A source of law means either the manufacture or origin of a law or the ability to impart a rule or norm the quality of law. The term “source” is used to connote those agencies by which rules of conduct acquire the character of law by becoming objectively defined, uniform, and, compulsory.
Salmond classified the sources of law into two categories—
(a) Legal or formal sources – These are those sources which are recognised as such by the law itself and are authoritative. From these sources, a rule of law derives its force and validity.
Examples-Constitution, statutes, precedents (court’s decision) and customs recognised by the law.
(b) Historical or material sources – These are the sources which are lacking recognition by the law and are unauthoritative. Thus, unlike legal sources which are sources not only in fact but also in law, the historical sources are sources in fact only. From these sources, a rule of law derives the matter but not the validity.
Examples- legal writings, juristic opinions or even foreign Constitutions, statutes, etc.
The decision of the court is a legal source while the ultimate materials on which it is based are historical sources.
Sources of law differ from system to system and society to society. Thus, while in common law system, Constitution, legislation, precedents and custom are recognised as the legal sources of law, in civil law countries, legislation, customary law and treaties are often declared to be the only sources of law. Since in India, we have common law system, Constitution, legislation, precedents and customs are our legal sources of law. In some matters, personal law (koran, smrities, etc.) is also a source of law.
Also Read Law and Morality
Also Read Concept of Law
Constitution differs from legislation in so far as legislation finds its authority in the Constitution while the Constitution is the ultimate source and its authority lies in the political fact that it has been so accepted.
A Constitution may be the fundamental law of the land or it may simply be a political document. Our Constitution is the fundamental law of the country. Its provisions lay down binding rules, violation of which can be checked and remedied through court action. But there are Constitutions like that of China, which simply lay down the rules for the guidance of the governance and their violation may be checked only at the political level.
Custom is the oldest and most important source of law, though its importance is now diminishing with the growth of legislation and precedent. Custom means uniformity of conduct of people under like circumstances. Certain practices are accepted by the people as good or beneficial and they go on practising them which in course of time acquire the force of law. It is presumed that customs must have been followed on account of their utility and also because they enjoyed the express or implied sanction of the society.
Custom played a considerable role in the evolution of early law. It provided material for other law-constituting agencies, especially legislation. Psychologically it is easier to secure obedience for a code if it is based on an established custom. It is too great an effort to create law de novo (afresh). It was once even thought that custom could effectively abolish a statute. At one time ruler did not enjoy the power to make new law but only enforce the existing one as revealed in immemorial customs of the land, holy scriptures, etc.
Custom may be special or general. Former may include a family custom amongst the members of a particular tribe, a local custom obtaining in a particular locality. General custom, on the other hand, binds all the persons within a community. Common law of the England was once thought to be derived from customary law, but now it is established that it is derived from judicial precedents.
According to Savigny, customary law is the real law of the people, while the rest is only a superimposition. This is true because good and successful laws represent the legitimate aspirations of the people. However, in the present day highly technical and mixed society, one cannot completely rely on custom as a source of law. It is only in traditional and tribal societies the custom is the major source of law. In the contemporary society its inadequacy to meet the fast changing situations is beyond doubt in so far as customs cannot suddenly be created to meet a situation.
Essentials of a valid custom
There is more than one reason for attributing to custom force of law. Firstly, it is frequently the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility. Secondly, the existence of an established practice is the basis of a rational expectation of its continuance in the future. It is, however, not the development of any practice, as such, that qualifies to be a legal custom; say, of wearing black at funerals.
To acquire the force of law or become a source of law, custom must satisfy the following conditions:-
(i) Custom must be ancient – A custom cannot be created in a day. It must be of long standing. Unlike England where a custom should have existed from time immemorial, in India long usage or observance is enough and thus even a 20 year old custom may be recognized.
Under English law, however, living memory is now substituted, by legal fiction, for legal memory. Now if a person proves the existence of a particular practice for a substantial period, i.e., if no living person could show the beginning of that practice in his life-time, existence of a custom since 1189 is presumed, unless rebutted. In India, the courts have sanctioned a custom on proof of a period of longevity varying between 20 to 50 years.
(ii) Custom must be continuous, certain and precise – The custom must have been in use continuously and it should not be vague or indefinite. Its existence must be proved by clear and unambiguous evidence. Imprecision tends to confuse the very content of law and also leads to divergent interpretations.
(iii) Reasonableness – A custom is reasonable if no good legal reason can be assigned against it. Further, it is not that a custom will be admitted if reasonable, but that it will be admitted unless it is unreasonable.
