Handout no.

Sources of law

1.1Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence,
classified the sources of law into mainly two categories,i.e., material sources and formal
sources. 

1. Material sources

Material sources of law are those sources from which the law gets its content or matter, but not
its validity. There are two types of material sources which are legal sources and historical
sources. 

2. Legal sources 

Legal sources are the instruments used by the state which create legal rules. They are
authoritative in nature and followed by courts of law. These are the sources or instruments that
permit newer legal principles to be created. According to Salmond, legal sources of English law
can be further classified into four categories- 

 Legislation, 

 Precedent, 

 Customary law, and

 Conventional law. 
1.1.1 Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the government. It is
one of the most important sources of law in jurisprudence. The word legislation is derived from
the words legis and latum, where legis means law and latum means making. 

Types of legislation 

According to Salmond, legislation can be classified into two types- Supreme and Subordinate. 

1. Supreme legislation 
Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body.
The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled
or modified by another body. Indian Parliament cannot be said to be a sovereign law-making
body as the laws passed by the parliament can be challenged in the courts. The British
Parliament, on the other hand, can be said to be a sovereign law-making body since the validity
of laws passed by it cannot be challenged in any court. 

2. Subordinate legislation 
Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The
subordinate body must have derived its law-making authority from a sovereign law-making
body. It is subject to the control of the supreme legislative body. The following are the different
kinds of subordinate legislation: 

 Executive legislation: This is a form of subordinate legislation where the executive is

granted or conferred certain rule-making powers in order to carry out the intentions of
the legislature. 

 Colonial legislation: Many territories across the globe were colonised by Britain and
such territories were called colonies. The legislation passed by the legislature of such
colonies was subject to the control of the British Parliament. 
  Judicial legislation: Courts also have a role in enacting laws that aid in regulating the
internal affairs and functioning of courts. 

 Municipal legislation: Municipal authorities also possess the law-making power as

they enact bye-laws. 

 Autonomous legislation: Another kind of legislation is autonomous legislation,

which is concerned with bodies like universities, corporations, clubs, etc. 

 Delegated legislation: Sometimes legislative powers may be delegated to certain

bodies by the parliament through principal legislation. A principal act may create
subsidiary legislation that can make laws as provided in the principal legislation.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision
has a legal principle that is binding on the subordinate courts. Once a court has delivered a
judgement on a particular case, the courts subordinate to it must abide by the precedent while
deciding on similar cases with similar facts.

The doctrine of Stare Decisis 

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare
decisis means to not disturb the undisturbed. In other words, precedents that have been valid for
a long time must not be disturbed. 

Doctrine of Res Judicata 

The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has
been decided upon, the parties are barred from raising the same issue in courts again, unless new
material facts have been discovered. They can’t raise another issue arising from the same claim
either since they could have raised the same in the previous suit. 
Ratio Decidendi 

As per Salmond, a precedent is a judicial decision that contains a legal principle with an
authoritative element called ratio decidendi. Ratio decidendi means reason for the decision.
Whenever a judge gets a case to decide on, he has to adjudicate it even when there is no statute
or precedent concerning it. The principle that governs such a decision is the reason for the
decision which is also called ratio decidendi. 

Obiter Dicta 

The term obiter dictum means mere say by the way. This term is used to refer to statements of
law that are not required for the case at hand. A judge may in the judgement of a case declare
some legal principles to be applied in a hypothetical situation. It does not have much impact or
authority. However, the subordinate courts are bound to apply the principles. 

Types of precedents 

1. Authoritative

Authoritative precedents are those precedents that must be followed by subordinate courts
whether they approve of it or not. They create direct and definite rules of law. They fall into the
category of legal sources of law.

Authoritative precedents can be classified into the following two types: 

 Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and

it cannot be disobeyed even if it is wrong. 

 Conditional authoritative
A conditionally authoritative precedent is binding on other judges but it can be disregarded in
certain special circumstances as long as the judge shows the reason for doing so. 

2. Original

An original precedent creates and applies a new law. When existing law is either silent or absent,
then judiciary decides the case on basis of morality keeping in view what has to be done.

3. Persuasive

Persuasive precedents on the other hand do not create a binding obligation on the judges.
Persuasive precedents can be applied as per the discretion of the judge. 

4. Declaratory 

According to Salmond, a declaratory precedent is a precedent that simply declares an already

existing law in a judgement. It is a mere application of law

Factors increasing the authority of a precedent 

1. The number of judges constituting the bench that makes the decision. 

2. A unanimous decision has more weight. 

3. Approval by other courts, especially the higher courts. 

4. The enactment of a statute that carries the same law subsequently. 

Factors decreasing the authority of a precedent 

1. Abrogation of judgement by reversal or overrule of a higher court. 

2. Abrogation of judgement by a statutory rule enacted subsequently. 

3. Affirmation or reversal of decision on a different ground. 

4. Inconsistency with the previous decision of a higher court. 

5. Inconsistency with previous decisions of the court of the same rank. 

6. Inconsistency with already existing statutory rules. 

7. Erroneous decision.