NATIONAL LAW UNIVERSITY, JODHPUR

Project submission in the subject of Legal Methods and Legal System

Topic: An Analysis of Various Sources of Law
Summer Semester (July-November 2019)

Submitted By: - Submitted To: -

Rishabh Jain Mr. Aniruddh Panicker

Semester I, Section A Faculty of Law
B.B.A L.Lb. (Hons.) National Law University,
Jodhpur
 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………4

CLASSIFICATION OF SOURCES OF LAW………………………………………………...…...6

I. Formal Sources

II. Material Sources

ANALYSIS OF VARIOUS SOURCES…………………………………………………………....9

I. Customs

II. Judicial Precedents

III. Legislations

CONCLUSION……………………………………………………………………………… 16

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 ACKNOWLEDGEMENT

I would like to thank Mr. Aniruddh Panicker, Faculty of Law, for giving me an

opportunity to work on this project.

I am thankful to the library staff and IT staff for providing all necessary functionaries

without which the completion of this project wouldn’t have been possible.

My note of acknowledgement would be incomplete without expressing my gratitude towards

my mentor Mr. Abhinav Gupta for being a constant source of support, motivation and

encouragement, specifically for helping me understand the historical context of this topic.

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 INTRODUCTION

State is sovereign. Sovereignty is its exclusive and most important element. It is the supreme

power of the state over all its people and territories. The State exercises its sovereign power

through its laws. Hence, it can be concluded that law is the basic machinery that governs a

country and oversee the conduct of the citizens. As enumerated by Thurman Arnold,

“Obviously, law can never be defined. However, adherents of legal institution must never

give up the struggle to define law.”1 This confusion in defining law has been due to the

different purpose which is sought to be achieved. But law has been defined by many veteran

jurists and scholars. Salmond defines law as “the body of principles recognized and applied

by the state in the administration of justice”.2 In other words, it consisted of the rules

recognized and acted upon by the court of justice. Prof. Fuller, in his “Anatomy of the Law”,

states that a judge interprets and applies certain rules to decide upon a case.3 Such rules are

procured from various places which are known as “sources”. Thus, for more clear

understanding and interpretation of law, it is essential to understand the various sources of

law.

Source gives us an understanding of the objective behind the formation of everything. Sources of

law are the origins of rules of human conduct that came into existence in different ways. Though

there are various charges and counter-charges regarding the sources of law, it is obvious that in

almost all societies, the law has been acquired from similar sources. The general meaning of the

word “sources” is “origin”. There is a difference of opinion among the jurists regarding the

1
Thurman Arnold, The Symbols of Government, 1935.
2
Fitzgerald P.J, Salmond on Jurisprudence, 12th ed., 1966.

3
Fuller, Lon L.: Anatomy of Law, 1968.

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sources of law. Sometimes it is used to denote the ultimate authority which gives them the

force of law. Sometimes it is used to indicate the organs through which the State either grants

legal recognition to rules previously unauthoritative or itself creates new law. C.K. Allen uses

it in the sense of agencies through which the rules of conduct acquire the character of law by

becoming definite, uniform and compulsory.4 Vinogradoff uses it as the process by which the

rule of law may be evolved.5 Oppenheim uses it as a name for a historical fact out of which

rules of conduct come into existence and acquire legal force.

Natural law school considers nature and human reason as the source of law, while

theologians consider the religious scripts as sources of law. Although there are various claims

and counter claims regarding the sources of law, it is true that in almost all societies, law has

been derived from similar sources.

4
C.K. Allen, Law in the making, 1964.

5
The Crisis of Modern Jurisprudence, The Yale Law Journal, Vol. 29, 1920.

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 CLASSIFICATION OF SOURCES OF LAW

There exists no explicit classification of sources of law. Different thinkers and jurists have

given their own classifications according to their own understanding of the meaning of the

term. The positivists use the term to denote the sovereign or the state who makes and enforce

the laws. The historical school uses the term to refer to the origins of law. According to Sir

John Salmond, there are chiefly two sources of law- formal and material sources.6 Formal

sources are those from which law derives its validity and force. For example, the manifested

will of statues and judicial decisions.

It was further ramified the material sources into legal sources and historical sources. Legal

sources comprise of legislations, precedent, custom, agreement and professional opinion.

They are authoritative in nature and origin and are followed by the courts as a matter of right.

On the contrary, historical sources are those which are originally found in an unauthoritative

form and are subsequently admitted and rehashed into legal principles. For instance,

precedents are a material source of law. However, domestic precedents are legal source

whereas foreign precedents are a historical source.

