Legal (Formal) Sources versus Historical (Material) Sources

Think of a university syllabus. Lecturers draw ideas from foreign textbooks and research papers, but none of that is examinable merely because it is good. What is examinable is what the Academic Council has approved and printed in the syllabus. The borrowed textbooks are historical sources of the course; the approved syllabus is its legal source; and the authority of the Council that makes the syllabus binding is the formal source. Note 22 surveys all the classifications of sources; this note isolates Salmond's central contrast and tests it against Indian practice.

1. Salmond's Scheme and Its Terminology

Salmond began with two senses of source. A formal source is that from which a rule of law derives its force and validity. As a positivist, Salmond found it in the will of the State, manifested through statutes and judicial decisions; it is a single source, the same for every rule. A material source is that from which the matter or content of the rule is derived. The formal source answers the question why a rule binds; the material source answers the question where its content came from.

Salmond then divided material sources into legal and historical. Legal sources are those which the law itself recognises as sources of law, the authoritative channels through which new principles enter the legal system. Historical sources are sources in fact but not in law: they have actually influenced the content of the law, but the law does not recognise them as having any authority. The legal sources, said Salmond in substance, are authoritative, and the historical ones unauthoritative; the legal sources are closed in number, while the historical sources are indefinite, because anything that has ever shaped a rule is one.

The title of this note uses the popular pairing: legal (formal) against historical (material). The pairing is common in Indian textbooks because the legal sources are 'formal' in the loose sense that they carry authority, while historical sources supply only material. An exam answer should show awareness that, in Salmond's own scheme, formal refers to the will of the State and material covers both legal and historical sources. The legal sources are the formal source at work through recognised channels.

2. The Legal Sources

Salmond listed four legal sources, and Note 22 follows him. Legislation produces enacted law (Note 23). Precedent produces case law, through the ratio decidendi of binding decisions (Note 24). Custom produces customary law, where a practice satisfies the tests of antiquity, continuity, reasonableness and certainty (Note 25). Agreement produces conventional law: the rules that parties create for themselves by contract, or States by treaty, which the law then enforces. Each operates directly: a court must apply a valid statute, a binding ratio or a proved custom, whether or not it agrees with it.

Some textbooks add professional opinion as a fifth legal source. It is better understood as a source whose status depends on the legal system. In Roman law it was a legal source: under the Empire certain jurists received the right to give authoritative opinions (responsa prudentium), and the Law of Citations (426) made the writings of five named jurists, Papinian, Paul, Ulpian, Modestinus and Gaius, binding on judges. The great commentaries played a comparable role in classical Hindu law (Note 22). In modern English and Indian law, however, a textbook or a jurist's article binds no court; it is a historical or persuasive source. The same shift can be seen in precedent itself: a binding precedent is a legal source, but a persuasive precedent is only a historical source (Note 93).

3. The Historical Sources

Historical sources are countless, but the standard examples are these. Roman law shaped the law of Europe and, through writers such as Bracton, parts of the English common law. Juristic writings, from Blackstone to modern commentators, have supplied principles later adopted by courts. Foreign judgments influence domestic courts by the force of their reasoning. Religious and moral ideas have shaped the content of family, criminal and contract law. Equity began as moral principle applied by the Chancellor and hardened into a body of law. In India, English law entered through the formula of justice, equity and good conscience, which the Privy Council in Waghela Rajsanji (1887) read as the rules of English law so far as applicable to Indian conditions (Note 22).

Salmond also noticed a deeper point. Every rule of law has a historical source, for it came from somewhere; but not every rule has a legal source. At the top of any legal system stand ultimate principles, such as the rule that what the legislature enacts is law, which are not derived from any higher legal source and can only be explained historically. Hart's rule of recognition (Note 11) and Kelsen's presupposed Grundnorm (Note 12) are later and more sophisticated answers to the same problem.

4. Indian Illustrations

5. How a Historical Source Becomes a Legal Source (and Back)

The two categories are not fixed lists of materials but statuses. The same material can move between them. It becomes a legal source when a legal source adopts it: a legislature enacts a Law Commission draft, a binding court adopts a foreign principle into its ratio, or a court finds a practice proved as custom. It becomes historical again when the legal system withdraws its authority.

The reverse movement is equally instructive. Before codification, the Smritis and the commentaries, as interpreted by the courts, were legal sources of Hindu law. Section 4 of the Hindu Succession Act, 1956 (like Section 4 of the Hindu Marriage Act, 1955) gives the Act overriding effect: any text, rule or interpretation of Hindu law, or any custom or usage, ceases to have effect in respect of any matter provided for in the Act. On those matters the texts are now historical sources, useful for understanding the background of the Act but without authority.

6. Allen's Criticism and Evaluation

C.K. Allen, in Law in the Making, attacked the idea of a single formal source. To say that all law derives its validity from the will of the State assumes the imperative theory instead of proving it. It also fits custom badly: for Allen a custom is law in its own right before any court recognises it, and the court only declares what the community has already made binding. The real question, he argued, is which agencies actually create law (Note 22). The historical school would agree that the most important source of law lies in the life of the people rather than in the State's command (Note 13).

The line is also hard to hold in practice: a persuasive precedent from a respected court may shape decisions almost as firmly as a binding rule. And the 'will of the State' is unhelpful in a constitutional democracy like India, where the Constitution itself, not the will of any organ, is the source of validity (Note 95).

Salmond's contrast survives because it answers a practical question every advocate faces: must the court follow this, or may it merely be persuaded by it? Legislation, a binding precedent and a proved custom must be followed; a foreign judgment, a Law Commission report or a speech in the Constituent Assembly can only persuade.

7. Frequently Asked Questions

Q. Are Constituent Assembly Debates a legal source of Indian constitutional law?
A. No. They are historical and persuasive material. Courts may consult them to understand the background and purpose of a provision, but the legal source is the Constitution as enacted and the law declared by the Supreme Court.

Q. Is a Law Commission report law?
A. No. It is a historical source. It becomes part of the law only when Parliament or a State legislature enacts its recommendations, though courts may refer to it as an aid to interpretation.

Q. Why is a foreign judgment only a historical source in India?
A. Because the Indian legal system does not recognise foreign courts as having authority to bind Indian courts. A foreign decision persuades by its reasoning alone, as M.C. Mehta (1987) showed in departing from Rylands v Fletcher.

See also: Note 22 (sources of law), Note 23 (legislation), Note 24 (precedent), Note 25 (custom), Note 93 (binding versus persuasive precedent), Note 102 (legislation versus precedent), Note 103 (legislation versus custom).