Introduction 

The Latin word jurisprudentia, which means “science or knowledge of law,” is the root of the English word “jurisprudence.” It is a very broad field of study that encompasses numerous philosophies and theories about the origins of law. The study’s scope also encompasses how law interacts with people and other social structures. We derive law from many different sources. Many jurists and academics have tried to categorise the origins of law. However, laws, court precedents, and conventions are the most prevalent sources across all of these categories.

Law and sources of law

The Law of the State or of any organised organisation of men is constituted of the rules that the courts, which are the body’s judicial organ, set forth for the determination of legal rights and obligations, according to John Chipman Grey, a former professor at Harvard Law School. Gray separated law from the sources of law, despite criticism that his definition was too restrictive. He contends that case law and other legal sources have helped to shape the development of the law and provide the basis for its legality. Law, in its simplest form, refers to the regulations or standards of behaviour, and sources relate to the sources of its information.

Types of sources of law

John Salmond, a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources. 

Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources. 

Legal sources 

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories- 

• Legislation, 
• Precedent, 
• Customary law, and
• Conventional law. 

Historical sources

Historical sources have an impact on the evolution of legislation without affecting the legitimacy or authority of the law. These resources indirectly affect the laws. All laws have a historical foundation, although they may or may not have a legal foundation. This is the difference between legal and historical sources. Examples of this type of source are judgments rendered by foreign courts.

Formal sources 

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources. 

According to Keeton, the classification given by Salmond was flawed. Keeton classified sources of law into the following: 

Binding sources 

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs. 

Persuasive sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgments, principles of morality, equity, justice, professional opinions, etc. 

Precedent as a source of law

The judgements made by courts in various cases are referred to as judicial precedents. A judicial ruling establishes a rule of law that the lower courts must follow. The courts below must follow the precedent set by a court’s decision in a specific case when making decisions in cases with comparable facts. The following are a few of India’s most significant legal precedents:

Kesavananda Bharati v. the State of Kerala (1973): This decision established India’s basic structure theory, which prevents the removal of the Indian Constitution’s fundamental provisions.

Punjabi State v. Gian Kaur, 1996: According to this ruling, Article 21 of the Indian Constitution does not provide the right to die. Everybody has the right to a dignified death, the court said. The right to a dignified death was distinguished from the right to an unnatural death by the court.

In Maneka Gandhi v. Union of India (1978), the court ruled that the Passports Act, 1967’s Section 10(3)(c) was invalid because it contravened Articles 14 and 21 of the Indian Constitution.

Indra Sawhneyv. Union of India, (1992): This ruling placed a 50% cap on reservations for underprivileged groups. It further argued that economic backwardness alone cannot serve as the sole criterion for group classification as “backward classes.”

Theories of precedent

1. Declaratory theory: Declaration of existing law by the judges is known as declaratory theory. Judges only declare the existing law.
2. Original precedent theory: Law making by the judge known as original precedent theory judge are the lawmakers the role of judge is creative particularly when the law is absent.

Principles of precedent

The doctrine of Stare Decisis 

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed. 

In India, lower courts must follow higher courts’ precedents, while higher courts must follow their own precedents. But when it comes to High Courts, one High Court’s ruling does not control the other High Courts. The lower courts must follow their judgments. The more recent judgement should be followed when there is a disagreement between judgments rendered by courts having the same authority. The Supreme Court’s rulings are enforceable by all courts nationwide in accordance with Article 141 of the Indian Constitution. However, the Supreme Court does not have to follow its own judgments. The Supreme Court may depart from its earlier ruling in later instances if there are compelling reasons to do so.

Doctrine of Res Judicata 

Res Judicata refers to subject matter that has been decided. According to this doctrine, unless new relevant facts have been discovered, the parties are prohibited from bringing up the same subject in court after a lawsuit has been resolved. They cannot present a different issue relating to the same claim because they could have done so in the earlier lawsuit.

Ratio Decidendi 

Salmond defines a precedent as a court decision that has a legal concept and the ratio decidendi, which is an authoritative component. Ratio decidendi translates as decision’s rationale. Even though there is no statute or precedent pertaining to a matter, a judge must rule on it whenever he receives it for judgement. The rationale for the decision, also known as the ratio decidendi, is the principle that directs such a choice.

Obiter Dicta 

The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgment of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles. 

Prospective overruling:

The Supreme Court has the authority to reverse decisions made by subordinate courts by a different bench of justices with a larger number of judges than the prior bench. It is a contemporary practise that permits the court to fix its mistakes without having an impact on its prior dealings.

