Definition and Kinds of Sources of Law

    The term "Sources of law" means the origin from which rules of human conduct came into existence. The term has been used in different senses by different writers and different views have been expressed from time to time. 

1) Definition :

          According to C. K. Allen " agencies through which the rules of conduct acquire the character of law by becoming definite, uniform and compulsory".

          According to Keeton Source means "the material, out of which is eventually fashioned, through the activity of judges".

          Oppenheim defines source of law as " the name for a historical fact out of which the rules of conduct came into existence and acquire legal force".

2) Kinds of Sources of law:

         Sources of law may be classified into - Formal Sources and Material Sources

i) Formal sources:  

           The formal sources law also be called the Actual or ultimate Sources of law. According to Sir John Salmond, that "sources " from which a rule of law derives its force and validity.

ii) Material Sources:           

            The material sources of law are those which gives the matter or content of a principal of law. As the word material suggests, material sources deal with the substance, elements or constituent material of law. Material sources of law tells us what is contained in the law.

        According to Salmond, material sources are of two kinds -                   

• Historical Sources and

•  Legal Sources

 Historical Sources:


           Historical Sources of law are those which expresses the history or evolution for the principal of law and the circumstances through which it attained the form of law. These Sources are unauthoritative, they are Sources in fact but they have no legal recognition. And have only persuasive value. Historical Sources may become legal if they are recognised by law.

Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source...


Legal Sources:
            Legal Sources are those Sources which are the instruments or organs of the State by which legal rules are created.

    Salmond has classified the Legal Sources of English Law into four divisions are as follows:

 
    a) Legislation

    b) Precedent

    c) Custom

    d) Agreement

A) Legislation :
      which gives rise to enacted law.  According to Salmond Legislation is that source of law which consists in the declaration of legal rules by a competent authority.

B) Precedent :

       Precedents signify past judicial decisions. Judicial Precedents are an important source of law. They have enjoyed high authority at all times and in all countries. (See Kinds of Precedents )








C) Custom :

      Custom is also an important source of law. Custom signifies the habits and practices of the people. Custom gives rise to customary law.

      According to Salmond, Custom is the embodiment of those principles which have commended themselves to the national conscience as principal of justice and public utility.

D) Agreement :

      An Agreement is the state of being in accord of conformity such as to agree to the details of a transaction. An agreement may be defined as the expression by two or more persons communicated to each other of a common intention to affect the legal relations.

See also 

1) Meaning and Definition of Jurisprudence

2) Importance / Utility of Jurisprudence

3) Difference between Analytical School and Historical School

4) Distinction/ Difference between Possession and ownership

5) Difference / Distinction between Condition Precedent and Condition Subsequent

6) Advantages of Precedents  

7) Sources of International law