1
Sources of Law (1) Formal sources; (2) Material Sources
Introduction:
In order to fully understand the concept of law, it is also
necessary to know from where the law came or in other words
what are the sources of law.
However, before we study the various sources of law, it is
necessary to know the meaning of the term source.
The general meaning of the word source is origin or
beginning. There is difference of opinion among the jurists
about the origin of law.
Difference of opinion:
There is a difference of opinion among the jurists about the
origin of law.
Austin says that law originates from the Sovereign. Savigny
traces the origin of law in volkgeist i.e. general consciousness
of the people. According to Savigny law is prehistoric. In all
societies it is found already established like their language,
manners, and political organization. The law like language
develops with the life of people. About the development of
law, Savigny says that in the earlier stages law develops
spontaneously according to the principle of internal necessity.
According to Savigny customs are based on the popular
consciousness of community. Hence, according to Savigny
custom is the source of law.
Henry Maine considers that in the beginning law was made
by the commands of the ruler believed to be acting under the
divine inspiration and in the second stage the commands
crystallize into customary law. In the third stage
administration of custom goes into the hands of a minority
usually of a religious nature. Then, comes the era of codes.
The static society do not go beyond the era of code but
progressive society develop their law by new methods i.e.
legal fiction, equity and legislation. Thus Henry Maine
considers customs, religious scripts, legal fictions, equity and
legislation as sources of law.
Natural law school considers nature and human reason as the
source of law.
Theologians on the other hand believe that law originated
from God. For example Vedas and Quran which are primary
sources of Hindu and Mohammedan law respectively, are
considered to have been revealed by God.
There is another meaning also of the expression source of law.
In this sense the term source means its literary sources i.e. the
sources from where actual knowledge of the law may be
gained. Markby uses the expression source of law in this
sense. According to Markby there are threefold sources of law
viz. (1) Statute (2) Reports of decided cases and (3) Scientific
treatises or text books. In proper sense these are sources of our
knowledge of the law, and not the origins of the law itself, for
law has necessarily to exist before they are recorded in any of
these places.
Really speaking, whatever may be considered as source or
origin of law, it has originated from almost similar sources in
most of the societies.
Classification of Sources of Law:
Salmond has divided the sources of law into two classes:
Formal sources are those sources from which the law derives
its force and validity. For example, Parliament, King, State
legislature.
Material source of law is that source from which law derives
not its validity but the matter of which it is composed. An
example of this source is Custom.
Material Sources are divided into two classes:
(1) Legal and (2) Historical
Legal sources:
Legal sources are those sources which are authoritative. They
are authoritative because they have been recognized as
authoritative by the law itself. These are also called immediate
sources of law. The law which comes through the legal source
may be divided into the following classes:
1. Enacted law, having its source in legislation.
2. Case law, having its source in precedent.
3. Customary law, having its source in custom.
4. Conventional law, having its source in agreement.
Historical Sources:
Those sources of law which are not legal sources have been
kept by Salmond under historical sources. Thus besides the
sources of law mentioned above, all other sources of law are
Historical sources. They are also sources of law but they are
not authoritative i.e. they have no legal recognition and
therefore they are not binding on the judges. They are purely
persuasive. These sources operate indirectly or mediately.
Under this class come the juristic writings, foreign decisions,
opinions of text book writers and many other things from
which a judge derives help in shaping his judgment. Historical
sources become legal sources if they are recognized by law as
such either by legislation or by judicial decision. In other
words Historical sources become Legal Sources when they are
incorporated in law.
Criticism:
The classification of sources of law into formal and material
made by Salmond has been criticized by many writers. Allen
criticizes Salmond for his attaching little importance to the
historical sources. Prof. Allen says that historical sources carry
weight. The gist of the matter is whether it will be so applied
as a source and not whether it is binding.
Keeton too has criticized Salmond’s classification of formal
sources. According to Keeton, in modern times, the only
formal source of law can be the State. But the State is an
organization enforcing law. Thus State is enforcing authority
of law and cannot be considered as a source of law in the
technical sense. According to Keeton the expression ‘source of
law’ means the material out of which it is composed.
