1.

Introduction
2. Law and sources of law
3. Types of sources of law
3.1. Material sources
3.1.1. Legal sources
3.1.2. Historical sources
3.2. Formal sources
3.2.1. Binding sources
3.2.2. Persuasive sources

4. Precedent as a source of law

4.1. The doctrine of Stare Decisis
4.2. Doctrine of Res Judicata
4.3. Ratio Decidendi
4.4. Obiter Dicta
4.5. Types of precedents
4.5.1. Authoritative and Persuasive
4.5.1.1. Absolute authoritative
4.5.1.2. Conditional authoritative
4.5.2. Original and Declaratory
4.6. Factors increasing the authority of a precedent
4.7. Factors decreasing the authority of a precedent
5. Legislation as a source of law
5.1. Types of legislation
6. Custom as a source of law
6.1. Requisites of a valid custom
6.2. Sir Henry Maine’s views on customs
6.3. Types of customs
6.4. Difference between custom and prescription
7. Conclusion
8. References

Introduction
The word ‘Jurisprudence’ is derived from the Latin word jurisprudentia, which means science or
knowledge of law. It is a very vast area of study and it consists of several ideologies and theories on how
law has been made. It also includes the relationship of law with individuals and other social institutions
within the scope of its study. There are various sources from which we derive law. Several jurists and
scholars have attempted to classify the sources of law. However, the most common sources in all these
classifications are legislations, judicial precedents, and customs.

Law and sources of law

According to John Chipman Grey, who was a Harvard Law School professor, “the Law of the State or of
any organised body of men is composed of the rules which the courts, that is the judicial organ of the body,
lays down for the determination of legal rights and duties”. Though Gray’s definition has been criticised for
being narrow, he distinguished law from the sources of law. According to him, law has evolved through
case laws and sources of law are where we get the content and validity of law from. Essentially, law
refers to the rules or code of conduct and its sources refer to the materials from which it gets its content.
Types of sources of law
John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified
the sources of law into mainly two categories,i.e., material sources and formal sources.

Material sources
Material sources of law are those sources from which the law gets its content or matter, but not its
validity. There are two types of material sources which are legal sources and historical sources.

Legal sources
Legal sources are the instruments used by the state which create legal rules. They are authoritative in
nature and followed by courts of law. These are the sources or instruments that permit newer legal
principles to be created. According to Salmond, legal sources of English law can be further classified into
four categories-

Legislation,

Precedent,

Customary law, and

Conventional law.

Historical sources
Historical sources are sources that influence the development of law without giving effect to its validity or
authority. These sources influence legal rules indirectly. The difference between legal and historical
sources is that all laws have a historical source but they may or may not have a legal source. Decisions
given by foreign courts serve as an example for this kind of source.

Formal sources
Formal sources of law are the instruments through which the state manifests its will. In general, statutes
and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity
from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law
into the following:

Binding sources
Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or
legislation, judicial precedents, and customs.
Persuasive sources
Persuasive sources are not binding but are taken into consideration when binding sources are not
available for deciding on a particular subject. Examples of such sources are foreign judgements,
principles of morality, equity, justice, professional opinions, etc.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a
legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a
particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases
with similar facts. Some of the most influential judicial precedents in India are the following:

1. Kesavananda Bharati v. the State of Kerala (1973): This case is what introduced the concept of the
basic structure doctrine in India, protecting the fundamental features of the Indian Constitution from
being removed.

2. Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the right to die does not come
within the scope of Article 21 of the Indian Constitution. The court affirmed that every person has the
right to die with dignity. The court also stated that the right to die in a dignified manner is not the same
as the right to die in an unnatural way.

3. Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)(c) of the Passports Act, 1967
as void since it violated Article 14 and 21 of the Indian Constitution.

4. Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of 50% for reservation of
backward classes. It also held that the criteria of classifying groups as backward classes cannot be
limited to economic backwardness.

The doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis
means to not disturb the undisturbed. In other words, precedents that have been valid for a long time
must not be disturbed.

In India, subordinate courts are bound by the precedents of higher courts, and higher courts are bound by
their own precedents. But when it comes to High Courts, the decision of one High Court is not binding on
the other High Courts. Their decisions are binding on the subordinate courts. In cases where there are
conflicts between decisions of court with the same authority, the latest decision is to be followed. As per
Article 141 of the Constitution of India, the Supreme Court’s decisions are binding on all the courts across
the country. However, the Supreme Court’s decisions are not binding on itself. In subsequent cases where
there are sufficient reasons to deviate from the earlier decision, the Supreme Court can do so.

Doctrine of Res Judicata

The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has been
decided upon, the parties are barred from raising the same issue in courts again, unless new material
facts have been discovered. They can’t raise another issue arising from the same claim either since they
could have raised the same in the previous suit.

Ratio Decidendi
As per Salmond, a precedent is a judicial decision that contains a legal principle with an authoritative
element called ratio decidendi. Ratio decidendi means reason for the decision. Whenever a judge gets a
case to decide on, he has to adjudicate it even when there is no statute or precedent concerning it. The
principle that governs such a decision is the reason for the decision which is also called ratio decidendi.

Obiter Dicta
The term obiter dictum means mere say by the way. This term is used to refer to statements of law that
are not required for the case at hand. A judge may in the judgement of a case declare some legal
principles to be applied in a hypothetical situation. It does not have much impact or authority. However,
the subordinate courts are bound to apply the principles.

Types of precedents

Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by subordinate courts whether they
approve of it or not. They create direct and definite rules of law. They fall into the category of legal
sources of law. Persuasive precedents on the other hand do not create a binding obligation on the judges.
Persuasive precedents can be applied as per the discretion of the judge.

Authoritative precedents can be classified into the following two types:

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it

cannot be disobeyed even if it is wrong.
Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain
special circumstances as long as the judge shows the reason for doing so.

Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing
law in a judgement. It is a mere application of law. An original precedent creates and applies a new law.

Factors increasing the authority of a precedent

1. The number of judges constituting the bench that makes the decision.

2. A unanimous decision has more weight.

3. Approval by other courts, especially the higher courts.

4. The enactment of a statute that carries the same law subsequently.

Factors decreasing the authority of a precedent

1. Abrogation of judgement by reversal or overrule of a higher court.

2. Abrogation of judgement by a statutory rule enacted subsequently.

3. Affirmation or reversal of decision on a different ground.

4. Inconsistency with the previous decision of a higher court.

5. Inconsistency with previous decisions of the court of the same rank.

6. Inconsistency with already existing statutory rules.

7. Erroneous decision.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the
most important sources of law in jurisprudence. The word legislation is derived from the words legis and
latum, where legis means law and latum means making.

Types of legislation
According to Salmond, legislation can be classified into two types- Supreme and Subordinate.

1. Supreme legislation

Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The
body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by
another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by
the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to
be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court.

2. Subordinate legislation

Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The

subordinate body must have derived its law-making authority from a sovereign law-making body. It is
subject to the control of the supreme legislative body. The following are the different kinds of subordinate
legislation:

Executive legislation: This is a form of subordinate legislation where the executive is granted or
conferred certain rule-making powers in order to carry out the intentions of the legislature.

Colonial legislation: Many territories across the globe were colonised by Britain and such territories
were called colonies. The legislation passed by the legislature of such colonies was subject to the
control of the British Parliament.

Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs
and functioning of courts.

Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-
laws.

Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned

with bodies like universities, corporations, clubs, etc.

Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the
parliament through principal legislation. A principal act may create subsidiary legislation that can
make laws as provided in the principal legislation.

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In
primitive societies, there were no institutions that acted as authority over the people. This led to people
organising themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They
started developing rules with coordinated efforts to make decisions. They eventually started recognising
the traditions and rituals practised by the community routinely and formed a systematised form of social
regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by
different religious communities. Additionally, several communities belonging to the Scheduled Tribes
category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu
Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act.
Requisites of a valid custom
1. Reasonability: The custom must be reasonable or practical and must conform with the basic morality
prevailing in the modern-day society.

2. Antiquity: It must have been practised for time immemorial.

3. Certainty: The custom must be clear and unambiguous on how it should be practised.

4. Conformity with statutes: No custom must go against the law of the land.

5. Continuity in practice: Not only the custom must be practised for time immemorial, but it should also
be practised without interruption.

6. Must not be in opposition to public policy: The custom must adhere to the public policy of the state.

7. Must be general or universal: There must be unanimity in the opinion of the community or place in
which it is practised. Hence, it should be universal or general in its application.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”.
Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The
following are the different stages of development of law according to Henry Maine:

1. At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be
messengers of God.

2. At the second stage, following rules becomes a habit of the people and it becomes customary law.

3. At the third stage, knowledge of customs lies in the hands of a minority group of people called the
priestly class. They recognise and formalise customs.

4. The final stage is the codification of customs.

Types of customs
1. Customs without a binding obligation

There are customs that are followed in society that do not have a legal binding force. Such customs are
related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not
legal consequences.

2. Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding obligation. They are not
related to social conventions or traditions. There are mainly two types of customs with binding
obligations- Legal customs and Conventional customs.
1. Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal
consequences if not followed. Two types of legal customs are general customs and local customs.
General customs are enforced throughout the territory of a state. Local customs on the other hand
operate only in particular localities.

2. Conventional customs: Conventional customs are those customs that are enforceable only on their
acceptance through an agreement. Such a custom is only enforceable on the people who are parties
to the agreement incorporating it. Two types of conventional customs are general conventional
customs and local conventional customs. General Conventional Customs are practised throughout a
territory. Local Conventional Customs on the other hand is restricted to a particular place or to a
particular trade or transaction.

Difference between custom and prescription

The main difference between the two is that custom gives rise to law and prescription gives rise to a
right. Custom is generally observed as a course of conduct and is legally enforceable. Prescription refers
to the acquisition of a right or title. When local custom applies to society, the prescription is applicable
only to a particular person. For example, when a person X’s forefathers have been grazing their cattle on a
particular land for years without restriction, X acquires the same right to graze his cattle on the land. The
right acquired by X is called a prescription. For a prescription to be valid, it must be practised from time
immemorial. In India, uninterrupted enjoyment for 20 years is essential to acquire a right to light and air
as per the Indian Easements Act, 1882.

Conclusion
To conclude, sources of law in jurisprudence can be classified on the basis of several grounds. But the
most notable or common classification divides it into legislation, precedent, and custom. Precedent
refers to the previous judicial decisions. The legislation refers to the statutory rules enacted by the
legislature. Custom refers to the age-old practises of a community that has solidified its presence so
much that it becomes the law. Though legislation seems to be the agency through which we get laws, it is
just the primary source. Many laws that we have are a reflection of what we as a society have followed
for generations. Also, many cases show how sometimes the law of the land is inadequate or incapable of
predicting what issues could arise in subsequent disputes. This calls for the judiciary to elaborate or
interpret the law of the land, setting judicial precedents for several issues.