The sources of law refer to the origins from which rules of human conduct are established and gain legal authority. It also refers to the sovereign or the state from which the laws incline its enforcement or authority. Several factors have contributed to the development of law. These factors are considered the sources of law or social control system.
Historical Sources of Law
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 mediatory and indirectly. Historical Sources of Law help us to know the historical significance and the need for such development of law. It is the religious belief, local customs, opinions of jurists, and historical development. There are two types of historical sources of law, i.e. Religion and Morality.
Legal Sources of Law
Legal sources refer to the various instruments or organs of the State that are responsible for creating legal rules, such as 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.
Every legal system contains rules of recognition determining the construction of new law and the evaporation of old. It is a principle of every law that any principle involved in a judicial decision has the force of law. Similar legal recognition is extended to the law-producing effect of statutes and ancient customs. These rules construct the sources of law. A source of law is any fact which in accordance with such basic rules determines the recognition and acceptance of any new rule as having the force of law.
In general, the law may be found to proceed from one or more of the following legal sources: from a written constitution, from legislation, from judicial precedent, from customs, and from the writings of experts such as English law proceeds primarily from legislation and precedent.
- Legislation involves the creation of laws by a recognized authority within the body politic.
- Precedent is the establishment of legal principles through the acknowledgement and implementation of new rules by the courts themselves in the pursuit of justice.
- Enacted law comes into the courts whereas the case law is developed within the courts themselves.
- Customary law is that which is constituted by those customs which fulfill the requirements laid down by law as the condition of their recognition as obligatory rules of conduct.
- Conventional law is that which is constituted by agreement as having the force of special law inter-parts, in derogation (deterioration) of or in addition to the general law of the land.
Kinds of Law
By reference to their legal sources, there are six kinds of law:
- Enacted law having its source in legislation
- Case law has its source in precedent
- Customary law having its source in custom
- Conventional law having its source in agreement
- Equity having its source concurrently in common law
- Professional opinions of eminent jurists, appearing as juristic law
Legislation
Legislation is verily a major source of law and comprises the declaration of legal rules by a competent authority. Legislation may have many objectives i.e. to regulate, to authorize, to enable, to prohibit, to provide resources, to grant, to sanction, to restrict or to declare.
A parliamentary legislature creates new laws and adjusts or repeals existing legislation, such as Acts of Parliament. Lower bodies may be granted the authority to enact laws by the legislature. By-laws, Orders in Council, and Statutory Instruments are examples of delegated legislation in the UK. The legislature typically has the authority to withdraw delegated powers if so chooses, and delegated laws may be challenged for procedural irregularities.
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.
Judicial Precedent
Judicial precedent (case law or judge-made law), is mostly connected with jurisdictions that follow English common law, while several civil law systems have also embraced the idea. The body of legal precedent that results from centuries’ worth of rulings is known as precedent. Judges’ rulings in big cases are documented and grow to be important sources of law.
In the absence of legislative action on a particular issue arising from shifting circumstances, judges rely on their personal moral compass to resolve conflicts based on fundamental principles. Relatively authoritative precedent decisions serve as a roadmap for comparable instances in the future. A judge may be able to apply “justice” rather than “the law” in light of precedent’s flexibility and adaptability as compared to other legal sources.
A precedent has no abrogative power; it is only constitutive. This implies that a court ruling has the authority to enact laws but not to change or modify them. It is the responsibility of judges to abide by established legal norms when they exist. They cannot replace the established rule of law with their own beliefs. Their function is limited to supplying the vacancies of the legal system, filling up with new law the gaps that exist 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.
Kinds of Precedents
Authoritative and Persuasive
An authoritative precedent is one that judges must follow whether they approve of it or not. A precedent that is considered persuasive is one that the judges are not required to follow, but they will give careful thought to and considerable weight because they believe it is worthy. Persuasive precedents are only historical, whereas authoritative precedents are the legal source of law.
Authoritative precedents form/make law in fulfillment of a definite rule of law which confers/discusses 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 conditional authority, the courts can disregard them under certain situations. While they are legally binding in most cases, there are several exceptions. The court is entitled to do so if the decision is a wrong one.
A conditional precedent can be disregarded either by dissenting (non-confirmed / objection) or by overruling (exercising authority). 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 declarative precedent is just an application of an established legal principle. A precedent that establishes and implements a novel guideline is deemed original. Declaratory precedent is governed by a norm that is applied since it is already a part of law. In the case of an original precedent, it is the law for the future because it is now applied. In the case of advanced countries, declaratory precedents are more in number. The number of original precedents is small but their importance is very high.
Customs
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 part of the sources of law. These are known as general customs. Specific (or “private”) customs may arise when a family a district or a group of tribe, has from long usage attained the force of law.
The embodiment of those values that have been recognized by the public consciousness as being just and useful to the public good is custom. Custom is the oldest form of law-making. 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.
Agreement or Treaties
A treaty is an agreement, protocol, covenant, convention, pact, or exchange of letters between two or more countries formally approved and signed by the leaders. Whereas, 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 that 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.
Professional Opinions
Professional opinions are also a considerable part of sources of law. These can be discussed under the heads of the usual order of judges, general opinions of the legal profession, and opinions of writers on legal subjects. The usual order is 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 orders 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 judges, practicing lawyers, and teachers of legal studies. These branches of the legal profession exercise a powerful influence on the development and progress of law.
Although the influence of professional opinion is not so great in England as in the case of Rome, their influence is considerable. The opinions of the writers of textbooks 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 textbooks 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.
Informal Control
Informal control includes gossip, slander, resentment, public opinion, sympathy, sense of justice, folkways, mores, customs, religion, morality, and such other agents. These are not purposefully created. Nothing could be said with certainty regarding their origin. They arise in their own way and in the course of time gain currency and popularity. They become deep-rooted with people in their practices.
No specific punishment would be given to the violators of informal control, still, they are more effective than formal control. They do not require any extra staff to enforce them as is done in the case of formal control. They do not have the physical force to enforce conformity to them. Hence, people may not observe them or go against them without being physically punished for the same.
Informal control is more effective in primary social groups such as family, neighborhood, tribe, and rural communities where interaction takes place on a personal basis. The informal control mechanisms become less effective as the group or society grows larger and more complicated. In general, social control refers to sociological and political procedures and methods that manage behavior, both individually and collectively, with the goal of achieving compliance and adherence to the laws and regulations of a particular state, society, or social group.
Social control is the application of behavioral norms to members of a community. Certain norms of behavior can be classified as good manners according to cultural definitions. As such, they characterize actions that are socially acceptable but not always required. There are other standards of behavior that are mandatory and governed by legislation. Laws in vast, complex cultures are typically codified properly so that everyone can understand them.
Small-scale societies like those of forgers, pastoralists, and horticulturists do not have regulations like these. Their laws are almost never codified and are typically far more informal. There’s no reason to explain them to anyone because they are a part of the dynamic oral heritage that these communities are familiar with. However, visitors from other societies are unlikely to be aware of the regulations until there is a disagreement.