Keeton’s Classification of Sources of Law:
Keeton has given his own classification of the sources of law:
1. The Binding Sources of Law: These sources are binding
on the judge and a judge is not independent in their
application. They are customs, legislations and judicial
precedents.
2. Persuasive Sources of Law: These sources are useful only
when there is no any binding source of law on a particular

point. Examples of such sources are professional opinions,
principles of morality or equity, foreign decisions etc..
Conclusion:
Really speaking, the authority sanctioning or enforcing law
should not be regarded as the source of law. The term source
of law should be taken to mean those agencies from which the
law emanates, or in other words, from where a rule of action
has come into existence.
Hence, State cannot be regarded as source of law. Salmond’s
classification of formal and material sources of law simply
indicates what Keeton says binding and persuasive sources of
law.
If we see the legal system of modern times, we would find that
most of the laws are made by legislation. Hence legislation is
the most important source of law. Interpretations given to the
legislation or rule of law laid down by the superior courts on
any point of issue on which there is no legislation, are binding
on the lower courts. So the decisions i.e. (judicial precedents)
of the superior courts are also sources of law. Customs also
play a very important role to determine the rights and
liabilities of the parties especially on matters not covered by
legislation or precedent. Sometimes customs are expressly
saved by legislation and sometimes they (customs) are
confirmed by decisions. Hence customs are also source of law.
Further the judges in giving decisions take help from many
other sources also, such as juristic writings, foreign decisions,
moral considerations and social values of the time and place.
So these are also sources of law.
A more logical classification of the sources of law can be
made on the basis of their nature – whether they are legally
binding or persuasive only. Legislation, precedent and custom
may be regarded as the binding sources of law and the rest as
persuasive sources of law.
So first we shall discuss in detail the legally binding sources of
law and thereafter we shall discuss the importance of
persuasive sources of law.
2
CUSTOM
Introduction:
In the early stages of the society the customs are the most
important, and in some cases the sole source of law. However,
with the progress of the society they gradually diminish and
legislation and judicial precedents become the main sources.
Custom, as a source of law, involves the study of a number of
its aspects such as its origin and nature, its importance,
reasons for its recognition, its classification and the essentials
of a valid custom.
The Origin of Custom:
Regarding the origin of customs there are different and
divergent views. Jurist of Historical School Savigny (of
Germany) say that they originate from the common
consciousness of the people. One view is that customs came
into existence due to necessity or convenience. Some say that
man’s nature of imitation is the main cause of the origin of
customs. Any particular conduct imitated by a group of people
for a long time becomes a custom. Some jurists view that
judicial decisions are the basis of customs.
Decisions as the basis of custom:
Henry Maine in his theory of legal evolution, says that in the
beginning the judgments of the kings under divine inspiration
were the basis of the customs. Customs developed on the basis
of those judgments. Ihring also supports the same view. He
says that people will not impose liability upon themselves
(which the customs sometimes do) by their own will until they
are compelled by courts. Later on, these judgments became
customs. Gray also says that custom often arises from judicial
decisions.
However, recent anthropological researches have exposed
that these assumptions are false. Customs did not develop
from consciousness of the people nor from judicial decisions.
They are the results of tentative practice. When problems
arose, some solution was to be found out. Then the same
solutions were followed in similar cases and in this way it
became a custom.
Holland says customary rules existed among people long
before nations or states came into being. In primitive times,
there was little organized sanction behind these customs as it
is in a modern state. It was the necessity and the force of
public opinion which ensured their compliance. When the
State comes into being and the society develops, they are
rationalized and recognized and grow as part of the law.
Reasons for recognition of Customs:
If society has for a long time continued a practice which
determined their rights and liabilities and if it is not opposed to
public or reason, there is no wisdom in disturbing or removing
it. It is not possible to enact law for every matter. The only
requirement is that the law should be definite and clear. It
matters little from what source it has come – by legislation or
by any other source.
Classification of Customs:
Customs in their wider sense may be divided into two classes:-
(1) Custom without sanction; and

(2) Customs having sanction.
1. Customs without sanction are those customs which are non-
obligatory. They are observed due to pressure of the public
opinion. Austin’s term for them is ‘positive morality’. For
example, various rites, alms to the poor, faishon etc.
2. Customs having sanction are those customs which are
enforced by the State. It is with these customs that we are
concerned here. These may be divided into two classes:-
(A) Legal, and (B) Conventional.
A. Legal Customs:- These customs operate as a binding rule of
law. They have been recognized by the courts and have
become a part of the law of the land. They are enforced by the
courts. Legal Customs may be divided into two classes:-
(a) General Customs, and (b) Local customs.
(a) General Customs or General legal customs:
General customs are those customs that prevail throughout the
territory of the State. Though the term custom is commonly
understood as prevailing to certain locality, the customs which
are treated to be the part of the law of the land are considered
as general customs.
(b) Local Customs:- By local customs is meant those customs
which apply only to a defined locality e.g. to a district, or a
town. However, local customs do not always apply to a
geographical locality only. Sometimes, certain sects or
families take their customs with them wherever they go. They
too are called local customs. Therefore, local customs may be
divided into two classes viz. (i) Geographical local customs
and (ii) Personal local customs i.e. those customs which are
law only for a particular locality, sect or family.
(B) Conventional Customs: Conventional customs are those
customs which govern the parties to an agreement. Parties,
sometimes, expressly and sometimes impliedly (it means that
they are considered to have agreed) agree to them. They are
called usages also. Such customs are binding not due to any
legal authority independently possessed by them, but because
it has been expressly or impliedly incorporated in a contract
between the parties to it. One who makes a contract in any
particular trade or market, the presumption of law is that his
intention is to make the contract in accordance with the
established convention or usages of that trade or market. He is
bound by these conventions because they are treated as a part
of the contract.
Thus in an English case Hutton vs. Warren (1836) I.M. and
W. 466 it was held that a lease of agricultural land must be
read subject to the customs of that locality on that matter. In
the same way, in negotiable instruments a number of terms are
considered to have been incorporated on the basis of the
usages of the particular trade to which the negotiable
instrument pertains.
There are some conditions which must be satisfied before a
court treats the conventional customs as incorporated in a
contract:
1. It must be shown that the convention is clearly established
and it is fully known. It implies that both the parties were
aware of such a convention. There is no fixed period for which
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a convention must have been observed before it is recognized
as binding.
2. Conventions cannot alter the general law of the land.
Therefore, they are valid only when they are not opposed to
the enacted law.
3. They must be reasonable. The main function of these
conventions is to throw light only on such rights and liabilities
on the parties on which the contract is silent. If certain
conditions, or term though established by convention, are
expressly excluded by the parties in the contract, they will not
be enforced.
Position of Customs in various Legal Systems:
In all societies whether of the East or West, developed or
developing, primitive or modern, custom has played a
respectable role in the regulation of human conduct. Since
early society was governed by custom.
In India the Hindu and Muslim personal laws have been
mostly based on customs.
Hindus:
The smritis have strongly recommended that the customs
should be followed and recognized.
Manu says ‘One should follow the righteous path that has
been followed by one’s ancestors.’
Yajnavalkya’s view is ‘when a country is conquered, its
usages, customs and family traditions should be followed as
they were followed before’.
Narada says ‘custom is indeed powerful. It overrides the law.
The existing Hindu Law concerning marriage, succession,
adoption, divorce etc. in essence retains the customary feature
of old Hindu Law.
Article 13 (3) (a) of the Indian Constitution declares that law
includes custom or usage having the force of law.
Articles 25, 26, 28 and 291 of the Indian Constitution,
indirectly guarantee the protection of such customary practices
of a community which are not contrary to the concept of
secularism and democratic socialism.
