1. Introduction To Source Of Law
There are various sources, which pave a way for legislation. These sources play an important role and contribute a lot especially in making of any law. As far as jurisprudence is concerned, study of sources of law is of great significance.
2. Definition Of Sources Of Law
Sources of law mean those things or bases, from which a law is derived. In simple words, sources of law can be defined as those sources from which legislature draws a law.
3. Different Sources Of Law
No-doubt there exist some differences among scholars as far as number of sources of law is concerned, but this reality can not be ignored that there exists some relation among all sources of law. Some important sources of law are:
| (i) | Formal source of law |
| (ii) | Material source of law |
| (iii) | Customary source of law |
| (iv) | Legislation |
| (v) | Precedents |
| (vi) | Convention |
| (vii) | Equity |
| (viii) | Religion or Faith |
(i). Formal Source of Law
Formal source of law is that source, which makes law authenticated. In fact, law derives its image, impression, effect and lawfulness from this kind of source. Basic philosophy, which works behind this kind of source of law, is that a law can not assume impression, image and effect of an authenticated law unless it is not enforced by some enforcement power and such power can be a sovereign.
And it is this sovereign, which not only manages to enforce law through enforcement force like police, but also manages to award sentences to offenders of law through courts.
ii. Material Source Of Law
That source of law, from which substance of law is derived, is called material source of law. All other sources except formal source of law are related and connected with material source of law.
ii-a) Kinds of Material Source of Law
According to some scholars, material source of law can be further classified into two different kinds and these kinds are:
| (a) | Unauthenticated or historical source of law |
| (b) | Authenticated or legal source of law |
(a) Unauthenticated or Historical Source of Law
Unauthenticated or historical source of law is that source of law, which has cost influence on evolutionary stages of law during historical periods, but has failed to achieve legal authenticity.
This kind of material source of law is about writings of legal scholars of history. The concepts and opinions of scholars of history are of great historical importance. Although their opinions have not received legal authenticity, yet influence of their opinions upon law can not be historically ignored. The reason is that their opinions have played important role behind legislation.
(b) Authenticated or Legal Source of Law
Legislation from any legal legislature is basically legal source of law. An authenticated or legal source of law is that kind of sources of law, which has not only been accepted by law, but which has also been given legal authenticity. The base of any positive or imperative law is this kind of source.
(iii) Customary Source Of Law
If some practice has been commonly adopted and has remained unvaried for a long period, then such practice assumes force of law.
And such practice is called custom. According to some scholars, it is not necessary that a custom should be in written form, but it is necessary that custom should be used for a long period and should be followed regularly. No doubt importance of custom as a source of law can not be ignored as it plays significant role in legislation. However, a custom can only be considered as a source of law when the same has remained famous, has been in conformity with positive or imperative law, has been practiced for along period, and has belonged to some ancient period.
(iii-a) Kinds Of Customary Source Of Law
Customs can be further classified into following forms:
| (a) | Conventional custom |
| (b) | Legal custom |
| (c) | Local custom |
| (d) | General custom |
(a) Conventional Custom
Conventional custom means that custom, which is established through agreement among people.
(b) Legal Custom
Legal custom can be defined as that custom, which operates as a binding rule of law. Such kind of custom has legal authenticity.
(c) Local Custom
Local custom means that custom, which prevails only in some defined locality such as a city or county and constitutes a source of law for that place only.
(d) General Custom
General source of law is that custom, which prevails throughout a country or society and constitutes source of law for that country or society.
(iv) Legislation
Legislation is the biggest source of law. This very term, legislation, is usually taken in broader sense. Legislation consists of all procedure and methods, which are adopted for making of new law. In a democratic state, legislature usually does legislation and law born out of legislation is either called positive law or statute law.
iv-a) Kinds of Legislation
Legislation can be further classified into following kinds:
| (a) | Supreme legislation |
| (b) | General legislation |
| (c) | Local or special legislation |
| (d) | Subordinate legislation |
(a) Supreme Legislation
When legislation is done by institution like parliament of a state or by some other sovereign power and cannot be repealed, annulled, or controlled by any other legislative authority in the state, then such legislation is called supreme legislation.
(b) General Legislation
General legislation is that kind of legislation, which is applied to community at large.
(c) Local or Special Legislation
Legislation, which affects only a specific geographic area or a particular class of persons, is called local or special legislation. Such legislation is usually considered unconstitutional if it arbitrarily or capriciously distinguishes between members of same class of persons.