As pointed out by Aristotle “Man is by nature a social animal”, they survive through the development of interpersonal relationships. This creation of interpersonal relationships requires a set of principles to govern it otherwise the strong and the dominant will subjugate the weak. These principles can be stated as “the law”.
Law has been defined by multiple jurists such as John Austin as “a body of rules determined and enforced by a sovereign political authority”, by Holland as “a rule of external human action enforced by the sovereign political authority” and by Aristotle as “an embodiment of reasons whether in individual or the community”. From this, it is clear that the term law doesn’t have a straightjacket and rigid definition but from these definitions we can understand that law is a set of principles established in a community by an authority and these principles are applicable to the people who belong to that community.
The Indian Constitution has defined the term law as under Article 13(3) as inclusive of an ordinance, order, rule, notification etc. From the Articles 111 and 200 of the Indian Constitution, we can consider law as “an act which is passed by the legislature and assented by the President of India or Governor of a state”.
SOURCES OF LAW
According to the Oxford dictionary, the term source can be defined as the point from which something starts[1], basically the origin of something. In short, “sources of law” can be defined as the origin from where law comes into existence. Lon L. Fuller stated that a judge while deciding upon different cases applies certain rules and these rules can be termed as “sources”.[2]
There are multiple speculations as to this source of law, variety of claims and counter claims are laid down by various schools of law. The positivist law theorists such as John Austin states that it is the sovereign who makes and enforces the law. The natural law theorists state that nature and human reason are the sources of law. F.K. Von Savigny and Henry Maine consider custom as the most important source of law.
CATEGORIES OF SOURCES
There is no fixed category of sources, different jurists have different classification of sources. Therefore, we can categorize sources of law through a general perspective and the perspective of the various jurists.
Classification by the jurists
John Salmond’s perspective
According to John Salmond, the sources of law can be categorized as formal sources and material sources.[3] Formal sources are the sources from which the law derives its validity and force. The only authority from which the law can derive its validity is through the will of the state.[4] Formal sources include legislation, judicial precedents and treaties which are created through the will of the state.
Material sources are the sources that speak about the evolution of the materials which create the principles of law.[5] Material sources include legal sources and historical sources. Historical sources do not hold any sort of binding value, this is because it merely shows the circumstances which lead to the creation of the legal rule and also the circumstances through which law evolved.
Legal sources consist of organs which create legal rules and these include, agreements, precedents, customs and legislation. Legislation is the declaration of a legal rule by a competent authority, customs are practices that are accepted by the society based on national conscience. Agreements are the acceptance of a particular expression by two or more people, this shows their common intention to look into the legal relations.
Finally, judicial precedents are considered as an important source of law and they hold an authoritative value as they are accepted by the judiciary based on multiple reasonings.
John Austin’s perspective
According to John Austin, the origin of law lies in three sources. The first source is the immediate or direct author of law, the sovereign authority that makes the law.[6] The second source is the historical documents from which the origin of the law can be traced. Finally, the legal rules that have brought the law into existence, such as customs, judicial decisions etc.[7]
G.W Keeton’s perspective
According to G.W Keeton the origin of law is through two sources, binding sources and persuasive sources.[8] Binding sources are the sources that are naturally followed by the court such as judicial precedents, legislations, customs etc. and persuasive sources will only come into play when there is an absence of binding sources. These persuasive sources include foreign precedents, professional opinions and principles of morality or equity.[9]
General Sources of Law
These general sources of law are the common sources which are accepted by the general society as the sources of law. These include:
- Legislation
- Judicial precedents
- Customs
Legislation
Following John Salmond’s definition of the term legislation we can state that, legislation is a legal rule decided upon and declared by a competent authority. The positivists believe that legislation is the true source of law and the interpretations made by the judiciary on such legislations shouldn’t be considered as a source of law as it is not a competent authority. They also do not consider custom as a true source of law but the historical school of thought has a contrary view on this, they opinioned that legislations are an evolution of customs and only they can give a proper form to customs, hence they are to be considered as a source of law.