Muslims:
The Mohammedan Law gives custom a very inferior place
among the sources of law. However, Mohammedan jurists said
that the customs which were not expressly disapproved by the
Prophet were good law.
English Law:
Customs have played a very important part in developing the
English ‘Common Law’. Salmond says ‘Common Law’ is
essentially judge made law. However, in fact, the relation
between custom and Common Law is that although the
Common Law is judge made law, the judges took their
material from the customs. Much of the English law is still
customary.
Germany:
In Germany, the German Civil Code of 1901 is based on
general customs.
1
Under the heading ‘Right to Freedom of Religion’ in Part III
of the Constitution i.e. Fundamental Rights.

Essentials of a Custom
Certain tests or essentials have been laid down by the jurists
that a custom must satisfy for its judicial recognition or
validity. The essentials laid down by Blackstone are given
below:
1. Antiquity, 2. Continuance, 3. Peaceable enjoyment, 4.
Obligatory Force, 5. Certainty, 6. Consistency, 7.
Reasonableness, 8. Conformity with statute law.
1. Antiquity:
Allen, Paton, Salmond and all other jurists are of the view that
custom to have the force of law, must be in existence from
time immemorial.
English Rule: A custom to be recognized as law must be
proved to be in existence from time immemorial i.e. no one
knows how old the custom is or time of its origin cannot be
ascertained. However, an arbitrary time limit has been fixed,
that is the year 1189, the first year of the reign of Richard I,
King of England. In other words under English law for
validity of a custom, it must be proved that the custom has
started before the year 1189. By a fiction of law, human
memory is made to extend for about 800 years. In England
presumption of law is that the customs which are old and
whose time of origin cannot be ascertained must have started
before the year 1189. However, if it could be shown that a
custom came into existence at any time later than1189, the
presumption to antiquity shall be defeated.
Indian Rule:
In ancient Hindu Law also, the antiquity was one of the
essentials for the recognition of custom. Manu said:
“Immemorial custom is transcendental law.”
The law in India, at present is that antiquity is essential for the
recognition of a custom, but there is no such fixed period for
which it must have been in existence as it is in the English
Law. This is clear from the following cases:
The Allahabad High Court as early as in 1895 in Kaur Sen vs.
Mamman (1895) ILR 17 All. 87 laid down that it would be
improper to apply English rule of 1189 in India as it would
destroy many customary rights of modern growth in villages
and other places.
The Calcutta High Court in Ambalika Dasi vs. Aparna Dasi
(1918) ILR 45 Cal’835 expressed the view that either 1773 or
1793 A.D. should be the date for treating a custom as
immemorial if it has been in existence since then.
However, the Privy Council in Mussammat Shubhani vs.
Nawab (1941) Lah. 154 at p. 188 observed that it will depend
upon the circumstances of each case what antiquity must be
established before the custom can be accepted. What is
necessary to be proved is that the usage has been acted upon in
practice for such a long period and with such invariability as
to show that it has been by common consent submitted to as
the established governing rule of the particular district.
The Supreme Court also in Gokul Chand vs. Pravin Kumari
Air 1952 SC 231 held that the English rule that a custom in
order to be valid must be in existence from the time
immemorial should not be strictly applied to Indian customs.
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The Andhra Pradesh High Court in Venkata Subba Rao vs.
Bhujqangarrrya AIR 1960 A.P. 412 held a custom as valid
which was in existence for 40 years.
2. Continuance: the second essential of accustom is that it
must have been practiced continuously. Any interruption in the
exercise of the custom within legal memory defeats the
custom.
In England, the custom must have been enjoyed continuously
since 1189 without any interruption. If a custom has been
disturbed for a considerable time a presumption arises against
it.
However, Blackstone has drawn a distinction between the
interruption of the ‘right’ and the interruption of the mere
‘possession.’ It is the discontinuance of the ‘right’, for
howsoever small a time, which ends the custom. It means that
if possession for some time is disturbed, but the claim to enjoy
the custom is not abandoned, the custom continues.
