Syllabus Revision Program by Islami Jamiat Talba,

For Batch 19-24 and 20-25,

Punjab University Law College.

Subject: Introduction to Philosophy of Law (LL.B Part I)

Sources of Law

The term „‟sources of law‟‟ have been used in different senses by different writers and different
views have been expressed 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. this term has several
demotions;
1. Causes of law or the matter of which law is composed and point out the origin or the
beginning which give rise to the stream of law.
2. The term is sometimes employed to denote the quarter whence we obtain our knowledge and
law. (Holland)
3. Agencies through which the the rules of conduct acquire the character of Law by becoming
definite, uniform and compulsory. (C.K Allen)
4. The process by which the rule of law may evolved. (Vinogradoff)
5.Austin Refers to the three different meanings of the Term “Sources of
Law”
• Firstly, the term refers to the immediate or direct author of the 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• Secondly, the term refers to the historical document from which the body of law can be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 the code of Justinian.
• Thirdly, the term refers to the causes which have brought into the existence the rules
which later on acquire the forces of Law. For example, are Customs, Judicial decision,
equity, legislation etc.

In General, the term is defined as;

„‟ Sources of law are the origins of laws, the binding rules that enable any state to govern
its territory. The term "source of law" may sometimes refer to the sovereign or to the seat of
power from which the law derives its validity.‟‟

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 Means the origins of law, i.e., the binding principles / rules governing the human conduct.
Such sources may be international, national, regional or religious. It also refers to the sovereign
or the state from which the laws descend its enforcement or authority. In civil law systems, one
has only to look at the appropriate code or statute; but in common law systems one needs to look
at legislation (primary and secondary) and at the judicial precedents.

Source gives us an understanding of the objective behind the formation of everything. Sources
of law are the origins of rules of human conduct that came into existence in different ways.
Though there are various charges and counter-charges regarding the sources of law, it is
obvious that in almost all societies, the law has been acquired from similar sources.
According to the view of John Salmond there are two main sources of law were Formal
and Material. Material sources could be sub-divided into legal sources and historical sources.
Leg al sources are legislation, precedent , Custom ,agreement and professional opinin. Formal
sources are the will of the state as manifested in statues or decisions of the court.
The sources of laws are as follows:

1. Formal sources.

2. Informal sources or material sources.

Formal sources:
The sources from which the law derives its source and validity are formal sources of law. These
associates to the shape or system that causes the rules applicable formally. Here, we accept the

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rules as valid and binding in the legal system. Example: The manifested will of statutes and
judicial decision. Hence, the formal sources of law include:

a. Will of the state: Sometimes for the benefits of the people the state makes its own laws on
the subjects which are provided in the state list under the 7th Schedule, with due process of law
manifested in our constitution.
b. Will of the people: Laws are also made by the will of the people sometimes on facing
certain problems though it has to be considered acknowledgeable by the state. Then the state
makes it in the form of law.

c. Judicial decision of the court: In this case sometimes judgments of some lordships with
immense value are treated and transferred into a law.

Informal or material sources:

From material sources, law derives not its validity but the matter of which it is composed of. It is
the place from where we take the material of law.

According to Salmond;

Material sources are of two kinds, Historical and legal.

Historical Sources:

Historical sources are sources where rules, subsequently turned into legal principles, were first to
be found in an unauthoritative form. These are not allowed by the law courts as of right. These
operate only mediately and indirectly.

Legal Sources:
Legal sources are those sources which are the instruments or organs of the State by which legal
rules are created, e.g., legislation and custom. These are authoritative and are followed by law
courts as of right. These are the gateways through which new principles find access into the realm
of law. Legal sources of law are the gates through which new principles find their acceptance in
law. Legal sources include:

i. Legislations ii. Judicial

Precedence iii. Customs iv. Equity
v. Agreement

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 1- Legislation:

Legislation is derived from the Latin word “legs” meaning “law” and “latus” meaning “to make”
or “set”. Hence legislation means “making of law”.

Legislation is the prime source of law and comprises in the declaration of legal rules by a
competent authority. Legislation may have many objectives i.e.