Judicial Precedents
Judicial Precedents are previously decided judgments by superior courts. They are generally considered as an important source of law but a variety of jurists disagree with this. For instance, Otto Stobbe raises the question that judicial precedents are merely the practical application of law then how can the practical application of something be considered as the source of the same thing.[10]
However, G.W Keetone has a contradictory view, he is of the opinion that judicial precedents are a valid source of law. G.W Keetone’s reasoning for this is based on two factors, the first is that the judges hold a high status of authority and the second is that if at all a question of the same principle arises in another case, then the previously decided case can be taken into consideration.
The Judicial Precedent follows the principle of stare decisis, this doctrine states that the policy or principle laid down in the previous judgment will be applicable to other cases unless it is contrary to the ordinary principle of justice.
The Indian constitution also speaks about this principle, it is mentioned in Article 141 of the constitution. According to this article the decisions taken by the Supreme Court are binding on all the courts in India but this not a rigid rule. The principle found by one High Court only has a persuasive value on other high courts but the decision taken by the Supreme Court has a binding value on lower courts.
Custom
According to John Salmond “custom is an embodiment of principles of justice which have appealed to the national conscience.” During ancient times, customs were considered as the only source of law and even now when a law is implemented if there exists a custom which goes against the newly established law, then the people who follow this custom will be given an exception to that particular law.
Various jurists have conflicting views in considering custom as a source of law. John Austin, who is a positivist states that customs are not be considered as a source of law as this is not created from the will of the sovereign. Whereas F.K. Von Savigny considers custom as a source of law, in fact according to F.K. Von Savigny customs are the most important source of law as this follows the will of the people and the will of the people is greater than the will of the sovereign.[11]
Not every custom is considered as a valid custom only those customs which fulfill certain criteria is considered as a valid custom. The criteria are that the custom is to be in existence for a long time, it should be continued in practice, it should be reasonable and shouldn’t be opposed to public policy.[12]
Other than these 3 main general sources of law, there exists other source of law such as:
Human reason and Nature
Natural law theorists are of the opinion that law and morality are deeply interlinked and one doesn’t exist without the other. Morality is a term which is basically used to define the activities that are right and wrong. Therefore, we can concisely put morality as something which arises out of human reason and nature. In short, according to these theorists’ law arises out of human reason.
Justice, Equity and Good Conscience
In certain instances where the judge feels that the law is inadequate, they follow these principles to enact certain laws.
Religious scriptures
There are multiple laws in the world which have originated out of religious scriptures. These include Jewish halakha, Islamic sharia and Christian canon law, there are also certain Hindu laws which can be traced back to religious scriptures.
CONCLUSION
In today’s era where laws are being subjected to maximum scrutiny it is an absolute requirement that the sources of the law should be known. This can be used to provide answers for any sort of question that may arise as the source of the law can be used to look into to find the reasoning behind it. Currently, customs have lost their value and, with the popularization of constitutionalism legislations have become the highly accepted source of law.
[1] https://www.oxfordlearnersdictionaries.com/definition/american_english/origin, accessed on 1st Jan 2020.
[2] Lon L. Fuller, Anatomy Of The Law.
[3] John Salmond, Jurisprudence Or The Theory Of The Law.
[4] https://www.researchgate.net/publication/256059381_The_Persona_of_the_Jurist_in_Salmond%27s_Jurisprudence_On_the_Exposition_of_%27What_Law_is%27, accessed on 2nd Jan 2020.
[5] Id.
[6] http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/Uni-5.pdf, accessed on 3rd Jan 2020
[7] https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=3895&context=ndlr&httpsredir=1&referer=, accessed on 3rd Jan 2020.
[8] G.W Keeton, The Elementary Principles Of Jurisprudence.
[9] http://eprints.lse.ac.uk/60264/1/Duxbury_The-law-of-the-land_2015.pdf, accessed on 3rd Jan 2020.
[10] https://www.jstor.org/stable/754457, accessed on 3rd Jan 2020.
[11] Supra at 3.
[12] https://www.preservearticles.com/education/what-are-the-essential-elements-of-a-valid-custom/18176, accessed on 3rd Jan 2020.
This article has been authored by Anna Mary Mathew, 3rd Year, B.Com LLB (Hons) student at Tamil Nadu National Law University.
