SOURCES OF LAW: LAW: A GENERAL OVERVIEW
After having known a thing as to what it is, the other curiosity that arises is how it came to be? The same is true about law also. After After discussing what law is, it is desirable to know what are the sources of law. The term ‘source’ has been interpreted by different writers in various ways and it has been used in different senses. It has been given more than one meaning. The epression ‘source of law’ may mean the origin from which rules of human conduct came into eistence and derived legal force or binding character. !ince the origin, growth and basis of law has been different in different s tages of social development, different "urists have pointed out different sources as more authoritative. a uthoritative. According to some "urists, "urists , source of law is the society itself while for others will of the sovereign is the eclusive source of law.
DIFFERENT VIEWS: HOLLAND: According to him, the term ‘source of law’ has been used in a variety of
senses# The material from which all knowledge of law is obtained. $ample# books, law reports etc. The ultimate authority which gives law its binding force i.e. the sovereign. The caue which were responsible to bring into eistence the rules which eventually ac%uired the force of law. $ample# custom, religion etc. The a!e"cy o# or!a" through which state creates law or grants legal sanction to eisting rules. $ample# legislation etc. AUSTIN: &e gives three meanings of the term ‘source of law’# Direct or imme$iate author: the person or body of persons by whom the rule
was originally formulated giving it the force of law. !uch immediate sources can be# 'egislature or "udiciary. "udiciar y. A political subordinate acting as a legislature. The persons whose conduct forms a custom. The persons who by contract submit themselves to a rule of conduct towards each other.
Hitorical Docume"t: The earliest or original eisting documents from which
the body of law may be known. $ample as far as &indu law is concerned, (anu’s )ode and commentaries of *a"navalkya are eample of this kind of source. Caue: It denotes the causes which have brought into eistence rules which have subse%uently ac%uired the force. $ample# custom. SAVIGN%: According to him, source of law meant the material from which law
derives not its validity but the content. Therefore, custom is the source of law. GRA%: According to him, source of law meant legal and non+legal materials upon
which "udges fall back in fashioning the rules which make up the law. !uch sources are# Acts of 'egislative organs. udicial -recedents. pinions of eperts. )ustoms. -rinciples of morality. Therefore, writers differ in the meaning, interpretation and implication of the term ‘source of law’. CLASSIFICATION OF SOURCES: Salmo"$ classified the sources of law into two# •
&aterial Source: The sources which provide matter and not the validity. &e further
classified material sources into two# Le!al Source: The sources which are recognised as such by the law and allowed
by courts as of right. These sources are authoritative. !uch sources are# 'egislation /enacted law0. • -recedent /case law0. • )ustom /customary law0. • )onventional 'aw /1ased on agreement0. • Hitorical Source: These sources influence more or less etensively the cause of legal development but they have no authority. 2urther they lack formal recognition
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by the law. !uch sources are# writings of "urist, books and foreign "udgments etc. Formal Source: The sources from which a rule of law derives its force and validity. Therefore, the will of the state as manifested in the statutes are the formal source of law.
Salmo"$ said that, 3legal sources are the only gates through which new principles can find
entrance into the law and historical sources operate only mediately and indirectly...they are merely links in the chain of which ultimate link must be some legal source.4 &owever, classification given by !almond has been criticised# •
Dr' Alle" criticised the classification on the ground that !almond undermined the
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importance of historical sources. (eeto" criticised !almond classification regarding formal source. According to him, in modern times, the only formal source of law is the state. 1ut state is an organisation enforcing law and therefore it cannot be considered as a source of law in technical sense. 5eeton gave his own classification of law# )i"$i"! ource o# la*: They are binding and include legislation, "udicial
precedent and customary law. +eruai,e ource o# la*: These sources are useful when there are no binding sources on a particular point. !ome of such sources are professional opinions and
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principles of e%uity. $ven the editor of !almond’s urisprudence, +'-' Fit.!eral$/ was not satisfied with the !almond classification of sources of law into formal and material and therefore in the 67th edition of the book he omitted this classification and discussed only the legal and historical sources of law.
SOURCE OF LAW: INDIAN +ERS+ECTIVE
-rior to the 1ritish rule in India, &indus and (uslims who constituted the ma"or population were governed by their personal laws, namely, &indu law for &indus and (ohammedan law for (uslims. Hi"$u La* reco!"ie$ #our ource o# la*: Sruti /what is heard0. Smriti /what is remembered0. Co"$uct o# the ,irtuou' O"e0 o*" co"cie"ce'
&ohamme$a" La* alo reco!"ie #our ource o# la*:
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1ura"' Su""at /Traditions0. I2ma /consensus of opinion0. (iya /analogical deductions0.
