Understanding the Key Sources of Law
According to Holland, the major sources of law are Customs, Religion, Equity, Judicial Decisions, Scientific Discussion, and Legislation. These sources have shaped legal systems throughout history and continue to influence modern jurisprudence.
1. Customs
Customs play a decisive role in the framing of laws. As the earliest source of law, customs have significantly contributed to its growth. Most laws originate from customs and are subsequently recognized by the state. In every society, people observe certain common rules of conduct, popularly known as customs. These customs can be defined as “a body of rules universally accepted and followed due to their utility.” When the state came into existence, it recognized some of these customs, which then acquired the status of law.
2. Religion
In primitive societies, religion played a decisive role in the framing of laws. Like customs, religion was an early school of law, highly influencing and regulating people’s social conduct. Over time, religious principles became deeply ingrained in human psychology. Modern jurists have incorporated these religious principles into the body of law. For example, in India, we have:
- Hindu Law based on the Code of Manu
- Mohammedan Law based on the Quran
- Christian Law based on the Bible
In ancient India, it was the duty of the King to uphold Dharma, and the source of Dharma was the Vedas.
3. Equity
Another source of law is equity, which means fairness or justice. Judges in every country have significantly contributed to the process of lawmaking. They create new laws in the course of their judicial decisions. Sometimes, a case may come before a judge for which existing laws are silent. In such cases, the judge will give their judgment by consulting their own sense of justice and fair play. In the words of Gilchrist, “Equity is an informal method of making new law or altering old law, depending on intrinsic fairness or equality of treatment.”
4. Judicial Decisions or Adjudications
Judicial decisions play an important role in the framing of laws. Gettell stated that the state “arose not as the creator of law but as the interpreter and enforcer of custom.” The function of the Judge is to interpret and declare the law. Through their interpretations, judges create new laws that are later recognized by the state. Thus, judicial decisions are another significant source of law.
5. Scientific Commentaries
Scientific discussions and commentaries are another source of law. The commentaries or writings of great jurists sometimes become an important source of law. They are valuable for lawyers and judges and are often referred to during the discussions of particular cases in a court of law. These commentaries provide the basis for new laws, not the new law itself. Initially, the commentary appears for the convenience of argument, but later, when its authority is recognized, it becomes law. For example, the commentaries of Blackstone and Coke greatly influenced the British legal system.