Law, as it exists today, is derived from various sources which according to Holland are Customs, Religion, Equity, Judicial Decisions, Scientific Discussion and Legislation.
Customs constitute a very powerful source of law. Social life of people in the primitive society was regulated according to certain customs, practices, traditions and usages. Customs originate in imitation.
When a person invents a particular method of doing a thing and is imitated by others, a custom gradually comes into existence. A custom is formed in much the same way as path is formed across a field.
These customs and usages had found acceptance in the primitive society because they were held to be conducive to public order or justice. These customs descended down from generation to generation.
With the lapse of time, they developed a very strong hold over the psychology of the people. In modern times when law began to be written down, all these customs had to be codified amalgamate in the law proper. The best example of customary law is furnished by the Common Law of England.
The influence of religion in early society was especially strong and the social conduct of the people was regulated according to the religious principles because society in almost every country was dominated by the priestly class who were law givers.
The Brahmins were the dominating class in the Hindu Community for several centuries. The Pontiffs held sway in ancient Rome and so did the ecclesiastics in England. Religion was a necessary supplement to the prevalent customs.
With the passage of time, the religious principles went deep into human psychology. The modern jurists had to incorporate the religious principles in the body of law.
In India we have got the Mohammedan Law based on the Quran, the Hindu law based on the Code of Manu and Christian Law based on the Bible. These laws regulate matrimonial relations and problems arising out of inheritance.
Judges in every country have contributed a lot towards the process of law-making. Judges make new laws in the course of their judicial decisions. They cannot always interpret different cases according to the existing law. Sometimes a novel ease about which existing laws are silent may come up before a judge.
The judge cannot dispose of the case without giving any judgment. In such a situation, the judge will give his judgment by consulting his own sense of justice and fair-play. Such judgments give rise to the laws of equity which assume the force of well- recognized law.
In England, there is the Court of Chancery which is the supreme organization for the administration of equity. The Court is said to be the keeper of the King’s or Queen’s conscience and is authorized to remedy injustice according to equity.
The Indian courts have also been authorized to decide cases according to equity in the absence of positive law on the point. We can conclude with the remarks of Gilchrist that “equity as a source of law, arises from the fact that the positive law, as thc world advances, tends to become unsuitable for new conditions.
Equity is an informal method of making new laws or altering old laws; depending on intrinsic fairness or equality of treatment.”
4. Adjudications or Judicial Decisions:
Adjudication means the decisions of a court. Judges while deciding cases give their own interpretation to a law. They clarify ambiguities and obscurities and give it a new meaning and a new spirit.
These decisions especially when they emanate from eminent judges, serve as precedents for further cases of a similar nature. These judicial precedents or case made-laws are as good as law proper.
In England, a judicial precedent is cited with as much confidence as an Act of Parliament. The Common Law of England is mainly judge- made law. It developed through a long period of time and is based on numerous judgments given in the past by the judges of the King’s Courts.
5. Commentaries of Eminent Jurists:
Legal authorities and eminent jurists write comments on the existing laws. These comments arc published in the law books and journals. They are valuable both for the lawyers and the judges. These comments are referred to during discussions over a particular case before a court of law.
The judgments are very often influenced by these comments. As for example, the views of Coke and Blackstone have actually influenced the legal system in England to a great extent.
Although these comments arc mere legal arguments, yet these opinions cannot be easily ignored since they throw a flood of light on the spirit in which a particular law should be interpreted.
As Gilchrist puts it, “The Commentator by collecting, comparing and logically arranging legal principles, customs, decisions and laws lays down guiding principles for possible cases. He shows the omission and deduces Principles to govern them”.
In modem democratic times every country has its own legislature. These legislatures are constantly repealing and amending the old laws which have gone out of date. New laws arc formulated to suit requirements of society. There is an ever-widening scope of legislative activity.
Legislation is absorbing other sources of laws.. Hence in the words of Woodrow Wilson, “All means of formulating laws tend to be swallowed up in the one great, deep and broadening sense, legislation.
” The legislatures codify and systematize the existing law and remove ambiguities, lacunae and defects as come to their notice. Customs, religion and equity are no longer important sources of laws.
The judges also have less scope these days of making addition to the law as legislatures are there to remove the defects in the existing law and to reenact legislation declared null and void by the courts in a form which is intra vires.
The commentaries of eminent jurists too arc not regarded today as important except that they may provide suggestions promoting new legislation to Government in certain specific matters.
Legislatures today are very prolific in enacting new laws as the modem states have assumed a large variety of functions and have enlarged their sphere of activities.
Oppenheim on sources of law:
In the opinion of Oppenheim, there are not many sources of laws but there is only one source of law and it is the common consent of community.
According to him, customs, religion, adjudication, equity etc, are not, strictly speaking, so many sources of laws. Every law is based on the common consent of the people and this common consent is expressed in different channels variously known as customs, religion, adjudication, equity etc. These merely mark out the different stages in the development of law.
Points to Remember
These constitute a powerful source of laws. The best example of a customary law is furnished by the common law of England.
The Mohammedan Law, the Hindu Law and the Christian Law illustrate the examples of laws based on religion.
Judges in every country decide cases according to equity if existing laws are silent.
Such decisions have the force of law because all further cases of this nature are decided in the light of the precedents already established.
4. Judicial Decisions:
Judges constantly play the role of a lawmaker. They remove ambiguities existing in the laws.
5. Commentaries of Eminent Jurists:
Comments of jurists on the existing laws also serve as a source of law.
In modern age of democracy, the legislatures are busy in framing laws according to the newly arising needs of society.