Sources of law means the rules from where the binding rules of human conduct originates. Man is a social animal and is accustomed to live in a society and in order to live in a society it is important to follow the code of conduct laid down by the society at large. Law is a very ancient phenomenon. Since biblical times ,there were certain laws and code of conducts for governing the society. These laws were variant and different in nature and form. With the changing times and societies and with respect to the demands of society, the laws kept on reforming and passed through various stages before they could be interpreted in the form as we see it now.
In the course of changing times and changing laws there came various jurists and philosophers who gave different theories of classification and importance of law and their work has contributed immensely in the field of law.
Salmond, an English jurist, has classified sources of law into the following categories-
Formal sources of law:
*Sources from which the law derives its force and validity. E.g: will of the state as manifested in statutes and judicial decisions.
*A law enacted by the state or sovereign falls into this category
Material sources of law:
The sources from which the law derives the matter which is composed and not the validity. Further material sources are divisible into two categories namely –
a) Legal sources of law:
● Creates legal rules
● New principles find their admittance in the legal sphere.
● Recognized as such by the law itself through court of law.
Examples of such sources of law are, acts of legislatures, customs, precedents, equity, statutes etc.
b) Historical sources of law:
● No legal recognition
● They are of persuasive value
● May become legal by recognition or incorporation in law
Examples of such sources of law are historical documents, jurists' writings etc.
So there are basically three major sources of law
Custom – Custom are those long practices or unwritten rules which have acquired binding or obligatory character. They consist of rules which are generally observed since time immemorial and have now become an integral part of life and code of conduct. The real sanction behind thiz custom is public opinion. Before the emergence of the state, it was public opinion which secured the observance of custom. When state takes up the function of administration of justice, it naturally accepts the pre–existing customs as valid.
Those customs which are non obligatory in nature and are followed generally because of public opinion are called customs without sanctions.
Those customs which are binding in nature and enforced by the state are customs with sanctions which can be further divided into:
General Customs- These type of customs prevail throughout the country of state.
Local Customs- These customs are applicable to a particular part or region of the country.
There are certain prerequisites for essentiality of a valid custom-
4. Exercised as matter of right
5. Reasonable and certain
6. Moral and not opposed to public policy
2.Judicial precedence- It refers to previously decided judgments of the superior courts, such as the High court and the Supreme court, judgments of which are bound to be followed by subordinate courts and people of the state. Precedent means a rule followed or a principle applied by a competent authority under similar facts and circumstances. Its fundamental principle is that, like cases must be treated alike and the superior court must act as an authority which parts decisions for future cases. It is neither a modern legislation nor it is as old as custom. This custom was not prevalent in India in earlier days but in 1950 after the making of Constitution, this rule was embedded. Article 141 of Constitution makes it obligatory for subordinate courts to follow Supreme court’s decisions and Article 225makes it obligatory to follow High Courts' decisions.
This doctrine of judicial precedence is beneficial in maintaining consistency and alike law and order in the whole country. Precedents are judge made laws and are therefore more practical in nature and brings flexibility in the law by moulding and shaping the law according to the changed conditions.
Legislation- The term legislation is derived from the word “legis” which means “law” and “latum” which means “to make” or “to set”. It is the most important source of law as it is backed by sovereign and is directly enacted and recognized by state.
When the laws are directly enacted by the sovereign it is considered as the supreme legislation for example legislature of an independent and sovereign state. It is supreme because no other authority can annul, modify and control it.
Laws which are made by sub ordinate authority of supreme or sovereign authority is sub-ordinate legislature. The origin, validity, existence and continuance of such legislation depends upon the will of the sovereign authority.