DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE
Legal Writing and Textbook as a Source of Law

SUBJECT
Jurisprudence - II

NAME OF THE FACULTY

Mr.Abhishek Sinha

Name of the Candidate

Akhil Krishnan
Roll No. & Semester
2013012
VI SEM

Contents:
1.
2.
3.
4.
5.
6.

INTRODUCTION..6
MEANING OF THE TERM SOURCE..8
LEGAL AND HISTORICAL SOURCES.10
JURISTIC WRITING AND TEXT BOOK AS A SOURCE OF LAW.11
VALUE AND SIGNIFICANCE OF TEXT BOOKS13
IMPORTANCE OF TEXT BOOK AS A SOURCE OF LAW IN

INTERNATIONAL LEGAL SYSTEM.15

7. CONCLUSION..18
8. BIBLIOGRAPHY..19

DECLARATION

I hereby declare that the project work entitled legal Writing and Text Book As Source Of Law
submitted to the Damodaram Sanjivayya National Law University, Visakhapatnam is a record of
an original work done by me and is my own effort and that no part has been plagiarized without
citations, under the guidance of Mr. Abhishek Sinha, and this project work has not performed the
basis for the award of any Degree or diploma/ associateship/fellowship and similar project.
Akhil Krishnan
Roll code- 2013012

CERTIFICATE
The project entitled Legal Writing and Textbook as a Source of Law" submitted to the
Damodaram Sanjivayya National Law University, Vizag for Jurisprudence as part of internal
assessment is my original work carried out under the guidance of Mr Abhishek Sinha. The
research work has not been submitted elsewhere for award of any publication or degree. The
material borrowed from other sources and incorporated in the work has been duly acknowledged.

ACKNOWLEDGEMENT
I would like to express my special appreciation and thanks to my advisor Professor Mr Abhishek
Sinha who has been a tremendous mentor for me. I would like to thank him for encouraging my
research, advice for the research has been priceless. I have taken efforts in this project. However,
it would not have been possible without the kind support and help of many individuals and
organizations. I would like to extend my sincere thanks to all of them.
I am highly indebted to press information bureau for their guidance and constant supervision as
well as for providing necessary information regarding the project and also for their support in
completing the project.
I would like to express my gratitude towards my parents for their co-operation and
encouragement which help me in completion of this project.
My thanks and appreciations also go to my faculty in developing the project and people who
have willingly helped me out with their abilities.
Akhil Krishnan
Roll code- 2013012

RESEARCH METHODOLOGY
The method of doctrinal research methodology has been followed while doing this project. The
use of Books, Articles and Websites has been incorporated while doing this project.

ABSTRACT

The term sources of law have many meanings and are a frequent cause of error unless we
scrutinize carefully the particular meaning given to it in any particular text.
A formal source of law is defined by Salmond as that from which a rule of law derives its force
and validity; the material source is that from which is derived the matter, not the validity of law.
The formal source of the law is the will of the state as manifested in statutes and decisions of the
courts. An example of the material source is the custom; the rule, which the judge fashions into
law may be drawn from the life of the community, but what gives it legal force, is not the custom
but the solemn determination of a court. If law is regarded as being created by the will of the
state then that is the formal source of law. If law is the command of the sovereign, then the
sovereign is the formal source.

Jurisprudence etymologically means the knowledge of law. It is the knowledge of the law and
its interpretation, or the science and philosophy of law. This subject deals with the essential
elements in the conception of law; the relation that law bears to relative social sciences, politics,
ethics, and economics; the way in which law originatesin popular customs, judicial usage, and
legislationand the way in which it ceases to existthrough lack of use, change of usage,
abolishment, or repeal; its application with reference to people, time, and place; and the way in
which it is enforced.

