The Sources of Law

Ask where a river comes from and you may get three true answers. A hydrologist names the glacier that feeds it; a geographer names the rainfall of the catchment; a historian names the ancient channel it has followed for centuries. Ask where a rule of law comes from and you get the same variety. A positivist names the authority that made it binding (Parliament, the Supreme Court); another names the material from which its content was drawn (a custom, a religious text, a foreign judgment); a historian names the origins from which it grew. The theory of sources sorts out these answers. This note is an overview: legislation, precedent and custom each have their own note (Notes 23, 24 and 25).

1. Meaning of 'Source of Law'

The phrase 'source of law' is ambiguous. It can mean the ultimate authority behind law (God, the people, the sovereign, the Grundnorm); the origin of the content of a rule; the evidence where the law may be found (statute books, law reports); or the agencies by which new rules enter the legal system. Jurists therefore classify sources in different ways, and each classification reflects the author's theory of law. Learn the classifications with their authors, because examiners test the pairings.

2. Salmond: Formal, Material, Legal and Historical Sources

Salmond gave the most influential scheme. A formal source is that from which a rule of law derives its force and validity. For Salmond, a positivist, this is the will of the State, manifested in statutes and judicial decisions. A material source is that from which the matter or content of the law is derived, not its validity. Salmond then divided material sources into two.

Legal sources are those which the law itself recognises as sources of law. They are the authoritative gates through which new principles find entrance into the law. Salmond listed four: legislation (enacted law), precedent (case law), custom (customary law) and agreement (conventional law, the rules parties create for themselves by contract or treaty, which the law enforces). Historical sources are sources in fact, not in law: the writings of jurists, foreign decisions, Roman law, religious and moral ideas. They influence the content of law but have no authority of their own until a legal source, a statute or a decision, adopts them. A legal source operates directly and authoritatively; a historical source only indirectly.

Allen's critique

C.K. Allen, in Law in the Making, objected that Salmond's 'formal source' is unhelpful. To say that all law draws its validity from 'the will of the State' assumes the imperative theory rather than proving it, and does not fit custom, which Allen held to be law in its own right before any court adopts it; the court only recognises and declares what the community has already made binding. For Allen the real question is the agencies through which law is created, and custom, precedent and legislation are each such agencies.

3. Keeton: Binding and Persuasive Sources

G.W. Keeton classified sources by their effect on the judge. Binding (authoritative) sources are those the judge is bound to follow: legislation, judicial precedent and custom. Persuasive sources are those the judge may take into account but need not follow unless persuaded: principles of morality or equity, foreign judgments and professional (juristic) opinion. The value of Keeton's scheme is practical: it explains why a High Court is bound by a Supreme Court ruling but only influenced by a decision of the House of Lords or a leading textbook. The detailed working of binding and persuasive precedent is in Note 24.

4. Gray: Sources and Law Distinguished

John Chipman Gray, in The Nature and Sources of the Law (1909), drew a sharper line than anyone. The law of the State, he said, consists only of the rules which the courts lay down for the determination of legal rights and duties. Everything else is merely a source from which the courts draw those rules. He named five sources: statutes, judicial precedents, opinions of experts, customs and principles of morality (including equity). A statute, on this view, is not yet law; it becomes law only when the courts interpret and apply it. Gray quoted Bishop Hoadly: 'Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the Law-giver to all intents and purposes, and not the person who first wrote or spoke them.' This makes Gray a forerunner of American realism (Note 15). Critics reply that it confuses the application of law with its existence: a statute binds citizens and officials long before any court construes it.

5. Austin: Direct and Indirect Sources

For Austin, all positive law is the command of the sovereign. The direct source is the sovereign's own legislation. Indirect or subordinate sources are the judges and other subordinate authorities who make law with the sovereign's permission: judge-made law and custom enforced by courts are tacit commands, on the reasoning that what the sovereign permits, he commands. Custom as such, before judicial adoption, was for Austin only positive morality. This view is the target of the historical school, which saw custom as law in its own right (Note 13).

6. The Main Sources in Brief

7. Sources of Hindu and Muslim Law

Personal laws in India have their own theory of sources. The ancient sources of Hindu law are four. Shruti ('that which was heard'), the Vedas, regarded as revealed. Smriti ('that which was remembered'), the Dharmashastras such as those of Manu, Yajnavalkya and Narada. Commentaries and digests that interpreted the Smritis, above all the Mitakshara of Vijnaneshwara (a commentary on Yajnavalkya) and the Dayabhaga of Jimutavahana, which founded the two main schools. Custom (sadachara), which, when proved, could override the written texts: the Privy Council said in Collector of Madura v Moottoo Ramalinga Sathupathy (1868) that clear proof of usage will outweigh the written text of the law. The modern sources are legislation (notably the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956), precedent and justice, equity and good conscience.

The primary sources of Muslim law are also four. The Quran, the word of God and the foremost source. The Sunna, the practice and sayings of the Prophet, recorded in the Hadith. Ijma, the consensus of qualified jurists on a point of law. Qiyas, analogical deduction from the first three. Secondary sources include custom (urf), judicial decisions and legislation, such as the Muslim Personal Law (Shariat) Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939.

8. Justice, Equity and Good Conscience

Where no statute, precedent or custom governed a case, courts in British India were directed to decide according to justice, equity and good conscience. The formula appears in the regulations of the late eighteenth century and later in statutes such as the Bengal, Agra and Assam Civil Courts Act, 1887. The Privy Council, in Waghela Rajsanji v Sheikh Masludin (1887), explained that it generally meant the rules of English law, so far as they were applicable to Indian society and circumstances. It was the residual source through which much English law (and principle) entered Indian law, and it still guides courts in genuine gaps.

9. The Constitution as Source

In India the Constitution is the supreme source of law and the source of the authority of every legislature, executive and court. Three provisions matter for the theory of sources. Article 13(3)(a) defines 'law' to include any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law, so that even custom must conform to fundamental rights. Article 372 continues all laws in force before the Constitution until altered, repealed or amended, subject to its other provisions; under Art. 13(1) pre-constitutional laws are void to the extent of inconsistency with fundamental rights. Article 141 makes the law declared by the Supreme Court binding on all courts, which makes precedent a constitutional source.

10. International Law as a Source in India

Article 51(c) directs the State to foster respect for international law and treaty obligations, and Art. 253 empowers Parliament to legislate to implement treaties. Treaties do not become domestic law automatically; they need legislation to override existing law. But the Supreme Court has used international law in three ways: to interpret domestic law, to fill gaps where no domestic law exists, and to treat accepted rules of customary international law as part of Indian law unless they conflict with an Act of Parliament.

11. Frequently Asked Questions

Q. What is the difference between formal and material sources?
A. In Salmond's scheme, the formal source is what gives a rule its force and validity, the will of the State. The material source is what supplies its content. Material sources are either legal (recognised by the law, such as legislation, precedent, custom and agreement) or historical (influential but without legal authority, such as juristic writings).

Q. Why did Allen criticise the formal source?
A. Because tracing all law to the will of the State assumes the imperative theory and does not fit custom, which Allen held was law in its own right before a court recognised it. He preferred to ask which agencies actually create law.

Q. Is international law a source of law in India?
A. Treaties need legislation to override domestic law, but courts use international law to interpret statutes and fill gaps (Vishaka, 1997), and accept customary international law as part of Indian law unless it conflicts with an Act of Parliament (Gramophone Company, 1984).

See also: Note 23 (legislation), Note 24 (precedent), Note 25 (custom), Note 44 (Indian jurisprudence).