous judicial decisions.
The legislation refers to the statutory rules enacted
by the legislature. Custom refers to the age-old
practises of a community that has solidified its
presence so much that it becomes the law. Though
legislation seems to be the agency through which
we get laws, it is just the primary source. Many
laws that we have are a reflection of what we as a
society have followed for generations. Also, many
cases show how sometimes the law of the land is
inadequate or incapable of predicting what issues
could arise in subsequent disputes. This calls for
the judiciary to elaborate or interpret the law of
the land, setting judicial precedents for several
issues.