CHAPTER-I
INTRODUCTION
Jurisprudence etymologically means the knowledge of law. It is the knowledge of the law and
its interpretation, or the science and philosophy of law. This subject deals with the essential
elements in the conception of law; the relation that law bears to relative social sciences, politics,
ethics, and economics; the way in which law originatesin popular customs, judicial usage, and
legislationand the way in which it ceases to existthrough lack of use, change of usage,
abolishment, or repeal; its application with reference to people, time, and place; and the way in
which it is enforced. Jurisprudence, thus, is a very broad subject the scope of which extends
infinitely with all affairs of law. Jurisprudence begins at the very ground level of understanding
what exactly law is. Over this issue, there is a wide range of divergent opinions of great jurists
since time immemorial. These different views and conceptions of law are, for the purpose of
simplicity and convenience, are classified into various schools of law. It is very important to
understand that this classification is not made in water-tight compartments and the theories of
law by some persons who are classified in a particular school, may even agree with another
school to a fairly large extent. Besides this these theories has been seen emanating from text
books written with context of jurisprudence.
As has been mentioned earlier, law is not a concept that has can be conclusively defined and
various persons understand law is different ways. So, in order to understand the concept of law,
it is very useful to look at law from different points of view. This gives us an all-round
understanding of what law is. However, it is extremely important to note here that it is just not
enough to merely look at law on the lines determined by others, it is more important to critique
the different points of view, that is, the different theories of law. No theory is perfectly correct of
outright wrong; all of them have their strengths and weaknesses and one must try to locate these
on the basis of logic and ones own understanding of law. What become important here with that
mean is the text books which has been there to embibe all these theories. This sharpens logical
thinking, which is a necessary mental exercise to be undertaken in the field of law. This exercise
helps one broaden ones outlook of law and perceive new horizons in the understanding of laws.
Therefore, it becomes imperative for a better understanding of jurisprudence is to see and
7

analyses, to what context these books has been the source of jurisprudence. The researcher has
delved in to the question of legal, historical sources and juristic writings so as to find the source
of law.

CHAPTER-II

MEANING OF THE TERM SOURCE

The term sources of law have many meanings and are a frequent cause of error unless we
scrutinize carefully the particular meaning given to it in any particular text.
A formal source of law is defined by Salmond as that from which a rule of law derives its force
and validity; the material source is that from which is derived the matter, not the validity of law.
The formal source of the law is the will of the state as manifested in statutes and decisions of the
courts. An example of the material source is the custom; the rule, which the judge fashions into
law may be drawn from the life of the community, but what gives it legal force, is not the custom
but the solemn determination of a court. If law is regarded as being created by the will of the
state then that is the formal source of law. If law is the command of the sovereign, then the
sovereign is the formal source.
If law is valid because it is the embodiment of natural law or of absolute justice, then the source
of the law is the ideal. If law is valid because it is the product of an inner sense of right, then that
sense of right is the source of law; this the view of the historical school. DevVecchio regards the
source of law as being in the nature of man. If law is valid because it is the product of custom,
then the habits of the people are the source of law. Writers who adopt these views do not regard
the state as source of law.
In the modern state law is normally created by the formal act legislation or the decisions of a
court or else by the act (whether legislative or judicial) of a subordinate person or group of
persons acting within the limits of the delegated authority. The material sources are very
comprehensive since they include anything that may be drawn into the process of certain. Thus,
8

an English judge may adopt a principle from an ancient Roman text or a modern American case
from a text book of law or a custom of the community. When it is said that statute is the source
of law, the word source refers not to mere historical or casual influences but to one of the criteria
of legal validity accepted in the legal system in question.
The term sources of law has been used in different senses by different writers and various views
have been expressed from time to time. Sometimes, the term is used in the sense of sovereign or
the state from which law derives its force or validity. Sometimes it is used to denote the causes of
law or the matter of which law is composed. It is also used to point out the origin or the
beginning, which gave rise to the extreme of law. Allen uses it in the sense of agencies through
which the rules of conduct acquire the character of law by becoming definited, uniform and
compulsory. Vinogradoff uses it as a process by which the rule of law may be evolved.
Oppenheim uses it as the name for a historical fact out of which the rule of conduct rise into
existence and acquire legal force. Some have used the term as the sources of knowledge of law.
According to the school of natural law, law has a divine origin. Every law is the gift of god and
the decision of sages. The Quran is the word of god. The Hadis contained the precepts of the
prophet as inspired the suggested by god. According to the Hindus, the Vedas were inspired by
god. The law of Lycurgus in Greece had a divine origin. The mosses got the commandments
from Jehovah and Hammuravi got his code from the sun god.
The sociological school of law protest against the orthodox conception of law according to which
law emanates from a single authority in the state. According to this school law is taken from
many sources and not from one source. According to Ehrlich, at the present as well as any other
time, the centre of gravity of legal development lies not in legislation, not in juristic science nor
in judicial decisions, but in society itself. According to Duguit law is not derived from any single
source and the basis of law is public service. There need not to be any specific authority in a
society, which had the power of making laws.
Austin refers to three different meanings of the terms 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 documents from which the body of the law can be
known. In this connection reference can be made to the digest and code of Justinian. In the third
9

