Sources of Law - A General Overview

SOURCES OF 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 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 expression source of law may mean the origin from which rules of human conduct
came into existence and derived legal force or binding character. Since the origin, growth and
basis of law has been different in different stages of social development, different jurists have
pointed out different sources as more authoritative. According to some jurists, source of law
is the society itself while for others will of the sovereign is the exclusive 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. Example: books,
law reports etc.

The ultimate authority which gives law its binding force i.e. the sovereign.
The causes which were responsible to bring into existence the rules which
eventually acquired the force of law. Example: custom, religion etc.

The agency of organ through which state creates law or grants legal sanction
to existing rules. Example: legislation etc.
AUSTIN: He gives three meanings of the term source of law:

Direct or immediate author: the person or body of persons by whom the rule
was originally formulated giving it the force of law. Such immediate sources can
be:
Legislature or judiciary.
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.
Historical Documents: The earliest or original existing documents from which

the body of law may be known. Example as far as Hindu law is concerned,
Manus Code and commentaries of Yajnavalkya are example of this kind of
source.
Causes: It denotes the causes which have brought into existence rules which have
subsequently acquired the force. Example: custom.
SAVIGNY: 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.
GRAY: According to him, source of law meant legal and non-legal materials upon
which judges fall back in fashioning the rules which make up the law. Such sources
are:
Acts of Legislative organs.
Judicial Precedents.
Opinions of experts.
Customs.
Principles of morality.
Therefore, writers differ in the meaning, interpretation and implication of the term source of
law.
CLASSIFICATION OF SOURCES:
Salmond classified the sources of law into two:
Material Sources: The sources which provide matter and not the validity. He further
classified material sources into two:
Legal Sources: The sources which are recognised as such by the law and allowed
by courts as of right. These sources are authoritative. Such sources are:

Legislation (enacted law).
Precedent (case law).
Custom (customary law).
Conventional Law (Based on agreement).
Historical Sources: These sources influence more or less extensively the cause of
legal development but they have no authority. Further they lack formal recognition
by the law. Such sources are: writings of jurist, books and foreign judgments etc.
Formal Sources: 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.
Salmond said that, legal 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.
However, classification given by Salmond has been criticised:
Dr. Allen criticised the classification on the ground that Salmond undermined the
importance of historical sources.

Keeton criticised Salmond classification regarding formal source. According to him,
in modern times, the only formal source of law is the state. But state is an organisation
enforcing law and therefore it cannot be considered as a source of law in technical
sense. Keeton gave his own classification of law:
Binding source of law: They are binding and include legislation, judicial
precedent and customary law.

Persuasive source of law: These sources are useful when there are no binding
sources on a particular point. Some of such sources are professional opinions and
principles of equity.
Even the editor of Salmonds Jurisprudence, P.J. Fitzgerald, was not satisfied with
the Salmond classification of sources of law into formal and material and therefore in
the 12th edition of the book he omitted this classification and discussed only the legal
and historical sources of law.
SOURCE OF LAW: INDIAN PERSPECTIVE

Prior to the British rule in India, Hindus and Muslims who constituted the major population
were governed by their personal laws, namely, Hindu law for Hindus and Mohammedan law
for Muslims.
Hindu Law recognised four sources of law:
Sruti (what is heard).

Smritis (what is remembered).
Conduct of the virtuous.
Ones own conscience.
Mohammedan Law also recognise four sources of law:
Quran.
Sunnat (Traditions).
Ijma (consensus of opinion).
Kiyas (analogical deductions).

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SOURCES OF LAW: A GENERAL OVERVIEW

law reports etc.

eventually acquired the force of law. Example: custom, religion etc.

AUSTIN: He gives three meanings of the term source of law:

Historical Documents: The earliest or original existing documents from which

by courts as of right. These sources are authoritative. Such sources are:

importance of historical sources.

precedent and customary law.

SOURCE OF LAW: INDIAN PERSPECTIVE

Sruti (what is heard).

Mohammedan Law also recognise four sources of law:

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