Sources of Law

It is very difficult, if not impossible, to give a precise definition of Law. Many renowned jurists have held
forth their own definitions of the term Law. Law, in the broadest and most comprehensive sense means
a set of rules and norms and a standard of pattern of behaviour to which every individual of the society
has to conform to. Another often quoted, although not widely believed, definition of Law is of that given
by Austin according to which Law is the command of the sovereign.
Sources of law may be classified into Legal and Historical sources as well as Formal and Non-formal
sources. Legal sources are those which are recognized as such by law itself. Historical sources are those
sources lacking formal recognition by law. The legal sources of law are authoritative and are allowed by
the law courts as of right. The historical sources of law are unauthoritative. They influence more or less
extensively the course of legal development, but they speak with no authority. All rules of law have
historical sources but not all of them have legal sources.cpp111
By formal sources it is meant, sources of law which are available in an articulated textual formulation
embodied in an authoritative legal document. The chief examples of such formal sources are
Constitutions and Statutes, Executive orders, administrative regulations, Ordinances, Charters and bylaws of autonomous or semiautonomous bodies and organizations, treaties and certain other agreements, and Judicial precedents.
On the other hand, Non-formal sources of law are legally significant materials and considerations, which
have not received an authoritative or at least articulated formulations and embodiment in a formalized
legal document. Non-formal sources of law may be Customs or Customary law, Standards of justice,
principles of reason and considerations of the nature of things (natura rerum), individual Equity public
policies, moral convictions and social trends.

Although a formalized, authoritative source of law provides a precise and clear-cut answer to a
legal problem, non-formal sources are also not unimportant and
should not be ignored. Where a formalized legal document reveals ambiguities and uncertainties
making alternative courses of interpretation possible, the non-formal sources should be resorted
to for the purpose of arriving at a solution most conductive to reason and justice. When the
formal sources entirely fail to provide a rule of decision for a legal case, reliance on the nonformal sources becomes mandatory.
FORMAL SOURCES OF LAW
LEGISLATION
Legislation has become the commonest source of new laws or of law reforms today. It is the
source of law which consists in the declaration of acts legal rules enforceable by a competent
authority. To legislate is to make new laws in any fashion. Legislation includes every expression

of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature
does not confine its action to the making of rules, yet all its functions are included in the term
legislation.
Law that has its source in legislation may be most accurately termed a enacted law, all other
forms being distinguished as unenacted. The more familiar term used is, however, statute law.
Blackstone and other writers use written and unwritten law to distinguish between legislation
and other sources of law.
Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds
from the supreme or sovereign power in the state, and which is therefore incapable of being
repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that
which proceeds from any authority other than the sovereign power. Such legislation is
subordinate in that it can be repealed by, and must give way to, sovereign legislation. It may also
be of a derivative nature, the power to legislate having been delegated by the sovereign to the
subordinate.c
In Delegated legislation, power to bring an Act into operation; power to apply the Act; power to
exempt from or extend the scope of the Act; powers to make rules, regulations and bye-laws;
power to impose tax etc. Besides delegation, there is sub-delegation also. In sub-delegation, the
agency to whom the power is delegated in the Act may further delegate it to another agency to
perform the duty.
Subordinate legislation may be delegated to the Executive. The essential function of the
executive is to conduct the administrative departments of the state. But it combines with this
certain subordinate legislative powers which have been expressly delegated by the Parliament.
The statutes entrust to some executive department the duty of supplementing the statutory
provisions by the issue of more detailed regulations bearing on the matter.
Certain delegated legislative powers are also possessed by the judicature. The superior courts
have the power of making rules for the regulation of their own procedure.
The Municipal authorities are entrusted by the law with limited and subordinate powers of
establishing special law for the areas under their control. The enactments so authorised are
termed by-laws, and this form of legislation may be distinguished as municipal.
PRECEDENTS
It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority,
which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of
law. It is the reason or legal principle of the case, which is known as the ratio decidendi applied by the
Doctrine of stare decisis, which forms the law for the future. A decision is not binding because of its
conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case
Bachan Singh v State of Punjab.

