Sources

of Law:-

In technical sense, law is the command of the state, recognized by various organs of the state, and
enforced by sanctions. In this sense, the state is apparently the source of all law. However, the state
does not make law by itself, out of its own will. Pluralists like R.M. Maclver (1882-1970) believe that
law existed even before the emergence of the state; the state does not create law but only declares
it. In what forms does law exist, before its formal recognition, enactment and enforcement? An
inquiry into these questions will lead us to the sources of law.

1) CUSTOM
Social usage or custom is the oldest and most important expression of law. Social life of human
beings was regulated by custom long before the emergence of the state. Custom represents those
modes of behaviour which were found suitable after trial for a long time, and which were stabilized
and accepted as standard forms of behaviour. Human beings came to treat them as binding rules.
Those who violated these rules were ridiculed, deprived of certain privileges of social life including
normal social intercourse, or punished so much so that they could be exterminated or executed.
We have many customs which were neither created nor inspired by the state. For example,
institutions of marriage and family, based on custom, are certainly prior to the state. State may
make laws to regulate these institutions with the changing needs and levels of consciousness.
Similarly, rules of economic transaction were derived from social usage which eventually became the
subject of elaborate legislation. Common Law of England is based on custom which is recognized by
law-courts as valid as law itself.

2)RELIGION
In primitive communities custom and religion were intertwined. Religion determined not only
modes of worship but also a good deal of custom regulating social life. In traditional society the close
links between the priest and the king are an ample proof of close relations between religion and
politics. Ancient Roman law is largely grounded in a set of religious rules. Ancient Indian codes of law
cannot be distinguished from scriptures. Hindus and Muslims in India even today have their separate
personal laws based on their religious beliefs and practices, particularly for regulating marriage and
inheritance.

3) SCIENTIFIC COMMENTARIES
Several publicists and eminent jurists have written treatises giving interpretation of the substance of
law prevailing in different countries. In these works, they have raised questions on which the law is
either silent, or vague, or uncertain. They have advanced their well-built arguments and proofs to
deal with such situations. They have expressed their opinions so effectively and convincingly that
these are treated as authentic as law itself. It is true that very few of such treatises have won much
recognition, yet they constitute an important source of law. In England views of Edward Coke (1552-
1634) and William Blackstone (1723-80) are treated as authoritative as law; in America works of
Joseph Story (1779-1845) and James Kent (1763-1847) enjoy similar status. The opinions of these
scholars are recognized even by law-courts for arriving at their decisions. Many eminent jurists have
written elaborate commentaries on Indian constitutional law; one or two of them might be
recognized as authoritative, in due course.

4) ADJUDICATION
In most countries judicial decisions and verdicts are accompanied by explication of such principles
or interpretations of law which serve as precedents for future decisions. The case law of England and
Supreme Court decisions in America and India are the case in point. Where law is silent, vague or
uncertain, judges may express their opinions to deal with such situations, with well-built arguments
and proofs. At times they tend to expand the scope of law by giving it new interpretations according
to the changing needs of time, and thus make their own contribution to the existing body of law.

5) EQUITY
Equity, like adjudication, is another form of judge-made law. Whereas adjudication involves
interpretation and application of the existing law, equity breaks new ground. Where existing law is
inadequate, judges may use their common sense, or their own understanding of fairness to give
relief to the party concerned. Equity is derived from the principles of natural justice rather than from
the letter or the spirit of law. Equity was used in ancient Roman law. In the modern age equity is
often invoked in the cases involving law of contract.