SOURCES OF LAW
Sneha Singh

• The meaning of the term “sources of law” differs from
writer to writer and changes as per context.
• Generally, Sources of law means the origin from which
rules of human conduct come into existence and derive
legal force or binding characters. It also refers to the
sovereign or the state from which the law derives its force
or validity.
• Alternatively, several factors of law have contributed to the
development of law. These factors are also regarded as the
sources of law.
• While there are others who include the material like statute
books, treatises, case laws, reports, etc. in the term source
of law.
MEANING:

• In Indian Context: It is used in two senses:
• First- According to Hindu Scriptures, duty is the
foundation head of all law.
• Second- the expression ‘sources of law’ means
where one must resort to get at law, i.e. the Hindu
Scriptures (Vedas, Smiritis, Shrutis, Upanishads),
evidence of records of land or books or reports.
• Natural Law philosophers – law has divine origin;
it is a gift of God contained in Holy Books
DEFINITION:

• The positivists use the term to denote the sovereign or the State
who makes and enforces the laws.
• Austin said that the term ‘source of law’ has three different
meanings:
1. This term refers to immediate or direct author of the law or the
authority from which the law emanates which means
the sovereign.
2. This term refers to the historical material/document from which
the body of law is gained can be known like Code of Manu.
3. This term refers to the causes that have brought into existence the
rules that later on acquire the force of law. E.g. customs,
legislations, judicial decision, equity etc.
DEFINITION:

• The historical jurists (Von Savigny, Henrye Maine, Puchta etc). – This
group of scholars believed that law is not made but is formed.
According to them, the foundation of law lies in the common
consciousness of the people that manifests itself in the practices, usages
and customs followed by the people. Therefore, for them, customs and
usages are the sources of law.
• Sociological Jurists- This group of scholars protest against the
orthodox conception of law according to which, law emanates from a
single authority in the state. They believe that law is taken from many
sources and not just one.
• Ehlrich said that at any given point of time, the centre of gravity of legal
development lies not in legislation, not in science nor in judicial
decisions but in the society itself.
DEFINITION:

I. Salmond on Sources of Law- Salmond has done his own
classification of sources of law:
1. Formal Sources- A Formal Source is as that from which
rule of law derives its force and validity. The formal source of
law is the will of the state as manifested in statutes or
decisions of the court and the authority of law proceeds from
that.
2. Material Sources- Material Sources are those from which
the matter is derived though not the validity of law.
• Material sources are further divided into two heads:
i. Historical Sources
ii. Legal Sources
CLASSIFICATION OF SOURCES OF LAW:

i. Historical Sources- Historical Sources are rules that are
subsequently turned into legal principles. Usually, the courts do
not allow such principles as a matter of right. They operate
indirectly and in a mediatory manner, so they are present but
not legally recognised until they are expressly adopted. These
are Un-authoritative and some of the examples are Writings
of eminent jurists, foreign judgments, conventions, etc.
ii. Legal Sources- Legal Sources are instruments or organs of
the state by which legal rules are created for e.g. legislation
and custom. They are authoritative in nature and are followed
by the courts. They are the gates through which new
principles find admittance into the realm of law. Some of
the Legal Sources are:
a. Legislations (Enacted Law)
b. Precedent (Case Law)
c. Customary Law (based on Customs)
d. Conventional Law- based on agreements, Treatises etc.

Sources of
Law
(Salmond)
Formal
Material
Legislations
Precedents
Customs
Conventional
Law

II. Keeton’s view- According to Keeton sources of law can be
classified into two broad categories which are further of various
kinds:
1. Binding Sources- Legislation, Judicial Precedent (Case and
Customary Law
2. Persuasive Sources- Principles of Equity, Professional
Opinions, Writing of Jurists etc.
III. Hindu Jurisprudence- Prior to codification of Hindu law in
1955-56, Dharamshastras, Commentaries and Digests and
Custom were the only sources of Hindu Law, but after
codification enacted statutes and precedents have assumed
importance as source of law.
CLASSIFICATION OF SOURCES OF LAW:

IV. Legal Sources of English Law- So far as English Law id
concerned the following have been recognised as sources of
law:
i. Legislation: Supreme and Subordinate
ii. Case Law or judicial precedent
iii. Custom
iv.Conventions based on Agreements
CLASSIFICATION OF SOURCES OF LAW:

It is significant to note that a source of law may also serve as a
source of right. Rather what is seen is that sources of law
are primarily legally constitutive of right. An Act of Parliament is
a typical source of law and there are several Acts which also
serve as sources of rights, for example, Consumer Protection
Act, Minimum Wages Act, Protection of Human Rights Act, etc.
However, all sources of law are not necessarily sources of
right. For example a judicial decision by higher judicial authority
is a source of law as regards the world at large but it is only a
source of right as regards the successful party and alternatively
in case of decision of a Lower court the decision is only a
source of right but not a source of law.
INTER-RELATION B/W SOURCES OF LAW AND
SOURCES OF RIGHT: