SOURCES OF LAW
Contents
SOURCES OF LAW ACCORDING TO SALMOND
Formal and Material Sources of law
SOURCES OF LAW ACCORDING TO SALMOND
The meaning of the term “sources of law” differs from writer to writer. The positivists use the term to denote the sovereign or the State who makes and enforces the laws. The historical school uses the term to refer to the origins of law. Others use it to indicate the causes or subject matter of law. Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies certain rules to decide upon a case. Such rules are obtained from various places which are known as “sources”. He further goes on to give examples of the common sources of law such as codified laws, judicial precedents, customs, juristic writings, expert opinions, morality and equity. Holland has defined the term to mean the sources of the knowledge regarding law
Formal and Material Sources of law
According to Salmond source was that from which a rule of law, derived its force and validity. The formal sources of the civil law is one and the same, the will and the power of the state as manifested through courts of justice. The material source is that which is derived the matter not the validity of law.
According to Salmond, there are two main sources of law- formal and material. Formal sources are those from which law derives its validity and force, that is, the will of the State which is express through statutes and judicial decisions. He sub-divided the material sources into legal sources and historical sources. Legal sources comprise of legislations, precedent, custom, agreement and professional opinion. They are authoritative in nature and origin and are followed by the courts as a matter of right. On the other hand, historical sources are those which are originally found in an un-authoritative form and are subsequently admitted and converted into legal principles. For instance, precedents are a material source of law. However, domestic precedents are legal source whereas foreign precedents are historical source.
Salmond’s classification of the sources into formal and material sources is found to be unsatisfactory by critics. The editor for the twelfth edition of Salmond’s ‘Jurisprudence’ has classified the sources directly into legal and historical.
Kinds of
Sources of law:
Sources of law may be classified into - Formal Sources and Material Sources
i) Formal sources:
The formal sources law also be called the Actual or ultimate Sources of law.
According to Sir John Salmond, that "sources " from which a rule of
law derives its force and validity.
ii) Material Sources:
The material sources of law are those which give the matter or content of a
principal of law. As the word material suggests, material sources deal with the
substance, elements or constituent material of law. Material sources of law
tell us what is contained in the law.
According to Salmond, material sources are of
two kinds -
- Historical Sources and
- Legal
Sources
Historical
Sources:
Historical Sources of law are those which express the history or evolution for the principal of law and the circumstances through which it attained the form of law. These Sources are un-authoritative, they are Sources in fact but they have no legal recognition. And have only persuasive value. Historical Sources may become legal if they are recognized by law.
Example: Acts of Parliament is a Legal source and the work of H. L. A Hart is a Historical Source...
Legal Sources
Legal Sources are those Sources which are the instruments or organs of the State
by which legal rules are created.
Salmond has classified the Legal Sources of English Law into four divisions are
as follows:
a) Legislation
b) Precedent
c) Custom
d) Convention
A) Legislation :
which gives rise
to enacted law. According to Salmond Legislation is that source of law
which consists in the declaration of legal rules by a competent authority.
B) Precedent :
Precedents
signify past judicial decisions. Judicial Precedents are an important source of
law. They have enjoyed high authority at all times and in all countries.
C) Custom
Custom is also an important source of law.
Custom signifies the habits and practices of the people. Custom gives rise to
customary law.
According to
Salmond, Custom is the embodiment of those principles which have commended
themselves to the national conscience as principal of justice and public
utility.
D) Convention
An Agreement is the state of being in accord of conformity such as to agree to the details of a transaction. An agreement may be defined as the expression by two or more persons communicated to each other of a common intention to affect the legal relations