Types of precedents 

Authoritative and Persuasive

Authoritative precedents are those that, whether or not they are accepted by lower courts, must be followed. They produce clear and unambiguous laws. They are considered to be legitimate sources of law. On the other hand, persuasive precedents don’t bound the judges to anything. The judge has the discretion to use persuasive precedents.

Authoritative precedents can be classified into the following two types: 

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong. 

Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so. 

Original and Declaratory 

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgment. It is a mere application of law. An original precedent creates and applies a new law. 

Factors increasing the authority of a precedent 

1. The number of judges constituting the bench that makes the decision. 
2. A unanimous decision has more weight. 
3. Approval by other courts, especially the higher courts. 
4. The enactment of a statute that carries the same law subsequently. 

Factors decreasing the authority of a precedent 

1. Abrogation of judgment by reversal or overrule of a higher court.
2. Abrogation of judgment by a statutory rule enacted subsequently. 
3. Affirmation or reversal of decision on a different ground. 
4. Inconsistency with the previous decision of a higher court. 
5. Inconsistency with previous decisions of the court of the same rank. 
6. Inconsistency with already existing statutory rules. 
7. Erroneous decision. 

Legislation as a source of law

Rules or laws passed by the government’s legislative branch are referred to as legislation. It is one of the most significant legal precedents in jurisprudence. Legislation is a combination of the Latin words latum, which means making, and legis, which means law.

Types of legislation 

According to Salmond, legislation can be classified into two types- Supreme and Subordinate. 

1. Supreme legislation 

When passed by a supreme or sovereign law-making authority, legislation is referred to as being supreme. The body must possess sufficient authority such that the rules or laws it enacts cannot be overturned or changed by another body. Since the laws the Indian Parliament passes can be overturned in court, it cannot be regarded as a legally independent body. The British Parliament, on the other hand, is regarded as a sovereign legislative body since the legitimacy of the legislation it passes cannot be contested in a court of law.

2. Subordinate legislation 

Subordinate legislation is referred to as legislation passed by a subordinate legislative body. A sovereign entity with the power to make laws must have delegated such power to the subordinate body. It is under the top legislative body’s supervision. The various types of subordinate legislation include the following:

• Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature. 
• Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament. 
• Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts. 
• Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws. 
• Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc. 
• Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation. 

Custom as a source of law

Custom is a code of behaviour that has the explicit blessing of the community that upholds it. There were no institutions that served as centers of power in prehistoric cultures. As a result, individuals began organising into strong social groupings in an effort to uphold justice, equality, and liberty. They ultimately began to recognise the customs and rituals that the society consistently followed and developed a systematised method of social control. Marriage and divorce laws in India are mostly derived from the practises of various religious communities. Additionally, a number of Scheduled Tribes communities have their own marriage-related traditions. As a result, Scheduled Tribes are exempt from the application of this Act under Section 2(2) of the Hindu Marriage Act of 1955.

 Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments”. Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine: 

1. At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God. 
2. At the second stage, following rules becomes a habit of the people and it becomes customary law. 
3. At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalize customs.
4. The final stage is the codification of customs. 

Types of customs 

1. Customs without a binding obligation 

There are social practises that people adhere to that are not governed by the law. These practises concern marriage, clothes, and other things. A social boycott rather than legal repercussions can be the only outcome of not complying by such customs.

2. Customs with a binding obligation

The term “customs having a binding obligation” refers to practises that must be complied with by law. They have nothing to do with customs or social norms. The two primary categories of customs that have legal requirements are legal customs and conventional customs.

1. Legal customs: The rules of law have no exceptions. They are legally binding and must be followed to avoid penalties. General customs and regional customs are two categories of legal customs. A state’s entire area is governed by general customs. Local practises, on the other hand, are unique to certain locations.. 
2. Conventional customs: Conventional customs are those that can only be followed if they are accepted by a contract. Such a custom is solely binding on the parties to the contract that incorporates it. General and regional conventional customs are two different categories of conventional customs. Across a territory, general conventional customs are followed. On the other hand, local conventional customs are limited to a certain location or to a specific trade or transaction.

Conditions for a valid custom:     Certain conditions must be satisfied before a court is entitled to incorporate the usages into contracts.

1. The usage must be so well-established as to be notorious.
2. The usage must be reasonable.
3. Usage cannot alter the general law of land.
4. A usage should not nullify or vary the express term of the contract.

