Sources of Law In jurisprudence– An Analytical Overview

 Definition of Sources of Law

Sources of law are origins or roots from where laws derive their authority. They explain how laws are formed and what gives them legal power.

 Salmond’s Classification of Sources of Law

Salmond divides the sources into two major types:

1. Material Sources

These are the content or material from which laws are developed.

A. Legal Sources (Authoritative)

These are legally recognized and binding in nature.
• Custom – Forms Customary Law
• Precedent – Leads to Case Law
• Legislation – Gives rise to Statutory Law
• Agreement – Forms Conventional Law

B. Historical Sources (Non-authoritative)

These influence the law but are not binding:
• Writings of jurists
• Foreign judgments
• Ancient customs

2. Formal Sources

These provide legal force to rules when they are recognized by courts or included in statute books.
• A rule becomes formal when it gains authority through legislation or judicial recognition.

 Kinds of Legal Sources (According to Salmond)

1. Custom
2. Precedent
3. Legislation
4. Agreement (for Conventional Law)

• Custom as a Source of Law

 Definition by Salmond

“Custom is to society what law is to the state.”

✓ Importance of Custom
• Foundation of early law
• Enhances acceptability of laws

✓ Decline of Custom
• Modern legal systems rely more on legislation and precedent.

 Types of Custom

1. Legal Custom (Binding without agreement)
• General Legal Custom: Applies nationwide
• Local Legal Custom: Applies in a specific region or group

2. Conventional Custom (Based on agreement)
• Binding only if parties agree
• Common in trade and commercial practices

 Tests for Valid Custom

1. Antiquity – Must exist since time immemorial
(Blackstone: Must be older than memory)

2. Continuity – Must be practiced without legal break

3. Peaceful & Open Use – Must not be secretive or forced

4. As of Right – Claimed as a right, not a privilege

5. Reasonableness – Must not be unjust or against public policy
• Lady Wilson v. Willes (1806): Unreasonable custom rejected

6. Opinio Necessitatis – Must be followed with a sense of obligation

7. Conformity with Statutory Law – Cannot conflict with legislation
• Allen: Even ancient custom cannot override statute

8. Consistency with Other Customs – Must not conflict with existing customs

9. Definite Locality or Group – Must be specific and not vague

Theories on Customary Law

1. Historical School (Savigny, Carter)
• Custom = true law
• Courts/legislatures only recognize what already exists

2. Austin’s View
• Custom becomes law only when recognized by the state

3. Salmond & Holland
• Custom is a material legal source, accepted if it meets legal tests

 Precedent as a Source of Law

 Definition

A precedent is a judicial decision that sets a legal principle. It must be followed in future cases by the same or lower courts.

✓ Importance
• Ensures consistency and predictability
• Especially important when no statute exists

Advantages of Precedent
1. Certainty in Law
2. Natural Growth of Law
3. Flexibility and Adaptability

 Disadvantages
1. Rigidity
2. Over-technical approach
3. Slow law reform
• Bentham: “It is dog’s law”

 Hierarchy of Precedents
• Lower courts follow higher courts
• Equal benches follow for consistency
• High Courts must follow Supreme Court rulings
• Smaller benches are bound by larger benches

 Precedents in India

1. Article 141 of the Constitution

“The law declared by the Supreme Court shall be binding on all courts within the territory of India.”

2. High Court Rules
• Single Judge follows other Single Judge
• Division Bench decisions binding on equal strength benches

3. Persuasive Value
• High Court decisions not binding on others, but influential

 Doctrine of Stare Decisis

“To stand by what has been decided.”

• Ensures judicial discipline
• Courts rely on clear hierarchy and recorded judgments

 Theories of Judicial Law-Making

1. Declaratory Theory (Blackstone)
• Judges declare existing law
• Criticized by Bentham & Salmond

2. Judges as Lawmakers
• Judges create law when interpreting new issues
• Lord Denning, Gray, Dicey: Judges shape law daily

 Types of Precedents

1. Authoritative – Binding (e.g., SC decisions)
2. Persuasive – Not binding (foreign or other High Courts)
3. Declaratory – Restate existing law
4. Original – Create new legal principle

 Ratio Decidendi & Obiter Dicta

• Ratio Decidendi = Legal reasoning behind the decision → Binding
• Obiter Dicta = Extra remarks → Not binding but persuasive

 When Precedents Are Not Binding

1. Overruled by higher court
2. Ignorance of law
3. Conflicts with earlier higher court rulings
4. Contradictory decisions of same-level courts
5. Sub Silentio – Decided without proper legal discussion

Legislation as a Source of Law

 Definition by Salmond

Every formal expression of legislative will is legislation.

 Types

1. Supreme Legislation – Parliament (cannot be overruled)
2. Subordinate Legislation – Created under authority of supreme legislation
• Executive, Judicial, Municipal, Autonomous

 Direct vs. Indirect Legislation
• Direct – Acts passed by Parliament (e.g., BNS 2023)
• Indirect – Judicial interpretations (e.g., Article 21 = Right to Privacy)

Advantages of Legislation

1. Clear & Declared
2. Abrogative Power – Can repeal old laws
3. Efficient Division – Legislature makes, courts apply
4. Future-ready – Addresses new problems (e.g., AI, Cybercrime)
• Salmond: “Legislation is like coin; custom is gold in the mine.”

 Delegated Legislation – A Double-Edged Sword

 Definition

When Parliament delegates power to the executive to make rules.

 Examples
• Environment Protection Act rules made by Government

 Need for Delegation
• Technical details
• Faster rule-making
• Shared responsibility

 Criticism

Jurist.                                                                View
Keeton                          “Like ghostly Banquo’s children” – too many rules
Hewart                         “New despotism” – dangerous executive power
Sankey                           Risk of dictatorship
Allen                              Weakens Parliament’s authority

Conclusion

The sources of law form the foundation of every legal system. Whether it’s customs shaped by society, precedents shaped by judges, or legislation shaped by lawmakers, each plays a vital role in the development and application of law.

For judiciary aspirants, understanding these sources not only builds theoretical clarity but also strengthens their interpretation, answer-writing, and analytical reasoning in exams.

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