• 1‟.to regulate,

• to authorize,

• to enable,

• to prohibit,

• to provide resources,

• to sanction, to grant, to declare or to restrict.

A parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals
old laws. The legislature may delegate lawmaking powers to lower bodies. In UK, such delegated
legislation includes Statutory Instruments, Orders in Council and Bye-laws. Delegated legislation
may be open to challenge for irregularity of process; and the legislature usually has the right to
withdraw delegated powers if it sees fit.

The term legislation includes „every expression of the legislature whether the same is directed to
the making of the law or not‟. An act of Parliament may amount to nothing more than establishing
a uniform time throughout the realm or altering the coinage.

The view of the analytical school is that typical law is a statute and legislation is the normal
process of law-making. The exponents of this school do not approve of the usurpation of the
legislative functions by the judiciary. They also do not admit the claim of custom to be considered
as a source of law. The view of the historical school is that legislation is the least creative of the
source of law.

Supreme and Subordinate Legislation:

Legislation is either supreme or subordinate. Supreme legislation is that which proceeds from the
sovereign power in the State. It cannot be repealed, annulled or controlled by any other legislative

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authority. On the other hand, subordinate legislation is that which proceeds from any authority
other than the sovereign power. It is dependent for its continued existence and validity on some
superior authority. The parliament, for example, possesses the power of supreme legislation.
However, there are other organs which have powers of subordinate legislation.

Delegated Legislation:

Another class of legislation is known as executive or delegated legislation. It is true that the
primary function of the executive is to enforce laws but in certain cases, the power of making
rules is delegated to the various departments of the government. This is technically called
subordinate or delegated legislation. Delegated legislation is becoming more and more imperative
in modern times.

Modern legislation is becoming highly technical and it is too much to expect that the ordinary
members of Parliament will appreciate all the implications of modern legislation. Except a few
experts in certain lines, the other members of Parliament are bound to spoil if they attempt to do
the impossible. Under the circumstances, it is considerably safe to the approval of general
principles of legislation and leave the details to the ministries concerned.

Delegated legislation gives flexibility to law and there is ample scope for adjustment in the light
of experience gained during the working of any particular legislation. Delegated legislation,
however, can be controlled by the following ways:

• Parliamentary Device: Parliament has always general control. When a bill is before it, it
can modify, amend or refuse altogether the powers which the bill proposes to confer on a
minister or some other subordinate authority.
• Parliamentary Command: A second way of controlling delegated legislation is that laws
made under delegated legislation should be laid before the legislature for approval and the
legislature may amend or repeal those laws if necessary.
• Judicial Control: While parliamentary control is direct, the control of court is indirect.
Courts cannot annul subordinate enactments, but they can declare them inapplicable in
particular circumstances. Courts also possess certain direct powers over the acts and
procedures of public authorities. The most important of them are called writs. The other
methods are injunctions and declarations.
• Trustworthy Organization: An internal control of delegated legislation can be ensured if
the power is delegated only to a trustworthy person or body of persons.

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 • Publicity: Public opinion can be a good check on the arbitrary exercise of delegated
statutory powers. Public opinion can be enlightened by antecedent publicity of the
delegated laws.
• Experts‟ Opinions: in matters of technical nature, opinions of experts should be taken.
That will minimize the danger of vague legislation and „blanket‟ delegation. All delegated
legislation must be subject to judicial control and review. It must not be unacceptable to
the statute under which it is framed. It must not be vague, uncertain or unreasonable. It
must be allowed to be controlled by the courts by means of appropriate writs.

2- Judicial Precedent:

Judicial precedent (aka: case law, or judge-made law) is based on the doctrine of stare decisis, and
mostly associated with jurisdictions based on the English common law, but the concept has been
adopted in part by civil law systems.

It is the doctrine known by the Latin term “stare decisis” meaning “to stand by what has been
decided”. This makes certain consistency in the law. There are three key features of judicial
precedence:

• Ratio decidendi, which means being able to decide the reason for a decision made in
an earlier case.