The reasonableness of a rule is not to be judged by the contemporary judicial standards, but by those prevailing at the date of its inception. A custom in order to be deprived of legal efficacy must be so obviously and seriously repugnant to right and reason that to enforce it as law would do more mischief than that which would result from the overturning of the expectations and arrangements based on its preserved continuance.
A custom among Jat Sikhs of Punjab which permitted a woman expelled and deserted by her husband to remarry was held reasonable; but not the practice which authorised a woman to desert her husband at pleasure with a view to marry someone else. Similarly a customary rule prejudicial to a class and beneficial to few cannot be reasonable viz. begar by harijans for higher castes. Immoral customs and those abhorrent to decency are also unreasonable viz. a custom permitting marriage with daughter’s daughter.
(iv) Conformity with statutory law – No custom however old or reasonable can stand if it conflicts with a statute or legislation.
‘By no length of desuetude’, observes Salmond, ‘can a statute become obsolete and inoperative in law and by no length of contrary usage its provisions can be modified in the smallest particular’.
(v) Custom must have obligatory force – The custom must have been enjoyed “as of right”. Because without this it cannot be said that it exerts obligatory pressure to conform. The custom must have been followed openly, without the necessity for recourse to force.
What distinguishes a legal custom from a mere convention is the opinio juris sine necessitatis – the feeling of being bound. The stark test of a custom is the growth of conviction that it shall be followed whenever a proper occasion arises, for without this there is no evidence that it exerts obligatory pressure to conform. Facultative or optional enjoyment of a practice robs it of the vitality so essential to transform it into a binding rule of law.
Usage and Custom – The terms are often used interchangeably, but there is a clear distinction between the two. Usage represents the twilight stage of custom. Custom begins where usage ends. ‘A custom is such a usage as hath obtained the force of law’.
(vi) Consistent with morality and public policy – Custom must not be inconsistent with morality, public policy and other customs in some area. In a case, the court refused to recognize a custom claimed by prostitutes of adopting daughters because it would perpetuate prostitution.
Today, legislation is the most important and biggest source of law. Term “legislation” means the making or the setting of law. Legislation is that source of law which consists in the declaration of legal rules by a competent authority e.g. Parliament or State legislatures. Thus legislation is a deliberate process of legal evolution which consists in the formulation of norms of human conduct in a set form through a prescribed procedure by agencies designated by the Constitution.
Legislation may be of two kinds – supreme and subordinate legislation. When the sovereign authority itself makes the law, it is supreme legislation. Subordinate or delegated legislation is by any other authority than the sovereign, by virtue of powers delegated to it by the sovereign, and subject to the control of sovereign.
In our legal system, Acts of Parliament and the ordinances and other laws made by the President and Governors, are supreme legislation. Examples of subordinate legislation includes rules, regulations, bye-laws, orders, directions, notifications, etc. made by various authorities such as corporations, municipalities, universities, government departments, Supreme and High courts, etc. The amount of subordinate legislation far exceeds the amount of supreme legislation.
The supreme legislation is not superior to the Constitution and it is subject to various constitutional limitations e.g. a legislation which infringes the fundamental rights of citizens is invalid. Further, supreme legislation cannot delegate the “essential” legislative functions which relate to the making of policy.
Advantages and disadvantages of legislation
Salmond said: “So great is the superiority of legislation overall the other methods of legal evolution that the tendency of the advancing civilization is to acknowledge its exclusive claim, and to discard the other instruments as relics of infancy of law”.
(i) Certainty and precision – Statute law leads to greater certainty as it is clear, easily accessible and knowable as compared to other sources of law a coin of the realm ready for immediate use.
However, multiplicity of statutes on the same issue, with amendments and alterations superimposed makes it a disjointed series of particular rules. Moreover, modern statutes are so numerous and so complicated that an ordinary citizen knows little of their breach till he actually lands in trouble for their violation.
(ii) Instrument of legal reform – The creative power of legislation is beyond doubt. It is not merely a source of law but as a destructive and reformative agent it has no equivalent. Legislation takes into account the needs of present-day society. Thus, in recent times, legislations like Dowry Prohibition Act, Environment (Protection) Act, Consumer Protection Act, etc. have been enacted. Legislation may be resorted at any time to change the existing law or create a new law.
However, this dynamism of legislation appears in sharp contrast to the rigidity it introduces in law. The legislation must apply equally in disregard of needs of individual justice in a particular case.
(iii) Conforms to natural justice – Legislation satisfies the requirements of natural justice since laws here are known before these are enforced. Then statutes are prospective in operation
leaving vested rights untouched. However, at times, statutes are made retrospective.
Conclusions – Legislation is, undoubtedly, the most powerful instrument of legal growth. It is indispensable, keeping in view the complexities of modern society, for the efficient regulation of human relationships in our days.
