In jurisprudence, one does not study the statutory law but examines the essence of the law. It does not refer to the study of law but the reason why the law has been formed. Jurisprudence is the analysis of the ‘Theory and Philosophy of Law’.
Sources of law refer to the origin of the different laws and regulations. Even if the common sources of law can be traced to customs, precedents, etc., each jurist has laid down a different viewpoint on the sources of law in jurisprudence. The legal experts perceive law from different angles, and hence, we can find a wide range of classification of sources of law. Even if the jurists differ in terms of classification, one can observe that law is derived from similar kinds of sources. There should not be a reason for the dispute.
Sources of Law according to jurists
Austin, an eminent legal scholar, has provided three meanings of the term law; Sovereign authority, Codes of law, and Customs and legislations.
According to Holland,
The quarter from which we seek knowledge about a particular law is the source of law.”
He stresses the agencies and explains how the rules of conduct become uniform, stable, and compulsory to follow.
Salmond, an English jurist, has laid down two main categories as sources of law; Formal sources and Material sources.
It refers to the statutes or the final decisions of the Court. They dictate the validity and enforceability of law.
These do not dictate the validity but influence the matter of law. Material sources are further segregated into two types; Legal sources and Historical sources.
The historical sources are not authoritative in nature and focus on the evolution of the principles of law. Examples of historical sources are legal writings, opinions of eminent jurists, foreign judgments, and the constitution.
The legal sources are authoritative in nature and form an important part of the law by which the rules are created and followed by the courts. Examples of legal sources are legislations, precedents, customs, and conventional law.
The legal sources are further divided into the following categories:
It is a direct law source made by the authorities. In modern times, legislations are vital as they exist in all countries of the world. The Legislature makes the legislation revise and update them whenever needed.
The legislation is of two types; Supreme legislation and Subordinate legislation.
It is laid down by the superior authority of the state. No one changes this legislation by any means. Examples– Parliamentary acts, ordinances, laws enacted by the governor of a state.
It is enacted by a subordinate authority and not by the sovereign state. It can be repealed, amended, or changed by a superior law. Examples are rules, orders, notifications released by municipal authorities or high courts.
Subordinate legislation is a broad term and is further divided into the following five categories.
The laws enacted for the colonies by their controlling authority are colonial legislations. For instance, India was a colony of the British Government. Hence, any law enacted by the British Government for India is known as colonial law.
When the law-making function is given to the government departments, it is known as executive legislation.
When a judicial authority such as a superior court makes a rule, it falls under judicial legislation.
The laws enacted by a municipal or corporation for districts are known as municipal legislations.
When autonomous bodies such as universities enact rules for their own purpose, they are known as autonomous legislations.
Being an essential source of law, the origin of precedent cannot be traced to customs. They are not even as modern as legislation. The judgment of the court is known as precedent. It is the right of implied legal principles.
It is based on the doctrine of stare decisis, which means that all cases must be decided alike. The legal cases in the future should be decided as per the pre-decided cases by the judge in the court of law. When the facts of the next case are similar to the previous ones, the case should be decided accordingly.
This principle ensures uniformity in decisions, and there are no biases in the decisions made by the court. It also saves time for the judges and ensures certainty in their decisions.
The four types of judicial precedents are:
The decisions that make laws are known as original precedents. In this, the new laws are created and applied in several legal matters.
When the above set of laws that are formed in the original precedents are applied or followed in legal matters then it is known as declaratory precedents.
An authoritative precedent is more powerful as the judge has no other choice than to consider it. It does not matter whether the judge accepts it or not. For instance, the decisions of the superior courts, such as the Supreme Court, are always authoritative precedents. Authoritative precedents are further categorized into absolute precedents and conditional precedents.
A persuasive precedent does not come with a compulsion to follow the judgment given by the judge. He can refuse the precedent. For instance, the High Court decisions of a state act like persuasive precedents in the other high courts.
Customs are the oldest source of law that refers to the traditions and habits of the society and not the formal rules. They refer to the code of conduct followed by the people of a specific community, and it is mainly observed to ensure uniformity.
Definition of Customs
According to Holland,
Custom means the course of conduct that is commonly observed.
According to Austin,
Customs are a standard of direct that the sovereign suddenly sees and does not conform to the law set by the political superior.
Elements of a valid custom
- Customs must be ancient and must have been in use for years, as stated in the case Gokul Chand v. Praveen Kumar.
- The customs should be in use continually and must serve a clear meaning, as stated in Hampton v. Hono.
- The customs must have a valid reason to be legally binding and must be based on the principles of justice and equality.
- Customs must be in alignment with the moral principles, public interest, and other customs of the same region. They should not conflict with each other.
- Customs must not violate the fundamental rights of a person or go against legal rights.
- There should be no force or coercion applied to practice a custom.
Following are the types of customs:
- Custom without sanction- These customs are not mandatory and are followed because of the common public opinion.
- Custom with sanction- These are mandatory and are enforced by the State. These are further divided into Legal customs and conventional customs.
- Legal Custom- This is absolute and has the force of law. It is further divided into two types: General customs or Customs for all and Local customs or Special customs.
General customs are applicable throughout the country, while local customs are applicable in a specific area or region.
is applicable to the parties in a trade or an agreement. For instance, the agreement between the landlord and tenant.