SOURCES OF LAW

FORMAL SOURCES MATERIAL SOURCES

LEGAL MATERIAL SOURCES

HISTORICAL MATERIAL SOURCES

6
See supra note 2.

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 FORMAL SOURCES

The formal sources of law also be called the Actual or ultimate Sources of law. This relates

to the form or manner that causes the rules applicable formally. Prof. Allen considers that the

conception of a “formal source” is wholly unnecessary since it only means that the State will

recognize as law that which is law. These sources are the officials who set up the standards of

action due to their position in government. The formal sources of law have sometimes been

stated to be the courts and to be the legislatures, but sometimes only the courts have been so

considered. But, as a matter of fact, it is not only judges, and the constitution and statue

makers who are formal sources of law. It is any and all officials, owing to their position in the

government. According to Saut P. Panjaitan, source of law in the formal definition is

reviewing the procedure or the procedures of the law formation or look at the outward form

of the relevant law, which can be distinguished both written and unwritten. Source of law in

the formal definition in outward form or written as act, jurisprudence, agreements or treaties,

and doctrine or legal expert opinion. Meanwhile, the sources of law in the unwritten formal

definition is as a habit. According to the general view, the formal sources of law include laws

or regulations, customs, jurisprudence, treaties and doctrine.

MATERIAL SOURCES

Material source of law is a factor that helps the formation of the law, for example, social

relations, political power relations, socio-economic situation, tradition or religious views, the

results of scientific research, international development, and geographical circumstances.

Sources of law in the material definition are the factors or facts that determine the content of

the law. Material source of law is the source that determines of legal content. In a concrete

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sense, material source of law is in the form of human action that is considered to be in

accordance with what should be done.

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 ANALYSIS OF VARIOUS SOURCES

In this part a complete analysis of various sources from which Indian law are derived are

discussed in detail. The sources of Indian laws can broadly be classified into three categories

i.e custom, judicial precedents and legislation.

1. CUSTOM

Custom is considered as oldest source of law. In ancient times, there were codified

laws to regulate the society. There exist customs which comprised of acts and

practices which have been done so repetitively that they are spontaneously followed

by all. At the same time, it is important to note that customs were not uniform or

universal throughout the country. Some regions of the country had their own customs

and usages. Customs has been described in the Tanistry Case as “It is a jus non

sciptum and made by the people in respect of the place where the custom obtains. For

where the people find any act to be good and beneficial and apt and agreeable to

their nature and deposition, they use it and practice from time to time, and it is by

frequent iteration and multiplication of this act that the custom is made and being

from time to which memory runneth not to the contrary obtains the force of law.”7

The customs made by the people are always considered to be the law of the land.

With the passage of time, it was recognised as vague and uncertain. However, this

issue was resolved by formal recognition of the customs by the sovereign or the state.

This is how custom transformed into law. A custom to be passed as valid custom in

the eyes of law must fulfil the following requirements:

7
University of New South Wales, The case of Tanistry, AILR, pp. 73-81 (2001)

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 1. Antiquity -: In order to be legally valid customs should have been in
existence for a long time, even beyond human memory. In England, the year

1189 i.e. the reign of Richard I King of England has been fixed for the

determination of validity of customs. However, in India there is no such time

limit for deciding the antiquity of the customs. The only condition is that

those should have been in practice since time immemorial.

2. Morality: - A custom which is immoral or opposed to public policy cannot be

a valid custom. Courts have declared many customs as invalid as they were

practised for immoral purpose. For instance, Bombay High Court in the case

of Mathura Naikon v. Esu Naekin8 held that, the custom of adopting a girl for

immoral purposes is illegal.

3. Continuity: - A custom to be valid should have been in continuous practice.

It must have been enjoyed without any kind of interruption. Long intervals

and disrupted practice of a custom raise doubts about the validity of the same.

4. Reasonableness: - A custom must conform to the norms of justice and public

utility. A custom, to be valid, should be based on rationality and reason. If a

custom is likely to cause more inconvenience and mischief than convenience,

such a custom will not be valid.

5. Consistency: - There must be consistency between customs in order to get

qualified as a valid custom. Two custom that have opposing viewpoints or

contradict each other cannot be qualified as a valid custom in the eyes of law.

8
(1880) ILR 4 Bom 545.

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Customs can be broadly classified into two parts: -

i. Customs without sanction: These kinds of customs are non-obligatory in nature

and are followed because of public opinion.

ii. Customs with sanction: These customs are binding in nature and are enforced by

the State. These customs may further be divided into the following categories:

a. Legal Custom: Legal custom is a custom whose authority is absolute; it

possesses the force of law. It is recognized and enforced by the courts. Legal

custom may be further classified into the following two types:

1. General Customs: These types of customs prevail throughout the

territory of the State.

2. Local Customs: Local customs are applicable to a part of the State, or

a particular region of the country.

b. Conventional Customs: Conventional customs are binding on the parties to

an agreement. When two or more persons enter into an agreement related to a

trade, it is presumed in law that they make the contract in accordance with

established convention or usage of that trade. For instance, an agreement

between landlord and tenant regarding the payment of the rent will be

governed by convention prevailing in this regard.