place, the term refers to the causes, which have brought into existence the rules, which later on
acquire the force of law. Examples are customs, judicial decisions, equity, legislations etc.
The analytical school of jurisprudence as presented by Austin is attacked by the historical school
as represented by persons like Savigny, Sir Henry Maine, Pchta,etc. according to their view, law
is not made but is found. The foundation of the law lies in the common consciousness of the
people which manifests itself in the practices, usages and customs of the people. Custom and
usages are the sources of law.
Salmond refers to the formal and material sources of law. A formal source is that from which a
rule of law derive its force and validity. It is that from which the authority of law proceeds. The
material source of law are those from ehich is derived the matter and not the validity of law. The
material source supplies the substance to which the formal source gives the force and nature of
the law.

LEGAL AND HISTORICAL SOURCES

According to Salmond the material source of law can be divided into two parts: legal and
historical. Legal source of law are those sources, which are recognized as such by law itself.
Historical sources of law are those sources, which are such in fact but are nevertheless destitute
of legal recognition.
The legal sources of law are authoritative but the historical sources of law are not authoritative.
The legal sources are allowed by the law of courts as a matter of right. The historical sources
cannot put forward such a claim.
The decision of English courts are legal and authoritative source of English law. The decisions of
American courts in England are merely historical and authoritative source of law. Those
judgments are shown great respect but their value is purely persuasive and not authoritative.
They are not recognized by any rule of law. The legal sources are the only code through which
new principles can find entrance into the law. Historical sources operate only immediately and

10

indirectly. They are merely the links in the chain and the ultimate link is supplied by some legal
source.
Analytical jurisprudence confines itself to the study of the legal sources of law. Ordinarily, law
itself done the method by which new principles can be admitted into law. It provides that the
judicial precedents customs or an act of the legislature shall have the force of law. The writings
of commentators of Hindu and Mohammedan are partly historical source of law and partly legal
sources. The principles laid down by Abu Hanifa and his two disciples, Abu Yusuf and Imam
Mohammad are the legal sources of law where such principles have not been recognized in
judicial decisions. In the case of Hindu law the Mitakshara, the Dayabhaga, the
VyavharaMayukha, etc are the legal sources of law. Where the principles have already been
accepted in the form of precedent the writings are merely the historical sources of law.

CHAPTER-III

JURISTIC WRITING AND TEXT BOOK AS A SOURCE OF LAW

The historical and legal sources of the laws are well known. Apart from them, there is also
another category of a source of law which is termed by Salmond as literary sources. The
professional opinion of eminent jurists and there writings which is generally referred as juristic
law, however, it can be called as literary source of law. In fact juristic writing have played a very
important role in legal evolution. In England the trend was set by Bracton, continued by such
legal luminaries as Glanville, coke and Blackstone. In recent times, in the field of private
international law, the works Dicey and Cheshire have become classics. Salmond has pointed out
that it is necessary to distinguish the literary source from the other sources. The literary source is
the term generally used in the continent that in England. The literary sources are the sources of
our knowledge, as opposed to the statutes or precedent. The commentaries on Roman law are
different from compilation of the emperor Justinian, which can be treated as juristic work. In
11