According to Blackstone, if the inhabitants of a certain town
have a customary right to water cattle from a certain pool, the
custom is not destroyed if they simply did not use it for ten
years. It only becomes more difficult to prove that such a
custom existed. However, if the right is anyhow discontinued
for a day, the custom comes to an end.
In Mercer vs. Denne (1904) 2 Ch. 534 – a customary right of
the fishermen to spread their nets on a part of the seashore to
dry them was defeated on proof that some time in the 18 th
century that particular part of the seashore was submerged.
In an Indian case, Mussammat Sadhan vs. Pratap Narain
(1941) Oudh 401 – the custom that houses and shops
constructed by the rayats in the village abadi could not be
transferred without the landlord’s permission was defeated on
the proof of the existence of transfers made without the
landlord’s permission or objection
3. Peaceable Enjoyment:
The third essential of a valid custom is that the custom must
have been enjoyed peaceably. If a custom has been in dispute
for a long time in a law court, or otherwise, it negatives the
presumption that it originated by consent as most of the
customs naturally might have originated.
4. Obligatory Force: the custom must have an obligatory
force. It must have been supported by opinion necessitates i.e.
by the general public opinion and enjoyed as a matter of right.
The public which is affected by the custom must regard it as
obligatory.
A custom is supposed to derive its force and validity from the
sanction of the people. The community as a whole must regard
it as a binding rule of law and not a matter of individual
choice.
If practice was maintained by stealth or by something of that
sort, it cannot become a custom.
5. Certainty: A custom howsoever ancient must be definite
and certain. A custom which is vague or indefinite cannot be
recognized. It is more a rule of evidence than anything else.
The court must be satisfied by a clear proof that custom exists
as a matter of fact, or as a legal presumption of fact.

6. Consistency: Custom must not come into conflict with the
other established customs. There must be consistency among
the customs. It is, therefore, that one custom cannot be set in
opposition to the other custom.
7. Reasonableness: A custom must be reasonable.
Unreasonable customs are void. Reasonableness is a very
difficult test which a custom must pass through. It gives a
good deal of discretion to the court in the matter of recognition
of the customs.
However, it does not mean that the courts are at liberty to
disregard a custom whenever they are not satisfied as to its
absolute uprightness and wisdom or whenever they think that
a better rule could be formulated in the exercise of their own
judgment.
Certain standards have been established on which the courts
should proceed.
The reasonableness will not be judged with every change in
social conditions. It has been settled that the time to decide
reasonableness of a custom is the time of its origin.
Prof. Allen says that the rule regarding reasonableness is that a
custom must be accepted unless it is unreasonable and ‘not
that a custom will be admitted, if it is shown reasonable.
For declaring a custom unreasonable it should be shown that it
is obviously opposed to reason.
For example, in R. vs. Karson 2 Bom. H.C.R. 124, a custom
allowing a woman to abandon her husband and marry again
without his consent though of immemorial antiquity was held
void being immoral.
Similarly in Raja Varmah Valia vs. Ravi Varmah Kutty 1
Mad. 235 – the custom allowing sale of religious office was
held to be unreasonable as opposed to public policy and
therefore unenforceable.
Some writers include public policy also among the test of
custom. They say that a custom should not be opposed to
public policy. It is submitted that the word reasonableness is a
very wide term and it may include public policy as well.
8. Conformity with Statute Law: A custom, to be valid, must
be in conformity with statute law. Statute can abrogate any
custom howsoever ancient it may be.
Though according to the view of the Historical School, a
custom is superior to statute and it can supersede a statute.
However, this view has nowhere been recognized in practice.
For example, in India most of the Hindu customs relating to
marriage, adoption, succession or property have been
abrogated by the newly enacted legislations.
Similarly, custom of child marriage and usage of dowry has no
legal force in modern times in India.
5
Legislation
Meaning:
1. The common meaning of legislation is the making of law2.
2. Legislation means to make rules for human conduct by am
authority which has power to do so.