Requisites of Valid Custom: Following are the requisites for a valid custom, treated as law

1. Immemorial: For a custom to be legal, its antiquity must be established. Blackstone asserts that a custom must have existed for a very long time in order for it to be considered legitimate and binding. If anyone can trace the origin of the tradition, it is considered to be excellent custom.
2. Reasonable:A lawful custom must also be sensible, which is another need. The unreasonableness of a custom must be so great that its enforcement causes more harm than if there were no custom at all. Prof. Allen argues that custom’s unreasonableness, not its reasonableness, must be established..
3. Continuous: A custom must not continuously be observed and if it has not been continuously and uninterruptedly observed, the presumption is that it existed at all.
4. Peaceable enjoyment: The enjoyment of a custom must be a peaceable one.
5. Certainty: A valid custom must be certain and definite, if there is any ambiguities in it or it keeps changing, it is not a valid custom.
6. Compulsory Observance: If observance is required, a custom is considered valid. Observing anything optically is useless. A custom requiring all residents to contribute to the upkeep of a bridge will be beneficial, but one requiring each person to do so at his or her discretion is pointless and, in fact, is not a custom at all, according to Blackstone.
7. General Or Universal: The custom must be general or universal. In the absence of unanimity of opinion, custom becomes powerless or rather does not exist. A valid custom must not be opposed to public policy or the principles of morality.

Not Opposed With Statute Law:

1. a valid custom must conflict with the statute law of the country. According to Coke: No custom or prescription can take away the force of an Act of parliament.
2. According to Blackstone customs must be consistent with each other, one custom cannot be set up in opposition to another.

Theories of customs

There are two theories regarding the question as to when a question is transformed into law:

1. Historical theory
2. Analytical theory

(i) Historical theory: According to historical theory, the growth of law does not depend upon the arbitrary will of any individual. It does not depend upon any accident. It grows as a result of the intelligence of the people. Custom is derived from the common consciousness of the people. According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but is a condition to all sound legislation.

Criticism: According to Paton: The growth of most of the customs is not the result of any conscious thought but of tentative practice. According to Allen: All customs cannot be attributed to the common consciousness of the people. In many cases, customs have arisen on account of the convenience of the ruling class.

(ii) Analytical theory: Austin, Holland, and Gray are the advocates of analytical theory. According to Austin: Customs is a source of law and not law itself. Customs are not positive laws until their existence is recognized by the decisions of the Courts. According to Holland: Customs are not laws when they arise but they are largely adopted into laws by state recognition.

Criticism: By Allen: Custom grows by conduct and it is therefore a mistake to measure its validity solely by the elements of express sanction, accorded by Courts of law or by other determinate authority.

Reasons for Custom are given the force of law: Following are the reasons, why custom is given the force of law:

1. Principles of National Conscience: Custom is the embodiment of those principles which have commended themselves to the national conscience as principles of truth, justice and public policy. According to Salmond: Custom is to society what laws are to the state. Each is the expression and realization of the measure of man, insight and ability, of the principles of right and justice.
    
2. Expectation of continuance: Another reason for the binding force of custom is the expectation of its continuance is the future. Justice demands that this expectation should be fulfilled and not frustrated.
    
3. Observance by a large number of people: Sometimes a custom is observed by a large number of persons in society and in course of time the same comes to have the force of law.
    
4. Interests of Society: Custom rests on the popular conviction that it is in the interests of society. This conviction is so strong that it is not desirable to go against it.
    
5. Useful to the law giver: According to Paton: Custom is useful to the law-giver and codifier is two ways. It provides that material out of which the law can be fashioned. There is a tendency to adopt the maxim that whatever has been an authority in the past is a safe guide for the future.

Difference between custom and prescription 

The primary distinction between the two is that while prescription results in a right, custom results in legislation. Custom is typically followed as a standard of behaviour and is enforceable in law. A right or title is acquired by prescription. The prescription only applies to that specific person when a local custom affects society. For instance, when a person X’s ancestors have been freely grazing their cattle on a certain piece of land for years, X is granted the same permission to do the same. The privilege that X has obtained is known as a prescription. A prescription must be used consistently throughout time to be considered valid. In India, acquiring a right requires 20 years of continuous enjoyment.a right to light and air as per the Indian Easement Act, 1882. 

Conclusion 

In conclusion, there are various ways to categorise the sources of law in jurisprudence. The most noteworthy or typical classification, however, separates it into law, tradition, and precedent. The term “precedent” refers to earlier rulings by the courts. The statutory laws passed by the legislature are referred to as the legislation. The term “custom” describes the long-standing customs of a community that have become so entrenched in society that they have the status of law. Legislation is only the primary source, despite the fact that it appears to be the mechanism by which we obtain laws. Many of the regulations that exist now reflect the norms that our society has upheld for many years. Numerous cases also demonstrate how occasionally the law of the land is insufficient or unable to foresee the problems that might come up in subsequent disputes. As a result, the judiciary must clarify or interpret the law of the land and establish judicial precedents for various concerns.