English law there are number of examples of literary sources of law, like older commentaries and
authoritative modern text-books, such as Littleton are available as opposed the statute law.
There are mainly two categories of the literary sources of law that is juristic writing and
professional opinions of highly qualified publicists.
Juristic laws have played a part in legal evolution which cannot be ignored. It has been pointed
out by the historical scholars that the professional opinion has played a very important role in the
field of practice of conveyancers, who settled the common forms which carried out in practice
the principles of the law, tended to be treated by the courts as such cogent evidence of the law,
that it can be regarded almost as a secondary source of law.
High court of Australia in Cowed v Racecourse co. Ltd (1937), referred the adverse criticism and
defenses of the decision by Holdsworth, Miles, Denis Browne, Cheshire, Hanbury, Gale,
Winfield, Pollock, Geldart, Salmond and Smiths leading cases.
Juristic writing and professional opinion have not been accepted as binding source of law, but it
has been treated as persuasive source. If it is a question whether a persuasive precedent should be
followed, a court may be persuaded by the opinion of the profession concerning the correctness
of that decision, so far appeared in the law reviews, or by the views expressed in the leading
textbooks.
In Nicholls v. Ely Beet Sugar Factory Ltd.,1 Lord Wright expressed very high tribute to Pollocks
Law of Torts. In Bradford v. Symondson,2 the judgment turned almost entirely on the discussion
of the books of leading text writers on insurance.
Similarly, in Haynes v Harwood,3 the court followed the conclusion reached by Prof. Goodhart in
an article written by him in the Cambridge Law Journal.

1 (1936, 1 Ch. 343)

2 (1881 7 Q.B.D. 462)
3 (1935 1 K.B. 146)
12

VALUE AND SIGNIFICANCE OF TEXT BOOKS

The textbook attempts to universalize, to reduce to an ordered unity, and to discover the deeper
principles that underline particular decisions. There are works which are mere collections of
cases together in narrative fashion, but while these have their use as convenient repositories of
the relevant decisions, they are not textbooks in the true sense of that word. The speculative and
generalizing mind of an expert views particular decisions in their proper perspective and
discovers principles which are latent in the line of cases. Under the English system, which treats
even a single decisions of a higher court as binding, there must be a perpetual struggle to prevent
law becoming a mere collection of specific decisions and to search for unifying principles.4
The textbook may be necessary for teaching, but its influence goes further. Ehlrich suggests that
Roman law owned its great systematic completeness and perfection of formal to the teaching
activities of the jurists.5Maitland remarked that taught law is tough law, and thereby he was
referring not to the sufferings of the students but to the strength given to a system when it is
systematically expounded. Roman law had greater influence on the continent than in England
largely because the teaching of the universities was confined to Roman law alone and the native
systems were rather despised, whereas in England, even if the earlier universities concentrated
mainly on Roman law, the inns of court established a learned tradition for the common law.
Teaching requires that the law should be, as far as possible , reduced to a systematic order hence
the search for principle which can afford the ratio legis lying behind a particular part of law. If
the reason for a particular rule can be explained, then it is remembered more easily and the
teacher tries to discover broad principles that are only implicit in the law. Thus the early
textbooks of the law of tort attempted to organize the subjects on the principles of no liability
without fault. The generalization may have been premature, but it aided in transforming the law
from a collection of forms of actions into a body of principles-although it must be confessed that

4 Paton, textbook of jurisprudence (4rth ed.) P.267.

5 Fundamental Principles of the sociology of law (trans. W.L. Moll),269.
13

the law of tort is still notoriously difficult for those who demand logic, order, and system 6.
Textbooks were naturally influenced by the prevailing theory of law. In the eighteenth century
natural law was drawn upon in order to fill the gaps of the law, and in this way new principles
were introduced and law was brought into closer touch with moral theories. To many persons
today natural law seems a mere empty figment, but the text writers, in his search for reason, drew
largely on the experience of the other system and thus filled with practical content the
philosophic theory borrowed from the past. Kent and story in America treated comparative law
as declaratory of natural
Law.7 In the nineteenth century in England the analytical school was predominant, and the
attempt to organize and explain the mass of cases on the basis of logical principles gave to
English law strength and cohesion. Today it is realized that the analytical school tended to
subordinate everything to elegantiajuris, and textbooks are exerc sing more independence of
thought and are criticizing rules on the basis of their social effects.8
Pound stated that the text-writers has a much narrower creative function that the judge, for he
holds no official position. His first task was to expound the law that is and to correlate the
various rules. But there must inevitable be some discussion on the basis of law. The main dispute
today is the degree of independence which a textbook should show.
Via media is of little use for a textbook to write an ideal law of tort under the pretext of
discussing English law; on the other hand, merely the record decisions is an abdication of
function. The limits of freedom left to a text book writers are narrow, but within these there
should be an attempt to create. Prof Cohen pointed out that an interesting technique is that of
Cheshire,9 who is dealing with each topic concerning private international law first discusses
what the theory of law should be, and then deals with the actual decisions. This allows the
6 Paton, textbook of jurisprudence (4rth ed.) P. 267
7 Roscoe Pound, the formative era of American law, 147.
8 Ibid
9 R. Pound, The Formative Era Of American Law, 147
14

