There are several sources of law that are used to govern and regulate society. Examples - Custom Law, Legislation, Precedent etc
What is Law?
Before we see what are the sources of law, let's see what is law. In the real sense, Law is a system of rules and regulations that are enforced through social institutions to govern behavior. It shapes politics, economics, and society in numerous ways and serves as a social mediator of relations between people.
In simple words, Law is made up of a body of rules and regulations that are enforced through social institutions. These rules are created and enforced by governments to regulate behavior and can be enforced through a variety of means, including fines, imprisonment, and other sanctions. The main purpose of the law is to provide a framework for the orderly resolution of conflicts and to protect individuals and society as a whole. There are two main categories of law, civil law and Criminal Law.
What are the Sources of Law
Historical Jurists such as Savigny, Sir Henry Maine, Puchta, etc. believed that law is not made but is found. According to them, the foundation of law lies in the common consciousness of the people that manifests itself in the practices, usages and customs followed by the people. Therefore, for them, customs and usages are the sources of law.
Sociological Jurists scholars protest against the orthodox conception of law according to which, law emanates from a single authority in the state. They believe that law is taken from many sources and not just one. Ehrlich said that at any given point in time, the center of gravity of legal development lies not in legislation, not in science nor in judicial decisions but in society itself. He propounded the concept of "Living Law". Whoever enacts the law, it will be applied only in society. So society should decide whether we should follow this law or not. Law cannot operate in a vacuum space. Hence there should be a subject and that subject is Society. Society alone makes a law to exist. If society lives, then law to can live in that society. Thus the law emancipated from society.
Duguit believed that law is not derived from any single source as the basis of law is public service. There need not be any specific authority in a society that has the sole authority to make laws.
According to Sir Salmond sources of Law -
Salmond has done his own classification of sources of law:
Formal Sources: A Formal Source is as that from which rule of law derives its force and validity. The formal source of law is the will of the state as manifested in statutes or decisions of the court and the authority of law proceeds from that.
Material Sources: Material Sources are those from which is derived the matter though not the validity of law and the matter of law may be drawn from all kind of material sources.
Historical Sources: Historical Sources are rules that are subsequently turned into legal principles. Such sources are first found in an Unauthoritative form. Usually, such principles are not allowed by the courts as a matter of right. They operate indirectly and in a mediatory manner.
Legal Sources: Legal Sources are instruments or organs of the state by which legal rules are created for e.g. legislation and custom. They are authoritative in nature and are followed by the courts. They are the gates through which new principles find admittance into the realm of law. Some of the Legal Sources are:
a. Customs -
Salmond Defined custom : "Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of justice and public utility." See Kinds of Custom
b. Legislations -
Legislation is considered to be the most important source of law because it is created by elected officials who are accountable to the people they represent.
c. Precedents
Precedent is a legal principle or rule established in a previous legal case that is considered as an authority or guide in deciding subsequent cases involving similar issues or facts.
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