ASSAM UNIVERSITY SILCHAR

DEPARTMENT OF LAW
ASSIGNMENT WORK

2020

SUBMITTED ON THE TOPIC

Sources Of Law

SUBMITTED TO: SUBMITTED BY:

DR R.R MISHRA NAME: SUNAYANA GUPTA

ASSISTANT PROFESSOR ROLL NO: 17 SEMESTER: 4TH

DEPARTMENT OF LAW COURSE NO: 402

ASSAM UNIVERSITY SUBJECT:JURISPRUDENCE

SILCHAR COURSE:B.A LL.B(H)

 ACKNOWLEDGEMENT
It was a great pleasure to undertake this assignment. To make the final outcome
of any assignment successful it requires a lot of guidance and I am extremely
thankful to my teacher DR NISHIKANT SINGH, Assistant Professor,
Department Of Law , Assam University who has provided me with this
opportunity to gain knowledge through this assignment.

I am also grateful to my family and classmates who constantly motivated

me to this assignment within the time period.

I am privileged to do this assignment and gain so much knowledge

through it. The assignment wouldn’t have completed without the enormous help
and guidance within the limited time frame.

THANKING YOU

Sunayana Gupta

4th semester, Roll no:17

B.A LL.B (HONOURS)

SOURCES OF LAW
The meaning of the term “sources of law” differs from writer to writer. The positivists use the
term to denote the sovereign or the State who makes and enforces the laws. The historical
school uses the term to refer to the origins of law. Others use it to indicate
the causes or subject matter of law. Prof. Fuller, in his “Anatomy of the Law”, states that a
judge interprets and applies certain rules to decide upon a case. Such rules are obtained from
various places which are known as “sources”. He further goes on to give examples of the
common sources of law such as codified laws, judicial precedents, customs, juristic writings,
expert opinions, morality and equity. Holland has defined the term to mean the sources of the
knowledge regarding law.

C. K. Allen describes sources of law in the sense of " agencies through which the rules of
conduct acquire the character of law by becoming definite, uniform and compulsory".

According to Keeton Source means "the material, out of which is eventually fashioned, through the
activity of judges".

Oppenheim defines source of law as ”the name for a historical fact out of which the rules of
conduct came into existence and acquire legal force".

Rupert Cross writes that the phrase “source of law” is used in several different senses. First,
there is the literary source, the original documentary source of our information concerning the
existence of a rule of law. In this sense, the law reports are a source of law, whereas a
textbook on tort or contract, or a digest of cases falls into the category of legal literature.
Next, there are the historical sources of law, the sources-original, mediate or immediate- from
which rules of law derive their content as a matter of legal history. In this case, the writings
of Bracton and Coke and the works of other great exponents of English Law are sources of
law, for they enunciate rules which are now embodied in judicial decisions and Acts of
Parliament.

Natural Law : According to the school of natural law ,law has divine origin. Every law is the
gift of God and the decision of sages and saints.

For example The Quran is the word of the God. The Hadis contain the percepts of the Prophet
as inspired by the god. According to the Hindus, the Vedas were inspired by the God. The
law of Lycurgus in Greece had a divine origin. Moses got the Commandments from Jehovah
and Hammuradi got his code from the sun god.
Analytical View : John Austin refers to three different meanings of the term “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 document from which the
body of law can be known e.g, the Digest and Code of Justinian. In the third place, the term
refers to the causes which have brought into existence the rules which later on acquire the
force of law.

Examples are custom, judicial decisions, equity, legislation etc.

Sociological view: the sociological school of law protests 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. Ehrilch writes: “At the present as
well as anyothr time, the centre of gravity of legal development lies not in legislation, not in
juristic science nor judicial decisions, but in society itself”

According to Salmond there are two main sources of law. These were :

1. Formal Sources
2. Material Sources

1. Formal Sources Of Law

According to Salmond, formal sources are those sources from which the law derives its
force and validity. It is the will of the state, as manifested in statutes or, decisions of the
Courts. Example: The manifested will of statutes and judicial decision. Hence, the formal
sources of law include:

a. Will of the state: Sometimes for the benefits of the people the state makes its own laws
on the subjects which are provided in the state list under the 7th Schedule, with due
process of law manifested in our constitution.
 b. Will of the people: Laws are also made by the will of the people sometimes on facing
certain problems though it has to be considered acknowledgeable by the state. Then the state
makes it in the form of law.

c. Judicial decision of the court: In this case sometimes judgments of some lordships with
immense value are treated and transferred into a law.