textbooks to be the faithful record of the law that is, while pointing the way to further reform by
providing a critical commentary of the cases that have been decided.
An interesting account of the part played by the textbook in the development of American law,
(1938). According to him, doctrinal writing has had more influence in America than in England,
especially in earlier times. Even today, that influence is not wanting, because the lists of courts
are congested, the authorities are many, and there is thus a strong natural temptation to turn to
any text book which states the law in clear and definite terms. The American Restatement of the
law is an interesting modern example of co-operation between the Bench, the profession and the
law teacher.
The mass of decisions given in fifty-one jurisdictions make it impossible for the practitioner to
keep abreast of the law. Hence the American law institute, recognizing that the law was
becoming uncertain, set up machinery to enable the law to be restated in short sections. An
acknowledged authority was appointed as reporter for each subject, and given the assistance of a
council of advisers consisting of judges, practitioners, and university teachers. After passing the
scrutiny of these advisers, the work was submitted to the law institute for its approval. The
restatement is neither the text nor a digest, for no authorities are cited: the law is stated in blackletter sections to which comment and illustrations are attached. Nor it can be called a code, for it
has no authority, save that gained by its prestige. But it is an interesting example of co-operative
effort by the legal profession and the twenty-seven volumes already published have exercised
great influence in the courts.10

CHAPTER-IV

10 The Restatement in the courts (American Law Institute)

15

IMPORTANCE OF TEXT BOOK AS A SOURCE OF LAW IN INTERNATIONAL LEGAL

SYSTEM
In England a modest place is afforded to the textbook than in most system of law. Paton pointed
out that everywhere there is a short of competition between the judiciary and the scientific
jurists. When one of these groups is endowed with all the official power and then other is
restricted to private activity, as is the case in England in respect to the Bench and the theorists,
there can be little doubt as to the result of the contention. But it must not be supposed that the
textbook has had no influence in English law. In the early period the dearth of authority led men
to turn to such books as there were, and the work of Bracton did much to shape the foundations
of English law. It was at one time thought that Bracton had foisted on his contemporaries a
second hand version of Roman law as an English textbook, but further investigation 11 has shown
that Bracton searched for and gave English authority where it existed and used Roman law only
to provide the general structure and to fill the gaps left by the decisions of the kings court.
Glanville, Bracton, Littleton, Coke and Blackston are five most important contributors of English
law. It is said that Bracton laid the foundations borrowing from Roman law what was necessary
to create a system with a reasonable flexibility and sufficient coherence to withstand the later
assaults of Roman law. Littleton gave a scientific account of the theory that lay behind the
decisions on real property and his glory is that he proved that English law could form a legal
system independent of the Roman law.12 Coke, well versed in the ancient learning, provided a
bridge between medieval and modern law, and finally Black stone, with a genius for
comprehensiveness, reduced to an ordered system and ornamented with a literary style the
diverse sources of English law. Lord Eldon once remarked that a writer who had held that no
judicial situation could not properly be cited as an authority. 13 This view has been gradually
modified, and it became the convention that the works of dead authors could be cited-not, of
course, as binding authorities, but only as expert evidence as to the state of the law. Thus, Lord
11Bracton and Azo (Selden society, ed. F.W. Maitland)
12 H. Levy-Ullmann, The English Legal Tradition, 142.
13Johnes v. Johnes (1814), 3 Dow 1 at 15.
16