3. In its widest sense the term legislation includes all methods
of law making. To legislate is to make new law in any fashion.
In this sense the term legislation includes all the sources of
law and not merely one of them. Thus when a judge
establishes a new principle by means of a decision, he is said
to exercise both judicial and legislative powers.
4. In its widest sense the term legislation includes executive
orders, judicial formulations and Parliamentary legislation.
5. However, in the technical sense, the term legislation means
a statute which is enacted by a legislative organ as
distinguished from other organs viz. executive and judiciary.
6. In England a distinction is made between statute law or
written law and the common law; and only the former is called
legislation.
7. In India however, there is no common law.
8. In India, legislation is that which is enacted by Parliament
or State legislature and rules, bye – laws and regulations made
by virtue of statutory powers. [Examples of bye laws may be
the laws made by Railway Co. University, Joint Stock
Company etc.
9. legislation thus includes delegated legislation but does not
include administrative orders which derive their force from
executive authority and not from any law made by the
legislature.
10. Though every action of the legislature is generally
regarded as legislation, the legislature does not always confine
its action to the making of rules.
For example, Parliament may ratify a treaty with a foreign
country; it may alter the calendar or establish a uniform time
throughout the country or alter the coinage, or declare war or
make peace or annex or abandon territory. All this may be
legislation in a wide sense but they will not be declaration of
legal principles with which we are concerned here as a source
of law.
Supreme and Subordinate Legislations:
1. Salmond has divided legislations into two categories viz.
Supreme legislations and Subordinate legislations.
2. The division of the legislation in these two categories is
based upon the British legislative system and practice.
3. In England Parliament is said to be a supreme law making
body and all legislations directly emanating from British
Parliament is said to be supreme legislation because laws
enacted by Parliament in Britain cannot be declared illegal or
ultra vires by the courts in England.
2
The term legislation is derived from two Latin terms i.e.
‘legis’ which means law and ‘letum’ which means to make,
put or set. So the meaning of the term legislation is to make
law, to put law or to set law.

4. With this background in view, Salmond divided legislations
in the above tow categories viz. Supreme legislations and
Subordinate legislations.
5. Supreme legislations are those legislations which proceed
from the supreme or sovereign power in the State (Country),
and which is therefore incapable of being repealed, annulled
or controlled by any other legislative authority.
6. However, in many other countries sovereignty does not
mean that the legislator’s powers are unlimited in every way.
Although according to Austinian theory no legal limitations
can be imposed on Sovereign’s authority, in most of the legal
systems there are rules defining the area within which the
sovereign is competent to legislate. This type of limitation
occurs in the written constitution of many countries. The
legislations made by such sovereign authorities can also be
called supreme legislations.
7. Thus in India the law made by the Parliament and State
legislatures may be regarded as supreme legislations.
Subordinate Legislations:
1. Subordinate legislation is that which proceeds from any
authority other than sovereign power and is, therefore
dependent for its continued existence and validity on some
superior or supreme authority.
2. Salmond says the laws enacted by Parliament in England
are the examples of supreme legislation and other rules, bye
laws, regulations made by other bodies in pursuance to the
legislation of Parliament are the examples of subordinate
legislation because such rules and regulations can be
controlled by the Parliament itself and reviewed by judicial
courts. The examples of subordinate legislation according to
Salmond are:
(i) Colonial legislation, (ii) Executive legislation, (iii) Judicial
legislation, (iv) Municipal legislation and (v) Autonomous
legislation.
Colonial Legislation:
1. The countries which are not independent, and are under the
control of some other state (country) have no supreme power
to make law.
2. Such countries are of various classes: such as colonies,
dominions, protected territories etc.
3. The laws made by them are subject to the supreme
legislation of the State under whose control they are. Thus it is
subordinate legislation.
4. Britain previously had many colonies and dominions. The
laws made by them for the self government are subject to
alteration, repeal or suppression by the legislation of the
British Parliament at Westminister.
