Sources of Law : What are the sources of Law explain

Introduction:

Source gives us an understanding of the objective behind the formation of everything. Sources of law are the origins of rules of human conduct that came into existence in different ways. The word source of law is used in various senses. The common source of law is customs, codified law, judicial precedent, etc.


Sources of Law : What are the sources of Law explain

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Definitions of Law:

According to Salmond; “Law is a body of principles recognized and applied by the state in the administration of justice”.

According to Austin; “A body of rules fixed and enforced by a sovereign political authority”.


Meaning of source:

The term "Sources of law" means the origin from which rules of human conduct came into existence. 


Definition of Source:

Oppenheim defines source of law as “the name for a historical fact out of which the rules of conduct came into existence and acquire legal force".


Kinds of Sources of law:

According to Salmond there are two main sources of law;

  • Formal Sources and 
  • Material Sources 


Formal Sources:

The formal sources law also is called the Actual or ultimate Sources of law. According to Sir John Salmond, that "sources” from which a rule of law derives its force and validity


Material Sources:

The material sources of law are those which give 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. A material source of law tells us what is contained in the law.

From material sources, law derives not its validity but the matter of which it is composed of. It is the place from where we take the material of law.

According to Salmond, material sources are of two kinds -           

  • Historical Sources and
  • Legal Sources

Historical Sources:

Historical Sources of Law helps us to know the historical significance and the need for such development of law. It is the religious belief, local customs, opinion of jurists and historical development. There are two types of historical sources of law, namely, Religion and Morality.

Legal Sources:

Legal Sources are those Sources which are the instruments or organs of the State by which legal rules are created. Legal sources of law are the gates through which new principles find their acceptance in law.

Legal Sources of English Law further divided into following;

  • Legislation
  • Precedent
  • Custom
  • Agreements 
  • Treaties 


Legislation As a source of law:

Legislation is derived from the Latin word “legis” meaning “law” and “latus” meaning “to make” or “set”. Hence legislation means “making of law”. Legislation is that source of law which consists in the declaration of legal rules by a competent authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws and cancels existing laws in all countries. In modern times this is the most important source of law making. The term legislature means any form of law making. It not only creates new rules of law it also sweeps away existing inconvenient rules.

Types of Legislation:

There are mainly two types of legislation –

  • Supreme legislation
  • Subordinate legislation.


Judicial Precedents As a source of law

The judgments passed by some of the learned jurists became another significant source of law. Precedent means, the judgment or decision of the court cited as a right of implied legal principle or past judicial decisions. When there is no legislature on particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes. Such decisions become authority or guide for subsequent cases of a similar nature and they are called precedents. Precedent is more flexible than legislation and custom. It is always ready to be, used. Precedent is otherwise called case law judicial decision judge made law it is the sources of law. It enjoyed a high authority precedent plays a vital role when law is unwritten English common law is based on precedent.

Types of Judicial Precedents:

There are mainly four types of judicial precedents:

  • Original precedents.
  • Declaratory precedents
  • Authoritative precedent
  • Persuasive precedent.


Custom as a source of law

Custom is the oldest and important source of law. According to Holland, Custom is the course of conduct that is commonly observed. It exists as established usage; it is nothing but usage and habits. Custom means uniformity of conduct of people which is followed by any part of community or whole community. It can be described as the cultural idea that defines the regular pattern or behavior, which is considered a characteristic of the judgment of right and wrong as the idea of justice and public utilities


Agreement

An agreement is also an essential source of law as it gives rise to conventional law. An Agreement is the state of being in accord of conformity such as to agree to the details of a transaction. An agreement may be defined as the expression by two or more persons communicated to each other of a common intention to affect the legal relations.

In general terms, an agreement is two persons agreeing about something. It is what we call a ‘meeting of minds’. But in jurisprudence, an agreement has a more definite meaning. It is actually one of the essential steps of a contract. When one of the parties accepts the offer made by the other party, then both parties are in agreement.

So an agreement between two parties creates mutual obligations. And such obligations are enforceable by law. Typically an agreement involves some exchange of goods or money or services or some combination of them. It alters the rights and obligations of both parties involved. So an agreement is an essential aspect of any contract.


Treaties

Treaty is an agreement, protocol, covenant, convention, pact, or exchange of letters between two or more countries formally approved and signed by the leaders. Treaties may be on political, social or economic matters and a rule of civil law may be overridden by a treaty or convention.

Examples: The Simla Pact 1972, between Pakistan and India aimed at normalization of relationship between two countries.

The new Geneva Convention 1977 signed by hundreds of countries, defining racial segregation as war crime.

Legislation

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Source of Law

Custom!

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Source of Law

Precedent!

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