SOURCES OF LAW

• Introduction
Law and Legal system are pivotal for any civilization. Law is not only
important for an orderly social life but also essential for the very existence of
mankind.
In layman’s language, law can be described as a system of rules and
regulations which a country or society recognizes as binding on its citizens,
which the authorities may enforce, and violation of which attracts punitive
action.
These laws are generally contained in the constitutions, legislations, judicial
decisions etc.
THE CRITICAL THINKER- PLATO V. ARISTOTLE
SEVERAL DEFINITIONS OF LAW
According to Aristotle,
Law as an embodiment of reasons whether in individual or community
According to Jeremy Bentham,
A collection of signs declarative of a volition conceived or adopted by the
sovereign
According to John Austin,
A body of rules determined and enforced by a sovereign political authority
According to HLA Hart,
A system of rules, a union of primary and secondary rules. The primary rules
imposes duties on people to behave in certain ways. Secondary rules, by
contrast, pertain to the primary rules.
According to Roscoe Pound,
Law is an organized and critically controlled body of knowledge both of legal
institutions and legal precepts and of the legal order, that is, of the legal
ordering of the society

According to Oliver Wendell Holmes,

The prophecies of what courts will do in fact, and nothing more pretentious,
are what I mean by the law

According to Ronald Dworkin,

Judges create a rationally integrated and coherent network of legal principles
which is law

According to Joseph Raz,

Laws consists of authoritative positivist considerations enforceable by the
courts
 Schools of law

Realist School of Law

Sociological School of
Natural Law School Historical School of Law Analytical School of Law (Scandinavian and
Law
American Realism)

Source of Law Source of Law

Custom Balancing the conflict of
Common spirit of the the interests
people
Source of Law
Nature Source of Law
Divine Sources Command of the Source of Law
Human Reasons Sovereign Judicial Decisions
Morality Ignored
WHERE DOES LAW COME FROM?
Classification of Sources (According to Salmond)
Formal Sources of Law
These are the sources from which law derives its force and validity.
Material Sources of Law
It Is all about the matter from where the laws are derived.
Contemporary legal systems-
- Customs;
- Legislations;
- Judicial Precedents.
CUSTOM AS SOURCE OF LAW
A custom to be valid must be observed continuously for a very long time without any
interruption
A practice- time duration- public opinion and morality
Long established practices or unwritten rules which have acquired binding or obligatory
character
Can custom be law?
Custom is an important source of law
Two views prevail:
- Custom as a source of law- Savigny- will of the people not the will of sovereign- reflected
on the customs and traditions of the society (eg. Saptapadi)
- Custom not as a source of law- Austin- will of sovereign- not people
KINDS OF CUSTOMS
• Customs can be broadly divided in two classes:

Customs

Without Sanction General Custom

Legal Custom
With sanction Local Custom
Conventional
Custom
Customs Without Sanction:
Non Obligatory in Nature- Followed because of Public Opinion

Custom With Sanction- binding in nature- enforced by the state- further subdivided

Legal custom- custom whose authority is absolute- possess force of law-

recognized and enforced by the courts
General Customs- customs which prevails throughout the territory of India
Local Customs- customs that are applicable to a part of state, particular
region
Conventional Customs- conventional customs are binding on the parties to an
agreement. When two or more persons enter into an agreement related to trade, it
is presumed in law that they make the contract in accordance with established
convention or usage of that trade.
ESSENTIALS OF VALID CUSTOM
Jurists and courts have laid down some essential tests for customs to be recognized as a
valid source of law. The tests are:
- Antiquity- long time- beyond human memory- (for exp, In England the reign of Richard I
King of England has been fixed for the determination of validity of customs)
- Continuity- continuous practice- must have been enjoyed without any form of interruption
- Exercised as a matter of right- must be enjoyed openly and with the knowledge of the
community- not to be practiced secretly- must be proved as a matter of right- mere doubt
in exercising the right is not sufficient to a claim as a valid custom
- Reasonableness- must conform to the norms of justice & public utility- rational and
reasonable- should not cause any inconvenience
- Morality- should not be immoral and against public policy (Mathura Naikon v. Esu Naekin)
- Status with regard to- should not be opposed or contrary to any legislation.
Custom as a source law in India-
Custom was the most important source of law in ancient India. Even the British initially
adopted the policy of non-intervention in personal matters of Hindus and Muslims. The
British courts, in particular, the Privy Council, in cases such as Mohammad Ibrahim v.
Shaik Ibrahim, (AIR 1922 PC 59) observed and underlined the importance of custom
in molding the law. At the same time, it is important to note that customs were not
uniform or universal throughout the country. Some regions of the country had their
own customs and usages.

These variances in customs were also considered a hindrance in the integration of

various communities of the country. During our freedom struggle, there were parallel
movements for social reform in the country. Social reformers raised many issues
related to women and children such as widow re-marriage and child marriage.

After independence and the enactment of the Constitution, the Indian Parliament took
many steps and abrogated many old customary practices by some progressive
legislation. Hindu personal laws were codified and the Hindu Marriage Act, 1955 and
the Hindu Adoption Act, 1955, were adopted. The Constitution of India provided a
positive environment for these social changes. After independence, the importance of
custom has definitely diminished as a source of law and judicial precedent, and
legislation has gained a more significant place. A large part of Indian law, especially
personal laws, however, are still governed by the customs