INTRODUCTION
Different writers have used the term Sources of Law in other senses. All the writers expressed their different views from time to time. Sometimes, the term is used in the sense of the sovereign or the State from which law derives its force or validity. Sometimes, it is used to denote the causes of law or the matter of which it is composed. It also points out the origin or the beginning that gave rise to the law stream.
INTERPRETATION OF TERM SOURCES OF LAW
According to Black’s Law Dictionary
Anything that provides authority for legislation and judicial decisions, a point of origin for law or legal analysis, is also termed fons juris.
DEFINITION OF “SOURCE OF LAW”
According to Austin
It refers to three meanings of the Term “Source of Law.”
Firstly, the term refers to the immediate or direct author of law, which means the sovereign in the country.
Secondly, the term refers to the Historical document from which the body of law can be known, e.g. the Digest and Code Of Justanion.
Thirdly, the term refers to causes that have brought the rules that later acquired the force of law into existence.
According to Vinogradoff
It is a process by which the rule of law may be evolved.
CLASSIFICATION OF THE SOURCES OF LAW
The sources of law can be classified into Formal and Material sources. The material sources can be further divided into Historical and Legal. The Legal bases can again be subdivided into Legislation, Precedent, Custom, and Agreement.
A) Formal Sources
B) Material Sources
A) FORMAL SOURCES
These consist of sources from which the law derives its force or validity.
CIVIL LAW IS FROM PARLIAMENT
Salmond proposed that the entire body of Civil Law has sprung from the State’s will and power as manifested in its Courts of justice. This source, according to him, is the formal source of law.
B) MATERIAL SOURCES
Those sources from which law derives its validity and the matter or substance it is composed are called Material Sources. Material Sources are classified into.
1. LEGAL SOURCES
The legal source of law consists of sources recognized by the law itself. Such references give rise to authoritative and immediate recognition by the Courts of Law.
Legal sources have further been subdivided into the following groups:
Legislation is the process by which an express and formal declaration makes new rules of law of an authority recognized by law as competent to frame such regulations. The law thus made is known as statute law. In Pakistan, such laws are made by the Provincial and Central legislatures. However, in cases of emergency, they can be made by the President and Governors of the Provinces.
Precedents: Making the rule of law by recognizing previous judgments by the Courts themselves while sitting to administer justice. Such laws are called precedents or case law.
Custom: This is the habitual conduct of most persons, believing that such behaviour is legal. The law produced in this way is known as customary law.
Agreement: The principles by which two or more persons are bound to modify or suppress the ordinary law due to a deal between them.
2. HISTORICAL SOURCES
The historical sources consist of the works of ancient lawyers and thinkers. They are sometimes restored to derive a rule of law but are not authoritative or binding. At best, they can influence the course of legal development.
SOME OTHER SOURCES OF LAW
Other than those mentioned above, the sources of law are the following.
1. Equity as a Source of Law
Equity has always been used to remove the defects of the Common Law in England so that justice could be administered according to principles of reason and fair play.
There are three main Objectives of Equity. They are discussed below.
- The interpretation of law should be based on sound, logical reasons
- Mere should be generality in the application of the law
- The deficiencies of law should be removed through equitable principles of justice and good conscience
2. Social Values as a Source of Law
Law derives much of its force and validity from the social values of a given society. Public opinion also finds reflection in the rules and judicial decisions of the courts.
The former Chief Justice of the U.S. Supreme Court, Mr Justice Dughlus Holmes, observed that.
Judges, being a part of society, are influenced by the social and legal changes around them. Therefore, it is natural that those changes are reflected in their judgments.
3. Religion as a Source of Law
In ancient times, religion exerted significant influence on primitive societies. It contributed largely to the growth of legal systems in most parts of the world.
- The ancient Roman and Greek laws were primarily based on religion
- In England, during the Middle Ages, the law was mainly contained in religious testaments because of the dominance of the Church over the State
- The Islamic Laws owe their origin to ancient holy treatizes. They are divinely inspired laws.
4. Digests and Treaties as a Source of Law
The Justinian Code is regarded as one of the best treatizes on ancient Roman law. The Roman King Augustus recognized the opinions of specific legal experts as authoritative law. They had a significant influence on the contemporary direction. Most Roman rule during the second and third centuries was based on commentaries and treatizes of Roman jurists.
In 426 A.D.-the works of the five eminent jurists were declared to have binding authority. Even today, the Digest of Justinian is recognized as one of the essential sources of Roman law.
In India, during the Mughal period, Aurangzeb deputed a learned Hindu Pandit of Bengal named Raghunandan to prepare a digest of existing Hindu law. The Code he prepared was called Fatawa-i-Alamgiri, which contained twenty-seven parts comprising the entire Hindu law.
The British rulers also realized the need for a comprehensive code of native laws to guide English Judges. Warren-Hastings 1773 summoned a batch of eleven reputed Pandits from Bengal and directed them to compile a Code of Gentoo laws.
CONCLUSION
Legal sources of law consist of such sources of law recognized by the law itself. Such references give rise to authoritative and immediate recognition by the Courts of law. The thinkers add religion, equity, and juristic opinion to the above classification. Salmond would discard them as historical, but it is not so. All three, particularly religion, are important sources of law.
FREQUENTLY ASKED QUESTIONS
What are the Sources of Law? What are the Legal Sources of Law?
REFERENCES
- Jurisprudence
- N-Series by M.A. Chaudhary
- Black’s Law Dictionary
