Module 2.
SOURCES OF LAW
Laws
Written Unwritten
Laws
FORMAL MATERIAL
Sources from which law Sources from which law derives
derives its force and not its validity but the matter of
validity which it is composed
Simply put, Formal Sources is based on the formalities through which the law passes to
assume the final shape in which it is today.
Formal Sources are equally important sources of law as they help to regulate and validate
the material sources of law.
Simply put, Material Sources of law are those which give the matter or content of a
principal of law; They deal with the substance, elements or constituent material of
law. Material sources of law tell us what is contained in the law.
MATERIAL
Will of the State SOURCES
FORMAL
SOURCES
Manifested in
Statues Historical Legal
Material
Sources
Historical Legal
No Legal
History Unauthoritative Not Binding
Recognition
Juristic
They operate
Opinions/ Legal
indirectly
Writings
Religion and
Morality
Material
Sources
Historical Legal
LEGISLATION
PRECEDENT
CUSTOM
LEGISLATION
- The word Legislation is derived from two Latin words i.e., ‘legis’ and ‘latum’.
o Legis – Law
o Latum – To make
- It means the making of law or declaration of legal rules by competent
authority.
- Legislation
1. Supreme Legislation: Adopted by Supreme Authority of the State. For
Example: Parliament or State Legislature
2. Subordinate Legislation: Dependent for its continued existence and
validity on some superior or supreme authority. For Example: Delegated
Legislation, Judicial Legislation
PRECEDENTS
• Precedents are Judicial Decisions to which authority has been attached.
• The reason why a precedent is recognised is that a judicial decision is presumed
to be correct.
• Under this rule, a principle of law which has become settled by a series of
decisions is generally binding on Courts and should be followed in similar cases.
• The doctrine has been recognised by the Constitution of India.
• Article 141 provides that the law declared by Supreme Court shall be binding
on all Courts in India.
• The Supreme Court is free to depart from its previous decisions if valid
reasons exist for doing so.
In countries like Germany, France, Italy, judicial precedents have only
instructive value and are not authoritative.
Kinds of Precedents:
1. Authoritative Precedents: An authoritative precedent is one that has a
binding force and the Judge must follow it whether he approves it or not.
Authoritative precedents are the decisions of the superior court of justice
which are binding on subordinate courts.
1. Persuasive Precedents: They are the ones which the Judges are under no
obligation to follow but which they may take into considerations. For
example, Foreign judgments.
CUSTOM
When the same thing is done again and again in a particular way, it assumes
the form of a custom.
It is a rule which has existed from time immemorial and obtained the force
of law in a particular society.
It is observed court of conduct.
Customary Law is constituted by customs which fulfil the requirements laid
down by law as the condition for their recognition as obligatory rules of
conduct.
Requisites of VALID CUSTOM:
1. Antiquity: Custom must be in existence from time immemorial.
2. Continuity: Should have been continuously in existence from time
immemorial. Example: Saptapadi
3. Reasonable: It must be useful and convenient to society.
4. Certainty: If a custom is vague or ambiguous, it cannot be considered as a
valid source of law.
5. Consistency: Difference or inconsistence in custom will amount to different
rule of conduct for a given situation.
6. Peaceful Enjoyment: enjoyed peacefully without any dispute in a
court of law or otherwise
7. Not opposed to public morality: All those customs and practices
which are opposed to public morality are illegal.
8. Conformity with Statute Law: All customs which are opposed to an
existing legislation will be treated as invalid customs.
Reference (ask the class): Jalli-Kattu
Equity, Justice and Good Conscience (?)