CRITICISM:
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.

2. Material or Informal Sources of law:

The material sources according to Salmon are those sources of law from which the matter
of law is composed of though it doesn’t derive its validity from it. According to Salmond,
material sources of law are of two kinds, these are
A. Legal Sources
B. Historical Sources

Legal Sources: Legal Sources are those Sources which are the instruments or organs of
the State by which legal rules are created.

Salmond has classified the Legal Sources of English Law into three main divisions
which are as follows:
a) Legislation:
The term “Legislation” is derived from two Latin words, ‘legis’ meaning ‘law’ and
‘latum’ meaning ‘to make’. Etymologically, legislation means the making or the setting
of law. It may be defined as the promulgation of legal rules by an authority which has the
power to do so. According to Gray, legislation means “the formal utterances of the
legislative organs of the society.” According to Austin: “There can be no law without a
legislative act.”

The analytical school of jurisprudence believes the law to be a set of commands issued by
a sovereign authority. This command is what is known as a statute and the process of
making of a statute is known as legislation. The analytical positivists believe legislation to
be the only true source of law and disapprove of judiciary taking up legislative functions.
 Furthermore, they do not recognize customs as a valid source of law. On the other hand,
the historical school believes legislation to be the “least creative” source of law. They
believe that legislation only gives a proper form and structure to the customs that have
been developed by the people. Both the views are the two opposite extremes of regarding
legislation as a source of law. While the analytical school regards legislation as the only
source of law, the historical school disregards it as a source of the new law.

Types Of Legislation

 . Supreme legislation: Supreme legislation is the expression of the legislative will of a

supreme authority in a state. It is supreme because no authority can annual, modify or
control it. It proceeds from the sovereign or supreme legislative power in the state,
and which is therefore, incapable of being abrogated by any other legislative
authority.
 Subordinate legislation: Subordinate legislation is that which proceeds from any
authority other than the sovereign legislation power, and is, therefore, dependent for
its existence or validity on some superior or supreme legislative authority. It comes
from a subordinate legislature or any authority and is subject to the repealing or
sanctioning control of a superior legislation.

In England all form of legislative activity recognized by law, other than the power of
parliament are subordinated and subject to parliamentary control.

b) Precedent

Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. When there is no legislature on particular point
which arises in changing conditions, the judges depend on their own sense of right and wrong
and decide the disputes. Such decisions become authority or guide for subsequent cases of a
similar nature and they are called precedents.
The dictionary of English law defines a judicial precedent as a judgement or decision of a
court of law cited as an authority for deciding a similar state of fact in the same manner or on
the same principle or by analogy. Precedent is more flexible than legislation and custom. It is
always ready to be, used. Precedent is otherwise called case law judicial decision judge made
law it is the sources of law. It enjoyed a high authority precedent plays a vital role when law
is unwritten English common law is based on precedent.

Kinds of precedent

Classification of precedents into authoritative and persuasive is a widely accepted classification.

Authoritative Precedent

An authoritative precedent is one which the judge is bound to follow the irrespective of
whether he approves it. In other words the judge has no choice. For instance, are decision of
Supreme Court of India is binding on a judge of Kerala High Court. Similarly, a decision of
Kerala High Court is binding on lower courts in Kerala. In a system of precedent, decisions
of superiors are always consider as authoritative precedents.

Authoritative precedents are further classified in absolute and conditional. An absolutely

authoritative precedent is absolutely binding and must be followed without any question,
however, unreasonable or erroneous it may be appear to be. It has a legal claim to implicit
and unquestioned by the court. Conditionally authoritative precedent is one which is normally
binding on the judge may be disregarded by him in limited circumstances.