2. JUDICIAL PRECEDENTS

In simple words, judicial precedent refers to previously decided judgments of the

superior courts, such as the High Courts and the Supreme Court, which judges are

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 bound to follow.9 This binding character of the previously decided cases is important,

considering the hierarchy of the courts established by the legal systems of a particular

country. In the case of India, this hierarchy has been established by the Constitution of

India. Judicial precedent is an important source of law, but it is neither as modern as

legislation nor is it as old as custom. It is an important feature of the English legal

system as well as of other common law countries which follow the English legal

system. However, Stobbe is of the opinion that precedent refers to the practice of law

and the practical explanation of something and cannot be regarded as the source of

same thing.

A judicial precedent can only make new law but cannot alter an existing one. They

come to play only when there are gaps or loopholes in the existing law. Its function is

to fill gaps with the new laws Where there is a settled rule of law, the judges are

bound to follow that. Judicial decisions can be divided into following two parts: (I

i. Ratio decidendi (Reason of Decision): 'Ratio decidendi' refers to the binding

part of a judgment. 'Ratio decidendi' literally means reasons for the decision. It

is considered as the general principle which is deduced by the courts from the

facts of a particular case. It becomes generally binding on the lower courts in

future cases involving similar questions of law.

ii. Obiter dicta (Said by the way): An 'obiter dictum' refers to parts of judicial

decisions which are general observations of the judge and do not have any

binding authority. However, obiter of a higher judiciary is given due

consideration by lower courts and has persuasive value.

9
Article 141, The Constitution Of India, 1950.

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3. LEGISLATIONS

In modern times, legislation is considered as the most important source of law. The

term 'legislation' is derived from the Latin word legis which means 'law' and latum

which means "to make" or "set". Therefore, the word 'legislation' means the 'making

of law'. It may be defined as the promulgation of legal rules by an authority which has

the power to do so. 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 recognised by the State. The expression 'legislation' has been used in

various senses. It includes every method of law-making. In the strict sense it means

laws enacted by the sovereign or any other person or institution authorised by him.

The kinds of legislation can be explained as follows:

i. Supreme Legislation: When the laws are directly enacted by the sovereign,

it is considered as supreme legislation. One of the features of Supreme

legislation is that, no other authority except the sovereign itself can control or

check it. The laws enacted by the British Parliament fall in this category, as

the British Parliament is considered as sovereign. The law enacted by the

Indian Parliament also falls in the same category. However, in India, powers

of the Parliament are regulated and controlled by the Constitution, through the

laws enacted by it are not under the control of any other legislative body.

ii. Subordinate Legislation: Subordinate legislation is a legislation which is

made by any authority which is subordinate to the supreme or sovereign

authority. It is enacted under the delegated authority of the sovereign. The

origin, validity, existence and continuance of such legislation totally depends

on the will of the sovereign authority. Subordinate legislation further can be

classified into the following types: -

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a. Autonomous Law: When a group of individuals recognized or

incorporated under the law as an autonomous body, is conferred with the

power to make rules and regulation, the laws made by such body fall

under autonomous law. For instance, laws made by the bodies like

Universities, incorporated companies etc. fall in this category of

legislation.

b. Judicial Rules: In some countries, judiciary is conferred with the power

to make rules for their administrative procedures. For instance, under the

Constitution of India, the Supreme Court and High Courts have been

conferred with such kinds of power to regulate procedure and

administration.

c. Local laws: In some countries, local bodies are recognized and conferred

with the law-making powers. They are entitled to make bye-laws in their

respective jurisdictions. In India, local bodies like Panchayats and

Municipal Corporations have been recognized by the Constitution through

the 73rd and 74th Constitutional amendments. The rules and bye-laws

enacted by them are examples of local laws.

d. Colonial Law: Laws made by colonial countries for their colonies or the

countries controlled by them are known as colonial laws. For a long time,

India was governed by the laws passed by the British Parliament.

However, as most countries of the world have gained independence from

the colonial powers, this legislation is losing its importance and may not

be recognized as a kind of legislation.

e. Laws made by the Executive: Laws are supposed to be enacted by the

sovereign and the sovereignty may be vested in one authority or it may be

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distributed among the various organs of the State. In most of the modern

States, sovereignty is generally divided among the three organs of the

State. The three organs of the State namely legislature, executive and

judiciary are vested with three different functions. The prime

responsibility of law-making vests with the legislature, while the

executive is vested with the responsibility to implement the laws enacted

by the legislature. However, the legislature delegates some of its law-

making powers to executive also.

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 CONCLUSION

In order to interpret any law, it is important to understand the source of the law. This is why

the topic of sources of law has received much attention from several jurists, thinkers and legal

theorists. The most widely accepted source of law is legislation. The position of customs, the

most important source of law in ancient times, has been reduced to a traditional one in

modern times. With the growing idea of constitutionalism, legislations and judicial

precedents occupy the centre position

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