• Understanding how the hierarchy of the court controls the functioning of the system.

• A good system of law reporting.

Precedent is the accumulated principles of law derived from centuries of decisions.

A precedent is purely constitutive and in no degree abrogative. This means that a judicial decision
can make a law but cannot alter or amend it. Where there is a settled rule of law, it is the duty of
the judges to follow the same. They cannot substitute their opinions for the established rule of
law. Their function is limited to supplying the vacancies of the legal system, filling up with new
law the gaps that exists in the old and supplementing the imperfectly developed body of legal
doctrine. The reason why a precedent is recognized is that a judicial decision is presumed to be
correct. That which is delivered in judgment must be taken for established truth. In all probability,
it is true in fact and even if it is not, it is expedient that it should be held to be true. The practice of
following precedents creates confidence in the minds of the litigants. Law becomes certain and
known and that in itself is a great advantage. It is conducive to social development; administration
of justice becomes even-handed and fair. Decisions are given by judges who are experts in the
study of law.

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Kinds of Precedents:

• Authoritative and Persuasive:

An authoritative precedent is one which judge must follow whether they approve of it or not. A
persuasive precedent is one which the judges are under no obligation to follow but which they will
take into consideration and to which they will attach great weight as it seems to them to deserve.
Authoritative precedents are the legal sources of law and persuasive precedents are merely
historical. Authoritative precedents form law in fulfilment of a definite rule of law which confers
upon them that effect. If persuasive precedents succeed in forming law at all, they do so indirectly
by serving as the historical ground of some later authoritative precedent. They do not possess any
legal force or effect in themselves.

• Absolute and Conditional

Authoritative precedents are of two kinds, absolute and conditional. In the case of absolutely
authoritative precedents, they have to be followed by the judges even if they do not approve them.
They are entitled to implicit obedience. In the case of authoritative precedents having a
conditional authority, the courts can disregard them under certain situations. Ordinarily, they are
binding but under special circumstances, they can be disregarded. The court is entitled to do so if
the decision is a wrong one. A conditional precedent can be disregarded either by dissenting or by
overruling. In the case of overruling, the precedent overruled is authoritatively pronounced to be
wrong so that it cannot be followed by courts in the future.

• Declaratory and Original

A declaratory precedent is one which is merely the application of an already existing rule of law.
An original precedent is one which creates and applies a new rule. In case of declaratory
precedent, the rule is applied because is already existing as law. In the case of an original
precedent, it the law for the future because it is now applied. In the case of advanced countries,
declaratory precedents are more numerous. The number of original precedents is small but their
importance is very high.

3-Customs:

It can be described as the cultural idea that defines the regular pattern or behavior, which is
considered a characteristic of the judgment of right

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and wrong as the idea of justice and public utilities. A custom as a law is not in written form, but
considerably a rule whereby a practice can be shown to have existed for a very long time, it
becomes the part of sources of law.

Custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of justice and public utility. Custom is the oldest form of law-making. A
research on ancient law demonstrates that in primitive societies, the lives of the people were
regulated by customs which developed spontaneously according to situations. It was perceived
that a particular way of doing things was more convenient than others. When the same thing was
done again and again in a particular way, it assumed the form of custom.

Binding Force of Customs:

There are many reasons why custom is given the force of law:

• Custom is the embodiment of those principles which have commended themselves to the
national conscience as principles of truth, justice and public policy. The very fact that any
rule has the sanction of custom raises a presumption that it deserves the sanction of law as
well. Judges are inclined to accept those rules which have in their favor the prestige and
authority of long acceptance. Custom is the external and visible sign of the national
conscience and as such is accepted by the courts of law as an authoritative guide.
• Another reason for the binding force of custom is that the existence of an established
usage is the basis of a rational expectation of its continuance in the future. Justice demands
that this expectation should be fulfilled and not frustrated. The observance of a custom
may not be ideally just and reasonable, but it cannot be denied that it brings stability and
certainty in the legal order.
• Sometimes a custom is observed by a large number of persons in society and in course of
time the same comes to have the force of law. Reference may be made in this connection
to the custom of giving three days of grace on bills of exchange.
• Custom rests on the popular conviction that it is in the interests of society. This conviction
is so strong that it is not found desirable to go against it.
• Custom is useful to the law-giver and codifier in two ways. It provides the material out of
which the law can be fashioned – it is too great an intellectual effort to create law de novo.
• Psychologically, it is easier to secure reverence for a code if it claims to be based on
customs immemorially observed and themselves true even though historically the claim
cannot be substantiated.

