As the inevitability of law in life of state is well-known, the question automatically crops up as to how law originate? What are its sources?
By sources of law we mean its beginning as law and the point from which it springs or emanates. As regards law there are six important sources.
Customs are oldest source of law. It is the outcome of habits. When a particular habit is followed for a long time by the people regularly and habitually, the custom comes into being. When written laws were more conspicuous by their absence in the primitive society, it was customary laws that regulated human conduct in the primitive society. It is said that kings have no power to create custom and perhaps less to destroy it. Customs largely influence the legal system of a state and the state gets rid of the bad customs like Sati, Polygamy, and Dowry etc. only by means of legal impositions. The United Kingdom provides the best example of customary laws which are found in the common law of England. In the United Kingdom the law and custom are so intimately connected with each other that the violation of convention custom will lead to the violation of law.
The religion is another important source of law. It played an important role in the primitive period when men were very much religious minded and in the absence of written laws the primitive people obeyed religion thinking it of divine origin. In the medieval period, most of the customs that were followed were only religious customs. Even today the Hindu Laws are founded on the code of Manu and the Mohammedan Laws are based on the Holy Koran. The religious codes become a part of the law of the land in the state incorporates the religious codes in its legal system.
(C) Judicial Decisions
Since the dawn of the human civilisation the dispute between two parties is referred to a third party who acts as the arbiter. His decision is generally obeyed by both the parties. The arbiter may be a tribal chief or a priest. But with the passage of time, the judicial organ of the state is given power to decide cases between the parties. While deciding a case and pronouncing a judgment, the judges generally apply their own common sense and justice. This is known as Judge-made laws or case laws. Justice Holmes Commented that “judges do and must make laws”. The principle by which a judicial decision becomes a precedent is known as “Stare Decisis”.
(D) Scientific commentaries
Chief Justice Hughes of the U.S.A. opines that ” We are living under a constitution and the constitution is what the judges say it is”. The law needs interpretation and the scientific commentaries and interpretations by eminent jurists have contributed a lot for the evolution of a legal system. The views of Blackstone in the U.K., Kent in the U.S.A. have made tremendous impact on the legal system of their respective countries. The opinions of these expert legal luminaries are always kept in high esteem by the judges and the courts.
The term ‘equity’ literally means ‘just’, ‘fairness’ and according to ‘good conscience’. When the existing law is inadequate or silent with regard to a particular case, the judges generally apply their common sense, justice and fairness in dealing with such cases. Thus, without ‘equity’ the term law will be devoid of its essential quality.
This is the most important and modern source of law. The legislature is that organ of the state whose primary function is to make laws. To Leacock the legislatures deliberate, discuss and make laws. Thus, law can be defined as the opinion of the majority legislators. They are recorded in the Statute Book. When the legislature is not in session, the executive is empowered to issue ordinances, decrees etc. which are as good as the laws made by the legislatures
Besides the above six sources of law we can add two more sources of law in the present days. The executive in a parliamentary democracy has the support of the majority legislators in the legislature enabling it to make laws according to its choice. The executive in a presidential system can influence legislation in the floor of the legislature through its party men. With the advent of time, the legislature is required to make laws in a large number of subjects. Due to paucity of time, the legislature makes laws in the skeleton form and the flesh and blood is added to it by the executive. This is termed as ‘delegated legislation which has considerably enhanced the role of the executive in the field of legislation. Public opinion in this age of democracy plays a vital role in the process of lawmaking. In Switzerland, with direct democracy, public opinion is reflected through Landsgeminde, Referendum and Initiative, which paves the way for making laws for the state.