Sources of Law — an Overview — Jurisprudence Notes

Sources of Law — an Overview

When you ask “what is the source of the river?” you might mean the spring it flows from, or the rainfall that feeds it, or the authority of a map that names it. “Source of law” is just as layered — it can mean the authority that gives law its force, the material the law is made of, or the historical origin of a rule. Sorting out these senses is the first thing this unit teaches.

The kinds of “source”

Everyday hook: a cake has a source in the recipe’s authority (who is allowed to bake it), in its ingredients (what it is made of), and in its history (where the recipe came from). Legal sources split the same three ways.

Salmond’s two-fold division:

1. Formal source — the source from which a rule derives its force and validity — that is, the will of the state as expressed through its recognised organs (the legislature and the courts). It answers “by what authority is this law?”

2. Material source — the source from which the law derives its matter (content), not its validity. Material sources are of two kinds:

   • Legal sources — those the law itself recognises as law-creating: legislation, precedent, custom and (historically) conventional law (agreement) and professional opinion. These are the three we study.
   • Historical sources — the factors that in fact influenced a rule’s content but are not recognised as law by themselves (juristic writings, religious texts, foreign law, morality). They have persuasive value only, until adopted through a legal source.

The three legal sources compared (this is what the “various sources” question wants):

• Legislation — law consciously made by the legislature; the supreme, most certain and flexible source in a modern state.
• Precedent — law declared and developed by judges deciding actual cases; flexible and practical, but scattered and slow.
• Custom — law that grew from long, uniform social practice, recognised by the courts; the oldest source, now largely absorbed into legislation and precedent.

Their relative authority today: legislation prevails over both precedent and custom (a statute can override a judicial rule or a custom); precedent prevails over custom (a court decides whether a custom is valid); custom operates only in the space the other two leave open.

Salmond: “A formal source is that from which a rule of law derives its force and validity; a material source is that from which it derives the matter, not the validity, of the law.”

In Simple Terms: “Source of law” has layers. The formal source is the authority (the state) that makes law binding; the material source is what the law is made of — chiefly the three legal sources: legislation, precedent and custom. Legislation ranks highest, then precedent, then custom.

🧩 WORKED EXAMPLE — Placing a rule in its source

Facts. (i) A rule that contracts by minors are void comes from a statute. (ii) The “neighbour principle” in negligence comes from a decided case. (iii) A rule that a particular community’s marriages follow a local rite comes from long practice.

Rule. The three legal sources are legislation, precedent and custom.

Apply. (i) is legislation, (ii) is precedent, (iii) is custom — and if they clashed, the statute would beat the case, and the case would decide the custom’s validity.

Conclusion. Naming the source and its rank against the others is the complete answer.

flowchart TD
    S["SOURCES OF LAW"]:::root
    S --> F["FORMAL<br/>authority / validity — the State"]:::leaf
    S --> M["MATERIAL<br/>the content of law"]:::leaf
    M --> LG["Legal sources<br/>legislation, precedent, custom"]:::leaf
    M --> HI["Historical sources<br/>juristic writing, religion, foreign law"]:::leaf
    LG --> RANK["Rank: legislation > precedent > custom"]:::dec
    classDef root fill:#FFF8DC,stroke:#000,stroke-width:1px,color:#000;
    classDef leaf fill:#E6F3FF,stroke:#1E3A8A,color:#000;
    classDef dec fill:#FFE8C2,stroke:#B45309,color:#000;
    linkStyle default stroke:#888,stroke-width:1px;

Case Laws

• Bengal Immunity Co. v State of Bihar (1955) — a statute (legislation) overrides an earlier judicial view: the supremacy of legislation among the sources.
• Collector of Madura v Moottoo Ramalinga (1868) — clear custom is recognised as a valid legal source.

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