In Krishena Kumar v Union of India, the Supreme Court has observed, The Ratio Decidendi is the
underlying principle, namely, the general reasons or general grounds upon which the decision is based
on the test or abstract from the specific peculiarities of the particular case which gives rise to the
decision. The Ratio Decidendi has to be ascertained by an analysis by an analysis of the facts of the case
and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either
statutory or judge made, and a minor premise, consisting of the material facts of the case under
immediate consideration.
Obiter dicta on the other hand are observances of the court in the judgments passed by it. Although it is
of persuasive value, normally even an obiter dictum of the Supreme Court is expected to be obeyed and
followed.
Precedents may be classified into original and declaratory precedents. Original precedents are those
that create and apply anew rule or law, while declaratory precedents are those that merely declare or
apply the same pre-existing legal principle on a similar case. Both original as well as declaratory
precedents are equally important sources of law.
Precedents may also be classified into authoritative and persuasive precedents according to its binding
force on the lower courts. An authoritative precedent is one in which judges must follow it whether they
approve of it or not. A Persuasive precedent is one in which the judges are under no obligation to follow,
but which they will take into consideration, and to which they will attach as much weight as it seems to
them to deserve. In India, Article 141 of the Indian Constitution says that Law declared by the Supreme
Court is binding on all courts while the judgment of one High Court of a state has persuasive authority
over another High Court. Precedents are binding only from a higher court to a lower one while
persuasive authority exists only between collateral courts or courts of the same rank. One Division
Bench decision is binding on another Division Bench of the same court. Judgment of earlier Division
Bench of the High Court is binding in subsequent proceedings of the same case.
Authoritative precedents may further be classified into absolute and conditional. Absolutely
authoritative precedents are binding on lower courts irrespective of however erroneous it may be.
Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special
case its authority may lawfully be denied if the wrong and unsound nature of the law is proved.
When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it.
Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of
all authority, and becomes null and void and a new principle is authoritatively substituted for the old.
The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is
found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will
not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan. Where a
precedent is merely not followed, the result is the two stand side by side conflicting with each other.c
Such a situation can be solved only when a higher authority formally overrules one of the laws and
sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous

decisions. It may overrule them either by expressly saying so, or impliedly by not following them in a
subsequent case. Judgments are not scriptural absolutes but relative reasoning.
The binding force of the precedent may be destroyed when it is overruled by a higher authority or if it is
in opposition to a pre-existing statute or an earlier decision of a superior court. A number of decisions
on Constitutional law have been abrogated by constitutional amendments such as the decisions in Golak
Nath v State of Punjab. The binding force of the precedent may also be weakened if a particular point of
law involved in the decision is not perceived by the court, which is known as precedents sub silentiocpp153
and does not have any precedental value.
The value of the doctrine of precedent has been much debated.cpp133 Judges have been criticised on the
grounds that precedents give them the power to transform from law-implementors to law-makers.
However, it has also been argued in favour of Precedents that the practice is necessary to secure the
certainty of the law.cpp At a time of commercial development and constitutional jurisprudence, it is the
duty of the superior courts to be cautious in laying down precedents keeping in mind future
developments.

TREATIES
A treaty is an agreement entered into by countries, nations, or other legal persons recognized in
international law. If only two nations or other international persons are the contracting parties, the
treaty is called bilateral; if more than two are involved, it is usually called multilateral. The typical
legislature of a modern nation-state may pass laws which a minority of the legislators are unwilling to
approve, and these laws will bind everybody subject to the jurisdiction of the legislating body. Norms
imposed by multilateral treaties, on the other hand, ordinarily bind only those countries which have
manifested their approval by signing the treaty or otherwise adhering to it.
NON-FORMAL SOURCES OF LAW

