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Sources of law in jurisprudence

February 26, 2022

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This article is written by Adhila Muhammed Arif, a student of Government Law College, Thiruvananthapuram. This article seeks to explain the sources of law in jurisprudence, its classification, essential features and characteristics of those sources.

This article has been published by Sneha Mahawar.

Introduction

The word ‘Jurisprudence’ is derived from the Latin word jurisprudentia, which means science or knowledge of law. It is a very vast area of study and it consists of several ideologies and theories on how law has been made. It also includes the relationship of law with individuals and other social institutions within the scope of its study. There are various sources from which we derive law. Several jurists and scholars have attempted to classify the sources of law. However, the most common sources in all these classifications are legislations, judicial precedents, and customs.

Law and sources of law

According to John Chipman Grey, who was a Harvard Law School professor, “the Law of the State or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body, lays down for the determination of legal rights and duties”. Though Gray’s definition has been criticised for being narrow, he distinguished law from the sources of law. According to him, law has evolved through case laws and sources of law are where we get the content and validity of law from. Essentially, law refers to the rules or code of conduct and its sources refer to the materials from which it gets its content.

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources.

Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources.

Legal sources

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories-

Legislation,
Precedent,
Customary law, and
Conventional law.

Historical sources

Historical sources are sources that influence the development of law without giving effect to its validity or authority. These sources influence legal rules indirectly. The difference between legal and historical sources is that all laws have a historical source but they may or may not have a legal source. Decisions given by foreign courts serve as an example for this kind of source.

Formal sources

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources.

According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law into the following:

Binding sources

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs.

Persuasive sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgements, principles of morality, equity, justice, professional opinions, etc.

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases with similar facts. Some of the most influential judicial precedents in India are the following:

Kesavananda Bharati v. the State of Kerala (1973): This case is what introduced the concept of the basic structure doctrine in India, protecting the fundamental features of the Indian Constitution from being removed.
Gian Kaur v. the State of Punjab (1996): This judgement affirmed that the right to die does not come within the scope of Article 21 of the Indian Constitution. The court affirmed that every person has the right to die with dignity. The court also stated that the right to die in a dignified manner is not the same as the right to die in an unnatural way.
Maneka Gandhi v. the Union of India (1978): The court held Section 10(3)(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian Constitution.
Indra Sawhney v. the Union of India (1992): This judgement set a ceiling of 50% for reservation of backward classes. It also held that the criteria of classifying groups as backward classes cannot be limited to economic backwardness.

The doctrine of Stare Decisis

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed.

In India, subordinate courts are bound by the precedents of higher courts, and higher courts are bound by their own precedents. But when it comes to High Courts, the decision of one High Court is not binding on the other High Courts. Their decisions are binding on the subordinate courts. In cases where there are conflicts between decisions of court with the same authority, the latest decision is to be followed. As per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding on all the courts across the country. However, the Supreme Court’s decisions are not binding on itself. In subsequent cases where there are sufficient reasons to deviate from the earlier decision, the Supreme Court can do so.

Doctrine of Res Judicata

The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has been decided upon, the parties are barred from raising the same issue in courts again, unless new material facts have been discovered. They can’t raise another issue arising from the same claim either since they could have raised the same in the previous suit.

Ratio Decidendi

As per Salmond, a precedent is a judicial decision that contains a legal principle with an authoritative element called ratio decidendi. Ratio decidendi means reason for the decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when there is no statute or precedent concerning it. The principle that governs such a decision is the reason for the decision which is also called ratio decidendi.

Obiter Dicta

The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgement of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles.

Types of precedents

Authoritative and Persuasive

Authoritative precedents are those precedents that must be followed by subordinate courts whether they approve of it or not. They create direct and definite rules of law. They fall into the category of legal sources of law. Persuasive precedents on the other hand do not create a binding obligation on the judges. Persuasive precedents can be applied as per the discretion of the judge.

Authoritative precedents can be classified into the following two types:

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong.

Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so.

Original and Declaratory

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgement. It is a mere application of law. An original precedent creates and applies a new law.

Factors increasing the authority of a precedent

The number of judges constituting the bench that makes the decision.
A unanimous decision has more weight.
Approval by other courts, especially the higher courts.
The enactment of a statute that carries the same law subsequently.

Factors decreasing the authority of a precedent

Abrogation of judgement by reversal or overrule of a higher court.
Abrogation of judgement by a statutory rule enacted subsequently.
Affirmation or reversal of decision on a different ground.
Inconsistency with the previous decision of a higher court.
Inconsistency with previous decisions of the court of the same rank.
Inconsistency with already existing statutory rules.
Erroneous decision.

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the most important sources of law in jurisprudence. The word legislation is derived from the words legis and latum, where legis means law and latum means making.

Types of legislation

According to Salmond, legislation can be classified into two types- Supreme and Subordinate.

Supreme legislation

Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court.

Subordinate legislation

Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body. The following are the different kinds of subordinate legislation:

Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature.
Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament.
Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts.
Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws.
Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc.
Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation.

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organising themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practised by the community routinely and formed a systematised form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act.

Requisites of a valid custom

Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society.
Antiquity: It must have been practised for time immemorial.
Certainty: The custom must be clear and unambiguous on how it should be practised.
Conformity with statutes: No custom must go against the law of the land.
Continuity in practice: Not only the custom must be practised for time immemorial, but it should also be practised without interruption.
Must not be in opposition to public policy: The custom must adhere to the public policy of the state.
Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practised. Hence, it should be universal or general in its application.

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine:

At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God.
At the second stage, following rules becomes a habit of the people and it becomes customary law.
At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalise customs.
The final stage is the codification of customs.

Types of customs

Customs without a binding obligation

There are customs that are followed in society that do not have a legal binding force. Such customs are related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not legal consequences.

Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding obligation. They are not related to social conventions or traditions. There are mainly two types of customs with binding obligations- Legal customs and Conventional customs.

Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal consequences if not followed. Two types of legal customs are general customs and local customs. General customs are enforced throughout the territory of a state. Local customs on the other hand operate only in particular localities.
Conventional customs: Conventional customs are those customs that are enforceable only on their acceptance through an agreement. Such a custom is only enforceable on the people who are parties to the agreement incorporating it. Two types of conventional customs are general conventional customs and local conventional customs. General Conventional Customs are practised throughout a territory. Local Conventional Customs on the other hand is restricted to a particular place or to a particular trade or transaction.

Difference between custom and prescription

The main difference between the two is that custom gives rise to law and prescription gives rise to a right. Custom is generally observed as a course of conduct and is legally enforceable. Prescription refers to the acquisition of a right or title. When local custom applies to society, the prescription is applicable only to a particular person. For example, when a person X’s forefathers have been grazing their cattle on a particular land for years without restriction, X acquires the same right to graze his cattle on the land. The right acquired by X is called a prescription. For a prescription to be valid, it must be practised from time immemorial. In India, uninterrupted enjoyment for 20 years is essential to acquire a right to light and air as per the Indian Easements Act, 1882.

Conclusion

To conclude, sources of law in jurisprudence can be classified on the basis of several grounds. But the most notable or common classification divides it into legislation, precedent, and custom. Precedent refers to the previous judicial decisions. The legislation refers to the statutory rules enacted by the legislature. Custom refers to the age-old practises of a community that has solidified its presence so much that it becomes the law. Though legislation seems to be the agency through which we get laws, it is just the primary source. Many laws that we have are a reflection of what we as a society have followed for generations. Also, many cases show how sometimes the law of the land is inadequate or incapable of predicting what issues could arise in subsequent disputes. This calls for the judiciary to elaborate or interpret the law of the land, setting judicial precedents for several issues.

References

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Sources of law in jurisprudence

Introduction

Law and sources of law

Types of sources of law