Useful Notes on the Sources of Law

Austin refers to the term ‘sources of law’ in the following three meanings:

1. Direct or Immediate Author:

The immediate author of law is the person or body of persons by whom the rule was originally formulated, giving it the force of law.

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The immediate sources are: (a) the sovereign acting as legislature or judiciary; (b) a political subordi­nate acting either as a legislature or judiciary; (c) the persons whose conduct forms a custom; and (d) the persons who by contract submit themselves to a rule of conduct towards cache other.

2. Historical Documents:

The earliest extant document in which the rule of the body of the law can be found, e.g., the Digest Code of Justinian in Rome, but not the commentaries on them.

3. Causes:

Causes lo which the laws owe their existence, such as legislation, adjudication, custom, religion, equity, etc.

Dr. Allen objects lo the use of the term ‘source of law’ in the sense assigned by Austin. According to him, a source of law is that from which law 1s derived. In the sense used by Austin customary law cannot be said to have been derived from the Slate or sovereign. Such law from rules of conduct or practices of the people long observed and the State only superimposes a formal sanction.

According to Holland, the obscurity, which has involved the whole subject of the original law, is largely due to the ambiguous uses of the term ‘sources’.

Such uses are fourfold; viz.,

(i) sometimes the word is employed to denote the quarter whence we obtain our know l­edge of the law, e.g., whether from the statute-book, the reports, or esteemed treatises;

(ii) sometimes to denote the ultimate authority which gives them the force of law, i.e., the stale;

(iii) sometimes to indicate the causes which have brought into existence, rules which have subsequently acquired that force, viz., custom, religion, scientific discussion; and

(iv) sometimes lo indicate the organs through which the Stale either grants legal recognition to rules previously un­authoritative, or itself creates new law, viz., adjudication, equity, leg­islation.

Salmond originally divided the sources of law into formal and material. According to him a formal source is that from which a rule of law derives its force and validity. The material source is that from which is derived the matter and not the validity of the law. It is in the material sense that the expression is to be understood here. Material sources are divisible into two classes legal and historical.

The legal sources are those which are recognised as sources of law by the law itself through the mouth of the courts of law (e.g. Law of Contracts, Indian Evidence Act, Indian Penal Code), precedent (judge-made law), customary law and conventional law. Historical sources are law des­titute of a legal recognition and are unauthoritative, e.g., a book written by a jurist.

The learned editor of the 10th edition of Salmond’s book on Jurisprudence has excluded the formal sources altogether on the grounds that the words ‘formal source’ convey nothing and there is difficult to attach the will of the State to this expression. He has maintained only the legal and historical sources of law.

Salmond has classified the legal sources of English Law into four divisions (1) Enacted Law, or Statute Law, having its source in legislation; (2) Case Law having its source in princely; (3) Custom­ary Law, having is source in custom; and (4) Conventional Law, having its source in agreement.

Professor keel on also uses the term “Source of law” to mean the materials out of which the law is eventually fashioned through the activity of judges.

He regards the following sources of law as import­ant, viz. (i) legislation, (ii) judicial precedents, (iii) custom, (iv) prin­ciples of morality or equity and (v) professional opinion. The first three are binding sources, while the last two terms as persuasive sources.