SOURCES OF LAW

 

SOURCES OF LAW

1. Introduction

It means the origin from where law derives or sources in reverse from where law comes. According to Salmond, there are two types of laws, i.e., formal and material.

Kinds of Sources of law

Different schools of thought have described various theories and several sources of law in English Jurisprudence. Some important sources of law are stated as under:

  

1): Formal Sources     :   The formal sources law, also known as  the Actual or ultimate Sources of law. According to Sir John Salmond, these are the sources from which a rule of law derives its force and validity.

        

2): Material Sources:            The material sources of law are those which gives the matter or content of a principal of law. As the word material suggests, material sources deal with the substance, elements or constituent material of law. Material sources of law tells us what is contained in the law.

 

(State is a force that validates the enforcement of law. Legislative body of state makes laws. Law making body means National Assembly, Congress, Senate, Ordinance made by President or Governor. All have force to make theirs law valid.)

 

 

          Kinds of material Sources

Material source has its two kind.

(a) Historical

(b) Legal source.

 

(a)     Historical sources are those which consist on opinions of sages of ages, thinking of ancient jurist, research work, writing of scholars, references of old people etc. It is important to mention that these sources lack power of enforcement. They do not have binding force. They are not valid being law. Courts are at option to refer and adopt them if seem fit in a particular case.

 

(b) Legal sources are those which have binding force, creator of rights, applicable to all, generally, either derived from legislature in shape of statue, from precedent as case law, from custom being customary law, and from agreements in the form of conventional law.

(i)   Legislation is a law made by a competitive law making authority of state having binding force. It is also called Act of Parliament. Law derived from parliament is called statute. New rules are made through this process. President and Governors can also make laws in the form ordinance.

e.g Anti Terrorism Act, 1997.     Companies Act, 2017 etc.

 

(ii)  Precedent is the judge made law in a situation where a case is brought before Court first time to determine its meaning. Courts lay down laws are called case laws. These laws not only create rights but also applicable to other people.

e.g An example of precedent is the legal decision in Brown v. Board of Education guiding future laws about desegregation.

 

(iii)  Customs are the conduct of people consisting of long standing habits of a majority of people. Practices and habitual conduct form customary law.

 e.g. In India many customs are accepted by law. For example, Hindu marriage ceremonies (such as saptapadi also known as seven steps) are recognized by the Hindu Marriage Act.

 

(iv) Agreement is a set of promise enforceable at law. Agreement creates laws that are recognized and applied by courts. When a right of one is infringed, Contract Act comes into force for remedy. Although agreements are concerned with parties and rest of the world is not bound in case of its breach, but the laws once recognized are applicable to all. Agreement produces conventional law.

e.g an agreement is the decision between two people to share the rent in an apartment.