Top Six Sources of Laws
Do you want to know the sources of Laws?
Law is a product of history. It has passed through various stages of development. Several elements have contributed to its evolution. In legal sense, the state is the main source of law. Professor T. E. Holland mentioned six sources of law.
1.Customs
2. Religion
3. Judicial Decisions
4. Scientific Commentaries
5.Equity
6. Legislation
1) CUSTOMS
Customs are regarded as the earliest source of law. In ancient period disputes between individuals were settled in accordance with the prevailing social customs. These customs, rituals and traditions in course of time became a basis for social life. They have immense utility. They promoted order in society. In due course, practices became usages. These customs were generally accepted by the community because of their general utility. As long as social relations were simple, customs provided the rules for promoting common interests. Marriage laws, social and moral customs are regarded as the by-products of social system at various points of time. Britain is renowned for the customs having great legal sanctity. They believe that "breach of convention is a breach of law". However, State cannot afford to ignore the deep rooted customs of the land. Even in the United States there prevailed some traditions which became a part of the constitutional frame work.
2) RELIGION
In ancient period, customs and religion were closely related to each other. The ancient city states were governed on the basis of divine laws. The early priests, kings and magicians played a key role in making laws supported by religion. These laws had the divine and spiritual sanctions. Religion served as the basis of laws in many states. The origin of the Hindu laws in India can be traced in the code of Manu. The origin of Mohammadan law can be traced in Sharieath. The proper sense of divine law is revealed to man from God. God is the ultimate , sources of divine law. Some states like Pakistan, Afghanistan, Iran and Arab nations have been following religious laws in their respective constitutions. Hindus and Muslims even today have their separate personal laws based on their religious beliefs and practices particularly in the matters of marriage and inheritance.
3) EQUITY
The term 'Equity' stands for the principles of fairness and justice. When the existing laws are inadequate, judges use their common sense and fair understanding to give relief to the party concerned. Equity is derived from the principle of natural justice. It is viewed as age made law. In this regard Henry Maine stated that equity is born of rules existing by the side of the original civil law founded on distinct principles. It supersedes the civil law in virtue of its superior sanctity. Equity denotes informal method of making new laws altering the old laws depending upon intrinsic fairness or equality of treatment. Professor Gilchrist emphasised this element as a source of law. He mentioned about the three aspects of equity namely (a) Exclusiveness (b) Concurrence (c) Auxiliary nature. Law is exclusive when it recognises certain rights which are not recognized by common law. Law is Concurrent when it recognizes the rights. But law does not provide adequate relief. It is Auxiliary when material evidence cannot be proved
4) LEGISLATION
Legislation become an important source of law in democracy. Most of the laws are passed by the legislative branch of the government. Legislation is considered as the direct source of law. Legislation became a significant element in enacting laws in modern times. While formulating laws, legislature represents the voice of the general public. The party in power and opposition in the legislature represent the legitimate demands of the people
5) JUDICIAL DECISIONS
Judicial Decisions are also considered as the most important source of law. At present social life has become more and more complex. As a result customs and religions could no longer be considered as adequate source of law. The judgements given by the tribal leaders in settling the disputes between the individuals and group in primitive society became a source of law. In a democratic state, legislature makes the laws, executive implements them and judiciary interprets them. The judges settle various disputes and review the constitutional propriety of laws. When a law is silent, judges will express their opinions to deal with such situations, with better arguments and evidences. Due to the complex social, economic and political conditions the existing laws could not give justice to the people. Therefore judicial decisions have become mandatory in delivering justice.
6) SCIENTIFIC COMMENTARIES
Scientific Commentaries are another important source of law. The views, comments and works of eminent jurists on law help in the formation of laws. Greater importance is assigned to the opinions of judges, jurists and lawyers in the formulation of laws. In the course of their commentaries the jurists points out the drawbacks in law, and suggest the solutions. These are applicable to everybody. In India Yajnavalka, the author of "Neetisaara" occupies a prominent place; Similarly Holebrooke and Blackstone in England are regarded as eminent jurists whose comments and scientific discussions on law were universally accepted as expositions on law. Great jurists like Kent of the United States and Jeremy Bentham of England have made valuable contributions through their comments on judicial matters.
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