CUSTOM
Custom has an important place as a source of law. It is the most important non-formal source of law.
Custom exists as law in every country, though it everywhere tends to lose its importance relatively to
other kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of existence
and general acceptance of which is proved by their customary observance, is no doubt the oldest form
of law making. It marks the transition between morality and law.
Custom can be described as the established patterns of behavior that can be objectively verified within a
particular social setting.
For a custom to be valid and operative as a source of law, it must conform to certain conditions and
requirements. The chief requisites of a valid custom are:-

i) Reasonableness- The most important requisite that a custom has to fulfill so as to become a valid
source of law is that it has to be reasonable. For example, the practice of Sati in India was banned by law
in spite of being a custom of the land. However, it also does not mean that the courts of law have the
liberty to disregard a custom whenever they are not satisfied of the absolute rectitude and wisdom of it,
for that would mean to deprive the custom of all its authority. To deprive a custom of its legality, it has
to be so seriously repugnant to law, that to enforce it would cause more harm than good to the public.
ii) Immemorial Antiquity- In order to become legally enforceable, a custom has to be followed from
time immemorial. However, General customs, or customs of the realm which prevail through the
whole territory does not have such a requirement. It is the Local customs, or customs which are limited
to a special part of the realm, which, in order to become law, need to prove the condition of having
continued for a long time or time immemorial.
i) Opinio Necessitatis- Another requirement for a custom to be a valid source of law is that there must
be an ethical conviction on the part of the people following the custom that it is obligatory and not
merely optional. Mere custom itself, as such, does not have any legal authority. It becomes legally
effective only because it is the expression of an underlying principle of right approved by its
practitioners.
ii) Conformity with Statute law- A custom must be pleaded and proved to become law.

All custom which has the force of law is of two kinds, which are essentially distinct in their
mode of operation. These two kinds of custom may be conveniently distinguished as legal and
conventional. A legal custom is one whose legal authority is absolute, while a conventional
custom is one whose authority is conditional on its acceptance and incorporation in agreements
between parties to be bound by it.
The term law includes custom and usages having the force of law.T he Indian Constitution provides
for customs and usages as sources of law in Article 13 (3) (b). In Dasharatha Rama Rao v State of Andhra
Pradesh, Das, J., said Even if there was a custom which has been recognized by law.that custom must
yield to a fundamental right. But personal laws, such as Hindu Law, Mohammedan Law, are not
included within the expression which has been expounded by the courts.

STANDARDS OF JUSTICE
Standard of Justice is used in cases where there is no statutory provision for a particular case in which
the judge has to depend on his own common sense or standard of justice or borrow the relevant
legislations from other countries so that no injustice is done to any party concerned in the case. There
are a number of judicial decisions where the courts, without any special authorization by the positive
law to decide the unprovided case according to considerations of equity have granted relief to novel
situations on grounds of natural justice and reason.

In the areas of conflict of laws, general considerations of fairness and justice have played a particularly
important part in developing this particular branch of law. Courts have also resorted to considerations of
justice in interpreting vague and ambiguous clauses in constitutional and statutory documents.
The notion of justice has been used rather extensively by the judiciary and as played a prominent role in
the decision of controversies. It is particularly in situations where the scales are heavily weighed on one
side and where a strong need for relief is apparent that the courts are willing to allow new claims or
defences on grounds of essential justice and equity.dpp354

EQUITY
Equity in its technical and scientific legal sense, means neither natural justice, nor even all that portion
of natural justice which is susceptible of being judicially enforced. It has, when employed in the language
of English Law, a precise, definite, and limited significance and is used to denote a system of justice in a
particular court. The lay notion of equity is that its purpose is to administer justice in the particular case
without regard to fixed or general rules, and indeed to set aside rules of law when essential to do so to
the ends of natural justice.
CONCLUSION

It is difficult to define law, but it is easy to define about law. Sources of law are an important
facet to law as it helps in giving a definition to law.
If a study is made of the legal systems in the world in modern times, it would be found that most
of the law is made by legislation. In some countries, especially in Common Law countries, the
decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a
very important parting the framing of laws, and the rights and liabilities of individuals are
determined on the basis of customs, especially upon matters on which there are no pre-existent
legislation, and no precedent to cover the matter. Sometimes customs are abrogated by the
legislation, and at other times are confirmed by their decisions.
The judges, in passing their judgment, take help from numerous other sources of law to, juristic
or authoritative writings, foreign decisions (Standard of Justice), moral considerations and public
opinion. The law generally comes from these sources. Sources of law are the tools, methods an
techniques that are availed by the legal system in order to carry out its social goals and
objectives, which is to provide justice to the people, most effectively and adequately. Sources of
law concerns itself with the methodology, modes of reasoning and the interpretation of law, and
not with the problems, principles and rules of specified law.