5. As now-a-days colonies are fastly achieving independence,
almost all the British dominions now have uncontrolled power
for legislation. Therefore, in the near future we may not have
this class of subordinate legislation.
Executive Legislation:
1. A Government consists of three branches or organs:
legislative, executive and judiciary.
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2. The function of the legislative organ is to make laws, that of
the judiciary to administer justice and of the executive to
execute the laws or in other words to run the administration.
3. In some countries all the three are separate and independent
of each other. In some others legislative and executive are not
separate and independent of each other.
4. The executive organ in addition to its usual functions
sometimes makes law also. This power to the executive is
delegated by legislature. In modern times it has become
almost inevitable.
5. The legislative body enacts the fundamental laws and the
executive supplements it with details.
Judicial Legislation:
1. The superior courts are given limited powers to make
general rules for the regulation of their own procedure.
2. In India the Supreme Court and the High Courts both have
the power to make rules for their respective procedures and
administration. This is really legislation in the true sense of the
term. This differs from the rules which the courts formulate
through judicial decisions.
Municipal Legislation:
1. Local bodies like Municipal Corporations, District Boards,
Panchayats etc. are given powers to make bye-laws
concerning their local matters.
2. The laws made by these bodies are also subordinate
legislations.
3. There is a move for granting very wide powers to
Panchayats. Thus there is a possibility of expansion of this
kind of subordinate legislation in our country.
Autonomous Legislation:
1. These are legislations (laws) made by private persons or
groups who are given a limited legislative powers to make
laws touching matters concerning themselves.
2. For example, Universities, Railway Board, Life Insurance
Corporation, State Trading Corporations, Companies
registered under the Companies Act etc. are given powers to
make laws for matters concerning themselves.
Legislation and Custom:
1. The existence and authority of legislation is de jure whereas
the existence of custom is de facto.
2. The legislation is the express will of the State whereas
customs are based on the will of the people.
3. Legislation is an advanced method of legal development
and it is the characteristic of a mature legal system. Customs
have their sway mainly in primitive society. With the
advancement of civilization either they are abrogated or
embodied in legislation.
4. Customs deal with the relationship between man and man.
Legislation always brings the state into picture. It cannot come
into being until State or some alike entity comes into
existence.
5. Legislation is a superior and more authoritative source of
law than customs.
Legislation and Precedent:

1. In precedents rules and principles are laid down by
inductive3 method. In legislation the deductive4 method is
adopted.
2. Legislation has also abrogative power. It not only creates
law but it can also abrogate an existing law, existing in
whatever form – statute, precedent or custom.
3. Precedent is only constitutive. When a rule is established as
law, a precedent cannot abrogate it. Thus precedents can work
successfully only for any legal growth and not for any legal
reform which can be done only by legislation.
4. Statute law is definite, brief, clear and easily
understandable. In precedent, to know principles and rules one
will have to look into the details of the case.
5. Statute can make rules for future cases which may arise. A
precedent can lay down a rule when a case comes before it.
6. The very aim of legislation is to make law. The main
purpose of precedent is to interpret the law.
7. The operation of legislation is generally prospective, though
it may be retrospective also if it chooses. The rules laid down
in a decision operate from the date of the transaction which is
the subject of the dispute.
8. Salmond says: ‘Case law is gold in the mine – a few grains
of the precious metal to the tones of useless matter – while
statute law is coin of the realm5 ready for immediate use.
Place of Legislation among the Sources of Law:
Superiority between Legislations and Precedents6:
1. There is a difference of opinion among the jurists about the
importance and the place of legislation among the sources of
law.
2. The jurists belonging to analytical school emphasize the
supremacy of legislation over all other sources of law.
3. The jurists of the analytical school say that law can be made
only through legislation and regard the judge made law as an
unauthorized encroachment upon the powers of the legislature.
4. Austin and Bentham who belong to analytical school
contend that legislation is always superior to precedent and
custom and between precedent and custom, precedent is
superior.
5. According to the view of analytical jurists a statute is made
after due deliberation and not in that haste in which a judge
disposes of his cases.
