The term sources of law has been used in different senses by different
writers and different views have been expressed from time to time.
CK Allen – “agencies through which the rules of conduct acquire the
character of law by becoming definite, uniform and compulsory”
Vinogradoff – “process by which the rule of law may be evolved”
Oppenheimer – “the name for a historical fact out of which the rules of
conduct duct come into existence and acquire legal force”
Classification of Sources of Law
Formal Sources : Formal sources are called the actual sources or ultimate
sources of law. John Salmons defines formal source of law as that
“sources” from which a rule of law derives it’s force and validity.
What constitutes the formal, actual or ultimate source of law will depend
upon the definition of law applied by a person. If the law is seen as the
embodiment of natural law then justice, morality, truth and other ideals
laid down are the formal sources.
To sum up, we say that formal source of the law tells us about the validity
of the law.
Classification of sources
Material sources: Material sources of law are those from which are derived
the matter and not the validity of law.
As the word material suggests material sources deal with the substance,
elements or constituent material of the law.
Material sources of law are of two types:
Legal sources of law
Legal sources of law are those sourced which are the instruments or
organs of the state by which legal rules are created. Legal sources of law
are the following:
-Legislation: It I’d a law having its source in legislation. Legislation is the laying
down of rules by legislature which is an important organ of the state.
-Precedent: Precedents signify judicial decisions. They are statements of law
found in past decisions of courts.
-Custom: Custom signifies the habits and practices of the people.
-Agreements: an agreement is the state of being in accord or conformity with
as to agree to the details of a transaction.
Historical sources of law
The rest of sources of law are historical sources. These are unauthorative.
They are sources but have no legal recognition. They operate indirectly
and mediately. Under this class come juristic writings, foreign decisions
and numerous other things from which a judge derives help in shaping his
judgement. They are of two types:
-Religion and morality
-Literary sources of law: Means the original sources of law which come from
authorities on law. A literary source being an original source, any commentary
written on the original work cannot constitute a literary source of law.
Sources of law and India
Hindus and Muslims constituted the major population of India prior to the
British rule who were governed by their personal laws. Srutis, Smrutis,
Custom are primary classical sources of Hindu law whereas Quran, Sunnah,
or Ahdis, Ijmaa, Qiyas and Usages are the main sources of Muslim law.
However, the role of custom is diminishing as a source day by day as the
societies are changing fast adopting new ways of living the role of
precedent as a source of law is also limited because he judges have to take
help of many other sources.