There is inevitably a tendency to adopt the maxim, "Whatever has been authority in the past is a
safe guide for the future".

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4- Equity:

Equity is a source of law peculiar to England and Wales. Equity is the case law developed by the
(now defunct) Court of Chancery. Equity prevails over common law, but its application is
discretionary. Equity‟s main achievements are trusts, charities, probate and equitable remedies.
There are a number of maxims based on the concept of equity, such as: “He who comes to equity
must come with clean hands”.

Jurisdictions which have inherited the common law system differ in their current treatment of
equity. Over the course of the 20th century some common law systems began to place less
emphasis on the historical or institutional origin of substantive legal rules. In England, Australia,
New Zealand and Canada, Equity remains a distinct body of law with specialized practitioners.

Modern equity includes, amongst other things:

• The law relating to express, resulting and constructive trusts;

• Fiduciary law;
• Equitable estoppel (including promissory and proprietary estoppel);
• Relief against penalties and forfeiture;
• -off.

The latter part of the 20th century saw an increased debate over the utility of treating Equity as a
separate body of law. These debates were labelled as the "fusion wars". A particular flashpoint in
this debate centered around the concept of unjust enrichment and whether areas of law
traditionally regarded as equitable could be rationalized as part of a single body of law known as
the law of unjust enrichment.
5-Agreement:

An agreement is also an essential source of law as it gives rise to conventional law. That an
agreement operates as a source of rights is a face too familiar to require illustration. If X and Y
enter into an agreement which is a lawful one, the courts of law recognize that agreement and
enforce the same on X and Y. the same is the case if A and B enter into an agreement with a
lawful purpose. However, such agreements bind only the parties to the agreement and not others.
Law is a rule of conduct and generality is the test of law. There is no generality in an agreement
between two parties. An agreement is recognized so long as it exists, and when it is dissolved, it
has no further effect.

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6-Professional Opinion:

Professional opinions are also a considerable part of sources of law. These can be discussed under
the heads of the obiter dicta of judges, general opinions of the legal profession and opinions of
writers upon legal subjects.

• The obiter dicta are the statements of law made by a judge in the course of a decision,
arising naturally out of the circumstances of the case, but not necessary for the decision.
The value of these dicta as a source of law depends upon the reputation of the judge and
the relation of the rest of the law upon the specific point in question and upon similar
topics.
• The legal profession consists of the judges, the practising lawyers and teachers of legal
studies. These branches of the legal profession exercise a powerful influence upon the
development and progress of law. Although the influence of professional opinion is not so
great in England as against the case of Rome, yet their influence is considerable.

• The opinions of the writers of text-books also help the growth of law. It has been
particularly so in the case of international law. Its rules have frequently depended upon the
opinions of jurists. The influence of writers of text-books was greater in Roman law than
in English law. That is partly due to the fact that the study of law occupied a very vital
position in the lives of the educated Romans.

In medieval and modern Europe, the writings of great jurists proved a very significant source of
law. They actually decided what system of law should prevail in a particular civilization.

• 1
Austin, J., Lectures on Jurisprudence

• jurisprudence Cavendish
• Maine, Sir Henry, Ancient Law
• Marx, K, The Manifesto of the Communist Party
• Posner, R. A., The Problems of Jurisprudence
• Pound, R., Outlines of Lectures on Jurisprudence
• Simmonds, N. E., Central Issues in Jurisprudence: Justice, Law and Rights

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Prepared By: Hadia Qadir Section: D (Batch 2020-2025)

Team Head: Abdul Rehman

Project Head: Maher Ibtisam Elahi.

BEST OF LUCK … !!

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