Sources of Law

Sources of Law 

A source of law means either the manufacture or origin of a law or the ability to impart a rule or norm the quality of law. The term “source” is used to connote those agencies by which rules of conduct acquire the character of law by becoming objectively defined, uniform, and compulsory. 

Austin’s three meanings of “sources of law” include: (i) Direct authority (viz. sovereign); (ii) Historical documents (viz. codes); and, (iii) Causes which give the rules of society the force of law viz. legislation, custom, etc. According to the sociological school, there is no specific authority which has power to make law but it takes its shape as the society evolves. 

Salmond classified the sources of law into two categories: 

(a) Formal sources – These are those sources which are recognised as such by the law itself and are authoritative. From these sources, a rule of law derives its force and validity. Thus, the will of the State as manifested in the Constitution, Statutes, Court’s decision are the formal sources of law. 

(b) Material sources – From these sources, a rule of law derives the matter but not the validity. The material sources are further divided into two types: Legal and Historical. Unlike legal sources which are sources not only in fact but also in law and are authoritative, the historical sources are sources in fact only and are unauthoritative. The decision of the court is a legal source while the ultimate materials on which it is based are historical sources. 

Legal sources operate directly and immediately, while historical sources indirectly and mediately. Examples of “legal sources” are: Legislation (enacted) Precedent (case law), Customs, and Conventional law (based on agreement). 

Allen objected to Salmond’s assertion that “legal sources are the only gates through which new principles can find entrance into the law and historical sources operate only mediately tmd indirectly …they are merely links in the in of which ultimate link must be some legal source to which law is directly attached. He alleged that Salmond has undermined the importance of historical sources 

Keeton criticised Salmond for his views on the formal source of law, which in modern times is the State. In his view, the State cannot be termed as law in the modern technical sense because it is only an agency to enforce law. According to Keeton, the sources of law can be classified into two broad categories: (1) Binding sources of law e.g. legislation, precedent, and customs; and (2) Persuasive sources e.g. equity principles, professional opinions, and writings of jurists.

Sources of law differ from system to system and society to society. Thus, while in the common law system. Constitution, legislation, precedents and custom are recognised as the legal sources of law, in civil law countries, legislation, customary law and treaties are often declared to be the only sources of law. Since in India, we have a common law system, the Constitution, legislation, precedents and customs are our legal sources of law. In some matters, personal law (Koran, Smrities, etc.) is also a source of law.