Persuasive precedents: Judges have no obligation to follow can take into considerations.
Here, he has a choice in deciding whether to follow a precedent. If he is convinced of the
crime of the merits of a decision, he may follow it; otherwise he may refuse. Precedent of
other court i.e. Foreign court. .Even though Persuasive precedents are not obligatory, but
they often put forth a decisive influence on judicial verdict.
The distinction between a persuasive precedent and a
conditionally a authoritative precedent lies in the fact that the former requires reason to
supported while the latter requires are reason to reject it. Authoritative precedents are
considered to be legal source of law, while the persuasive precedent is only historical sources.

c) Custom: Custom is the embodiment of those principles which have commended

themselves to the national conscience as principles as principles of justice and public utility.
In the Tanistry case custom was described in these words . “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 disposition, they use and practice it from
time to time, and it is by frequent iteration and multiplication of this act
that the custom is made and being used from time to which memory
runneth not to the contrary obtains the force of law.”

Customs is considered to be the oldest source of law. In ancient times,

there were no codified laws to regulate society. Instead, there existed
customs which comprised of acts which have been done so repeatedly
that they are spontaneously followed by all. The king never made any
laws. The customs made by the people were considered to be the law of
the land. With the passage of time, it was recognized that the customs are
vague and uncertain. This issue was resolved by formal recognition of
customs by the sovereign. This is how customs got converted into law.

Kinds of Custom: Custom are of two kinds:

I. Legal Custom
II. Conventional Custom.

I. Legal Custom: According to Salmond, a legal custom is one whose legal authority is absolute,
one which in itself and possesses the force of law:

Kinds of legal Custom:

 General Custom: General customs are those which have force of law throughout the
territory. The common law of England is based upon general customs of the realm.
 Local Custom: the local customs are those which operate have the force of law in a
particular locality. The authority of a local custom is higher than that of general custom.

II. Conventional Custom: A Conventional custom is one whose authority is conditional on its
acceptance in the agreement between the parties to be bound by it. A conventional custom
is an established practice which is legally binding because it has expressively or impliedly
included in the contract between parties concerned.
There is a process by which conventional usage comes to have the force of law.

Conditions for a valid custom:

Certain conditions must be satisfied before a court is entitled to incorporate the usages
into contracts.
 The usage must be so well-established as to be notorious.
 The usage must be reasonable.
 Usage cannot alter general law of land.
 A usage should not nullify or very the express term of the contract.

Requisites of Valid Custom: Following are the requisites for a valid custom, treated as
law
 Immemorial: A Custom to be valid must be proved to be immemorial. According to
Blackstone: A custom in order that in may be legal and binding, must have been used
so long that the memory of man not to the contrary, so that if anyone can show the
beginning of it, it is good custom.
 Reasonable: Another essential of a valid custom is that it must be reasonable. The
unreasonableness of custom must be so great that its enforcement results in greater
harm than if there were no custom at all. According to Prof. Allen: The
unreasonableness of custom must be proved and not its reasonableness.
 Continuous: A custom must not continuously observed and if it has not been
continuously and uninterruptedly observed, the presumption is that it existed at all.
 Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.
 Certainty: A valid custom must be certain and definite, if there is any ambiguities in it
or it keeps change, it is not a valid custom.
  Compulsory Observance: A custom is valid if its observance is compulsory. An
optical observance is ineffective. According to Blackstone: A custom that all the
inhabitants shall be rated towards the maintenance of a bridge, will be good, but a
custom that every man is to contribute thereto at his own pleasure is idle and indeed
no custom at all.
 General Or Universal: The custom must be general or universal. In the absence of
unanimity of opinion, custom becomes powerless or rather does not exist. A valid
custom must not be opposed to public policy or the principles of morality.

Historical Source

Historical Sources are rules that are subsequently turned into legal principles. Such source are
first found in an Unauthoritative form. Usually, such principles are not allowed by the courts as a
matter of right. They operate indirectly and in a mediatory manner. All rules of law have historical
sources .