6. Further, a statute is certain, clear, comprehensive, and easily
accessible. It passes through the scrutiny of a great number of
men before it becomes law, whereas the case law is the result
of the whim of certain individual, so the legislation should
have superiority over precedent.
7. On the other hand the supporters of case law say that case
law is more practical because it is laid down after a careful
3
Adding, explaining, enlarging.
4
Sorting out
5
kingdom, domain
6
Whether precedent is superior to legislation or legislation is
superior to precedent is a controversial question.
7
study of facts and the various circumstances of the case
whereas the statute law is abstract and rigid in nature.
8. Salmond, a great supporter of case law says ‘case law, with
all its imperfections, has at least this merit that it remains in
living contact with the reason and justice of the matters.
9. American jurist Gray says that case law is not only superior
to statutory law, but all the laws are essentially judge made
laws. The courts put life into the dead words of the statute.
Conclusion:
1. It may be submitted that the supporters of both the views
have made exaggerations.
2. In the present age, legislation as well as precedent both are
equally important and one cann9ot attain its end without the
other. Thus both contribute equally to the development of law.
For the planned progress of the society legislation is very
much necessary. To give proper effect to the legislation, its
interpretation by the courts is also necessary which gives rise
to the case laws.
Superiority between Legislations and Customs:
1. The jurists of the Historical School attach no importance to
legislations.(or precedents). According to them it is not
possible to make law by legislative actions.
2. The function of legislators according to the jurists of the
Historical School is only to collect customs and give better
form to them.
3. On the other hand jurists of the Analytical School consider
customs simply as the rule of positive morality.
Conclusion:
1. It may be submitted that both the views need modifications.
2. In modern times, legislation is the most potent source of
law. In the early times there was no legislation and therefore
the relations and conducts of individuals were regulated by
customs.
3. Legislation takes its birth when the State comes into being.
With the advancement of society, legislation starts replacing
customs.
4. In the beginning legislation only embodies customs. But
when new problems arise, the customs are abrogated and new
rules are established by legislation.
5. Since the 19th century in civilized countries legislation has
become the dominant law making force.
6. In recent years the sphere of legislation has very much
widened. Statutes regulate even the most ordinary conduct of
individuals, such as walking on the road.
7. Thus in modern times legislation is the most important
source of law.
The Advantages of Legislation over Precedent:
The doctrine of statutory supremacy and inherent advantages
of developing law by statute has been well recognized. The
following may be noted as advantages of legislation over the
development of law by precedents.
(i) The statute has got abrogative power. It not only can create
new rules of law, but can sweep away inconvenient rules. So it
is both constitutive as well as abrogative; whereas precedent
can only be constitutive because once a rule is formulated by
decision; it is not overruled easily. Therefore, if a precedent is

unsound, it is very difficult to remedy the defect. That
becomes a slow and expensive process. So even erroneous
decisions left unchallenged becomes rules of law, which can
be abrogated quickly by legislations only.
On the other hand the defects in legislation may be removed
either by interpretation of it by the courts or by amendment by
the legislature itself. The legislature can repeal today what it
enacted yesterday.
(ii) A statute can lay down the law in advance i.e. before the
cases have actually arisen, whereas case law can be created
only when the dispute comes before the court. As such the
superiority of legislation lies in the fact that, ‘legislation
satisfies the requirement of natural justice that laws should be
known before they are enforced.
Bentham has criticized the judges power to make law in the
following terms: “It is the judges that make the common law.
Do you know how they?
8
Precedent
1. Every developed legal system possesses a judicial organ.
2. The main function of the judicial organ is to adjudicate the
rights and obligations of the citizens and persons living within
its jurisdiction.
3. In the beginning, in this adjudication the courts are guided
by customs and their own sense of justice.
4. As society progresses, legislation becomes the main source
of law and the judges decide cases according to it.
5. Therefore, judicial precedent as a source of law is neither as
old as custom nor as modern as legislation.
Definition of Precedent: