Definitions and meanings
Before going into the discussion as what ‘law’ is, it is necessary to know about the sources from which it emanates. And before knowing the sources, one must understand what ‘sources of law’ means. The term ‘sources of law’ has been used in different senses by different philosophers and many different views have been emerged from time to time. The general meaning of the term ‘sources’ is ‘origin’. The philosophers of jurisprudence have a difference of opinion about the sources of law. The analytical school considers that law originates from the sovereign while the followers of the theological school believe God created law. The Vedas and Quran considered a law to have been revealed by God. As there are differences, that is why it is desirable to know the various definitions of the term.
K. Allen defines‘sources of law’ as “agencies through which the rules of conduct acquire the character of law by becoming definite, uniform and compulsory”.
Keeton says Source means “the material, out of which is eventually fashioned, through the activity of judges”.
According to Oppenheim source of law is “the name for a historical fact out of which the rules of conduct came into existence and acquire legal force”.
Holland says the term ‘sources of law’ is used to indicate the quarter from which one obtains the knowledge of the law, e.g., the statute book, the reports, treatises. It is also used to mean the final authority which gives the force of law, i.e., the State. The cause which, as it were, automatically brought into existing rules which have subsequently acquired that force viz., custom, religion, and scientific discussion, is also considered as sources of law sometimes. It also denotes the organ through which the State either grants legal recognition to rules previously unauthoritative or itself creates new law, e.g., adjudication, equity and legislation. Holland provided four different meaning of the term in his inclusive definition and denied any other meaning.
Rupert referred different senses to the term ‘sources of law’. He says,(i) there is the literary source, the original documentary source of our information concerning the existence of rule of law, e.g. law reports; (ii) there are historical sources, the sources-original, mediate or immediate from which the legal rules of law derive their content as a matter of legal history, e.g. works of eminent jurists like Bracton and Coke; Roman Laws, medieval customs. The sense of the ‘source of law’ can be extended to anything which accounts for the existence of a legal rule from the causal point of view. It may include public opinion, moral principles and judicial idiosyncrasies(a mode of behavior or way of thought peculiar to an individual).[i]
John Austin gave three different meanings of the term. First, the term refers to the immediate or direct author of the law, i.e. the sovereign. Second, the term refers to the historical document from which the body of law can be known, e.g., the Digest and Code of Justinian. Third and the last, the terms refer to the causes which have brought into existence the rules which later on acquire the legal force, e.g. the customs, judicial decisions, equity etc.
This view of Analytical school has been criticized by the exponents of Historical School represented by Savigny, Sir Henry Maine, Puchta etc. they contended that law is not made but formed. A common consciousness of the people is the foundation of people manifested by usages, practices, and customs. Customs and usages, and not the sovereign’s commands, are the sources of law.
School of Natural Law considers the law as of Divine origin. Every law is a gift of God and the decision of sages. The Quran, the Hades, the Vedas are prime examples. The law of Lycurgus in Greece had a divine origin. Moses got the Commandments from Jehovah and Hammurabi got his code from the Sun God.
Sociological School of law represents an opposite view and considers that law does not emanate from a single authority, a law is taken from many sources and not from one. Ehrlich opines “At the present as well as any other time, the center of gravity of legal development lies not in legislation, not in juristic science nor judicial decisions, but in society itself.” Duguit says that law is not derived from a single source and the basis of law is public service. There need not be any specific authority in a society which has the power of making laws.
Classification:
Salmond was of the view that the two main sources of law were formal and material. Material sources could be subdivided into legal and historical sources. Legal sources were legislation, precedent, custom, agreement and professional opinion.
- Formal sources are those sources from which the law derives its force and validity. E.g. the will of the State as manifested in statutes and judicial decision.
- Material sources mean the source from which the law derives the matter of which it is composed and not the validity. a)Legal sources of law are authoritative. They are the instrument which creates legal rules. They are the gates through which new principles find their admittance in the legal sphere. They can further be classified into following classes: i) Enacted law, emanating from Legislations; ii) Case laws as Precedents; iii) Customary laws, having authority from Customs; iv) Conventional law, backed by agreements. b) Historical Sources are unauthoritative. They have no legal recognition. They are operated indirectly and mediately. Foreign decisions, juristic writings and other things a judge derives while giving his judgment may be included in this class. Historical sources may become legal by recognition by law as such or incorporation in law.
An Act of Parliament and a work of eminent Jurist are material sources of law but Act of parliament are more authoritative and the work of the Jurist may or may not become so much authoritative law. Similarly, the decisions of Indian Supreme Court are binding precedents for courts in India but the decisions of Supreme Court of USA are not binding in India. They may or may not be so recognized and followed in India.
The classification is criticized by Allen. He was of the view that Salmond gave less importance to historical sources, historical sources, too, carry weight.
Keeton while criticizing Salmond, said that the only formal source of law is the State. But the state is an organization enforcing the law. Therefore, it cannot be considered as the source of law in the technical sense. He gave his own classification of the sources of law:
- The binding sources of law which are binding on judges, and they are not free in their application, e.g. legislation, precedents, and customary laws.
- The persuasive sources of law which are used when there is no binding sources are available on a particular issue, e.g. opinions on professionals, principles of equity, morality.
Conclusion:
Source of law must not be construed as the authority sanctioning or enforcing a law. It should mean the agency from which the law originates, or can say from where the rule of action has come into existence. That is why Giorgio Del Vecchio regards the nature of the man as the source of law.
In the contemporary world, a law is made by legislation, the decisions of apex courts are also law, customs play a vital role too. In absence of these, courts take opinions of renowned personalities on a particular issue, foreign decisions, morals, principles of equity are also taken into consideration where there exists no direct authority. Mainly there belong two classes of sources i.e. binding and persuasive. Binding includes legislation, precedents, and customs while rest sources are persuasive. Once binding sources are discussed and referred to, once binding sources are exhausted.
[i] Precedent in English Law, p. 146
Books referred:
- Mahajan, V.D., Jurisprudence, and Legal Theory, Eastern Book Company, Lucknow, 2016.
- Tripathi, B.N. Mani, Jurisprudence(Legal Theory), Allahabad Law Agency, Faridabad, 2015.