In a common law system like ours precedents constitutes a very important source of law. The term “precedent” refers to a previous instance or case which is, or may be taken as an example or rule for subsequent cases or by which some similar acts or circumstances may be supported or justified. In short, it means the employment of past decisions as guides in the moulding of future decisions. Salmond defines precedent as “the making of law by the recognition and application of new rules by the courts themselves in the administration of justice”. The doctrine of precedent provides the evidence of what the law is on a particular time.
Precedents gets authority from various factors. For instance, the power exercised by these courts (Supreme and High Courts) is one such fact which invests authority and elevates them as precedents. These courts exercise power of judicial review; this enables them to lay down original precedents i.e. precedents which lay down new principles of law. In England, as these courts have lost such power of review, there are only declaratory precedents.
Do Judges make Law?
It is a debatable question as to whether judges make law or simply declare an existing one. According to the declaratory theory of precedent, judges are merely law finders and not law makers. Blackstone said that judges did not create any new principles of law through their decisions but simply put a stamp of authority on the already existing principles of law in the society. The judges either apply the Constitution or a legislation or a custom to come to a conclusion. Coke said that judicial decisions are not source of law but as the proof of what the law is.
A number of jurists like Gray, Holmes, Dicey, Salmond and others have proved beyond doubt that judges not only declare law but also make it through their decisions. The law of torts is almost entirely a creation of judges through their decisions. Dicey said that the best part of the law of England i.e. common law is judge-made law. Bacon observed that there frequently arises novel cases or case of first impression which the judge has to decide without the assistance of any pre-determined legal rule. The principle laid down by judges in such cases are bound to be a distinct contribution to the existing law. Judges may give a new meaning to the existing law which becomes a new law (Law making theory).
Constitutional cases decided by the Supreme Court are binding and are “law”. However, the judge has to interpret and made law only within the material given by the Statute. In a recent case, Devki Nandan Aggarwal v Union of India (AIR 1992 SC 96), the Supreme Court held that the power of judges to interpret statutes are not unlimited. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The court shall decide what the law is and not what it should be. The court cannot add words to a statute or read words into it which are not there. The court will adopt a construction which will carry out the obvious intention of the legislature but could not legislate itself.
Conclusions – True, the primary function of a judge is to adjudicate the conflicting claims and not to lay down a new law, but he cannot refuse to decide a case on the ground that the law is silent or obscure on the point. In such a situation the judge not only decides but also applies and lays down an entirely new legal rule (The legislation or legal rules cannot take into account all the situations or circumstances that may arise in the future). In the process of adapting law to new circumstances the judges very often extend the law.
In conclusion, we can say that ‘by removing ambiguities, clarifying obscurities and harmonising antimonies the judges impart to the legal system that certainty and clarity without which it would be reduced to the level of mere futility. There is seen in bold relief the creative power of the judicial process as a source of law’. The function of the precedent will be to supplement, to interpret, to reconcile and to develop the principles which a statute contains.
Legislation vs Precedent
(Statutory law vs Case law)
(1) Legislation has its source in the law-making will of the State, precedent has its source in the ratio decidendi and obiter dicta of the judgment of a court.
(2) Legislation is the formal and express declaration of new laws or rules by legislature, precedent is the creation of law by recognition and application of laws or rules by the courts in the administration of justice.
(3) Legislation is a formal declaration of law in abstract while in precedent law is created by its application to a specific situation. Thus, precedent is more practical.
(4) Legislation is of general character, while precedent is of particular nature in so far as it is created by application of certain principles to specific fact situation.
(5) Legislation is generally made for future transactions (prospective operation), but precedent is always created with respect to past transactions (retrospective operation). Thus parties are governed by a law which did not exist at the time when the transaction took place. While in case of legislation, the law becomes known to the people in advance.
(6) While legislation may be resorted at any time to change the existing law or create a new law, precedent cannot do that unless a case actually arises and is brought before the court.
(7) Legislation is more coherent and it is easier to get the law as compared to the difficulty in finding the precedent.
(8) Legislation is more certain than a precedent. Over ruling of earlier decisions and conflicting decisions of superior courts make the precedent uncertain.
(9) Precedent has another drawback. Sometimes an erroneous decision is established as law due to not being brought before superior court. This is not so in case of legislation which can
change a ‘wrong’ or ‘unpopular’ law at any time.
(10) Legislation is rigid and must apply equally in disregard of needs of individual justice, while precedent has the flexibility of being moulded and applied according to the needs of individual case. Thus, precedent brings flexibility and scientific development in law. And, precedent has greater justice content than legislation.