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:
Formal source of law
Material source of law
Customary source of law
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
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.
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:
|(c)||Local or special 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.
(d) Subordinate Legislation
If a legislation is done by some authority, which is other than sovereign power or institution like parliament of state and which falls under control of sovereign power or institution like parliament, and which continues to exist only by depending such superior or supreme authority like sovereign or parliament, then such legislation is called subordinate legislation.
(d-i) Kinds Of Subordinate Legislation
Subordinate legislation can be further classified into following forms:
1. Judicial Legislation
The Apex Courts of a state make their own laws and such legislation is called judicial legislation.
2. Municipal Legislation
Legislation, which is done by municipal committees or corporations for their dependent areas, is called municipal legislation.
3. Autonomous Legislation
Legislation, which is done by some autonomous departments like PIA, universities etc, is called autonomous legislation.
4. Colonial Legislation
The Crown of Great Britain has legislated and is even now legislating either for its different colonies or for its controlled areas. Such legislation is called colonial legislation.
Precedents are either adjudged cases or decisions of Apex Courts like Supreme Court or High Court. Apex Court, sometimes, hears a matter for which there exists no law. In such situation, Apex Court uses its discretionary jurisdiction to decide matter and such decision latterly assumes status of law. And subordinate Courts are bound to follow such adjudged cases or decisions. The importance of precedents as source of law is great throughout the whole world.
(v-a) Kinds Of Precedents
|(h)||Precedent sub silentio|
(a) Original Precedent
A precedent, which creates and applies a new legal rule, is called original precedent. Such kind of precedent is itself a law and the same is applicable to future decisions.
(b) Declaratory Precedent
A precedent, which is merely application of an already existing legal rule, is described as declaratory precedent.
(c) Persuasive Precedent
A precedent, which is not binding on a court, but is entitled to respect and careful consideration, is narrated as persuasive precedent.
(d) Conditional Precedent
A precedent, which is binding on courts with some condition, is called conditional precedent.
(e) Absolute Precedent
A precedent, which is binding on courts in accordance to some right or wrong reason, is called absolute precedent.
(f) Binding Precedent
A precedent, which a court must follow, is called binding precedent.
(g) Super Precedent
A precedent, which defines law and its requirements so effectively that it prevents divergent holdings in later legal decisions on similar facts, is called super precedent.
(h) Precedent Sub Silentio
If a legal question has neither been argued nor explicitly discussed in a judicial decision, but the same has been silently ruled on, then such legal question can be treated as a precedent and the same precedent is called precedent sub silentio.
Conventions are also considered as sources of law. There exist some laws, which are constituted by agreements or contracts., Such agreements or contracts can be between two or more nations or associations or persons. Out of these agreements or contracts, some laws are developed but these laws are applicable only to parties of agreements or contracts. An important point in respect of such laws is that these laws are in accordance to positive law and ca not be in contradiction to positive law.
Law is very hard and inflexible, and, sometimes, fails to fulfill requirements of natural justice. In fact, modification in Positive Law is not possible particularly to provide justice in accordance to changing circumstances. To settle this complication, concept of equity has been evolved just to provide natural justice. In contradiction to Positive Law, equity is any easy source to provide justice. However, equity itself is not a complete system and does not cover all matters of law, but is only to explain Common Law. Some scholars also consider equity as a source of law.
(viii) Religion or Faith
Some scholars also point out religion or faith as source of law.
To conclude, it can be stated that all development and evolution of law is not due to any one source. The reality is that each and every source of law has played its role and has made its contribution in development of law.