Wright paid a graceful tribute to Pollocks law of Torts. But there is not a great practical
difference between adopting the argument of a living author without citing him as authority
(which was permissible) and citing his work as authority or as an expert opinion of what the law
is (which was not), and in modern times the number of citations of the work of living authors has
increased and is increasing. Paton observed that this is due to mainly an improvement in the
equality of text-books and to the growth in the quality and quantity of contributions to legal
learning appearing in the periodical literature. The excellence of the work of Glanvil, Bracton,
Littleton, Coke, and Blackstone must not bind us to the fact that their work covers a span of five
centuries, and there were few other books of the same quality. In the last seventy years many
books have been written by barristers who afterwards achieved fame on the Bench, and the
universities have aroused a greater interest in the literature of English law. In Bradford v.
Symondson14 the judgment turned almost entirely on a discussion of the books of leading writers
on insurance. Lord Wright said about the sir Frederick Pollock: this at least clear that he has
vindicated to this generation the vital importance of extra-judicial writing.15
In Roman law the textbook occupied a much higher place. There was no official bench in the
early period, and the jurist secured the prestige which in England is accorded to the judge. The
law of citations of A.D 426 recognized the work of five jurists as the main source of Roman law,
and the digest of Justinian was largely a series of readings from famous textbooks. When, at the
time of renaissance, the reception of the Roman law was stimulated, it was to the digest that men
turned. The great teachers of Roman law achieved international fame, and Roman law was
regarded almost as the ius commune of the Western Europe.
The French code was largely indebted to the work of the great jurists Domat and the Pothier who
had begun the task of fusing the Roman rules of the south and the Germanic customs of the
north. Even today in Europe some of the outstanding teachers of the law are more fortunate than
the highest judges, in their reputation, prestige, and emoluments.

14(1881), 7Q.B.D. at 462-3.

15 (1937), 53 L.Q.R. 151
17

CONCLUSION

This research paper now draws to its final segment, where the researcher on the basis of his
research, observation and analysis has arrived at his conclusions. It must be noted that the
researcher has relied largely on his own intuitive perception in suggesting practicable solutions to
the problems raised, discussed and deliberated through the course of this paper. This segment is
primarily devoted to answering all the research questions that the researcher had raised in the
early half of this paper.
At the outset the first question which the researcher has seek for was The first premise which
occur is that the source of the law is the authority in the state which more or less becomes the
corollary of Austrins idea, according to which it emanates out of sovereignty. But this principle
wasnt must appreciated by Henry Maine who supports the idea that law is not made but found
and its the common consciousness which manifests the same. For him, its the custom and usage
which are sources of law. Moreover this idea of source of law was again tackled by Salmonds
thoughts as for him, there are two sources, formal and material and then material sources are
divided into, legal and historical and by the virtue of courts interference, legal source becomes
authoritative. Moreover, till the time law is authoritative, rule of law doesnt recognize it and
18

these all legal sources directly or indirectly emanates from text books itself, may be by judgment
based on historical facts or otherwise. Juristic writings like that of Salmond, Bracton etc. have
also been playing their role as a source of law. The two parts of literary sources of law, juristic
writings and profession opinion of highly qualified publicist have also been accepted as binding
source of law and the courts, while deciding, also depends on the views laid down in text books
itself. Based on these observations and looking at the aspect of its importance in national and
international context, the researcher is of the view that text books and juristic writings are the
sources of law.

BIBLIOGRAPHY
BOOKS
1. Ghormade,

Vijay, Test Book on Jurisprudence and Legal Theory, Hind Law

Publications, Hyderabad

2. Myneni,

S.R, Jurisprudence (Legal Theory), 2 nd edition, 2004, Asia Law

House, Hyderabad

3. Dhyani,

S.N., Fundamentals of Jurisprudence, 3 rd edition,2004, Central Law

Agency, Allahabad

4. Mahajan,

V.D., Jurisprudence and Legal Theory, 5 th edition, 2008, Eastern

Book Company, Lucknow

5. Pranjape,

N.V, Studies in Jurisprudence legal theory, 4 th edition, 2004,

Central Law Agency, Allahabad

6. Paton, G.W., A text book of Jurisprudence, 4th edition, OXFORD

19

7. Dr.

Kapoor. S.K. , International law and human right, 16 th edition, Central

law Agency

8. John

Austin the province of Jurisprudence determined, Indian Economy

Reprint 2008, Universal law publishing co.

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