Following are the sources of law:
Customs play a decisive role in the framing of the laws. Most of the laws spring from the customs and are recognised by the state. If we turn the pages of political history, we come to know that in the Tribal Age. Whenever there arose a dispute between the two members of a tribe that dispute was resolved by the head of the tribe. In resolving the dispute the head of the tribes used to seek the help of customs and traditions. These customs became laws when tribes extended into the states. No state can afford to ignore the customs of the country.
MacIver has very aptly remarked in this connection, “In the great book of law the state merely writes new sentences and here and there scratches out an old one. Much of the book was never written by the state at all and by all of it the state itself is bound, save as it modifies, the code from generation to generation. The state can no more reconstitute at any time the law as a whole than a man can remake his body”. The Common Law of England sprang mainly from customs.
In the primitive community religion played a decisive role in the framing of laws. Religion served as the basis of law in most of the countries. Woodrow Wilson has beautifully pointed out in this regard, “Indeed the early law of Rome was little more than a body of technical religious rules, a system of means for obtaining religious rights through the proper carrying out of certain religious formulas”.
The origin of the Hindu Law in India can be traced in the code of Manu. Likewise, the origin of Mohammedan Law can be traced in Shariat. In the sense of the term Divine law is a law revealed through man from God. God is t ultimate source of divine law, though man may promulgate it.
3. Judicial Decisions:
Judicial decisions play an important role m t framing of laws. Gettell maintains that the state “arose not as the creator of law but as the interpreter and enforcer of custom”. The function of the Judiciary is to interpret and declare the law.
But in discharging its function the judiciary creates new laws. The laws are later on recognised by the state. In this way, Judicial Decisions are another source of law. In discharging his duty of resolving the dispute by interpreting the law, the judge sometimes imparts verbal decisions and these decisions can be referred in later cases.
In modem courts when there is an ambiguity in a particular law, the judge interprets it in his own way and thus creates a new rule. In course of time, this new rule is recognised by the state and it becomes a law. Sometimes, the decisions of Supreme Court and High Courts are treated as laws.
Another source of law is equity. In the words of Sir Henry Maine, Equity is “anybody of rules existing by the side of the original civil law, founded on distinct principles and claiming incidentally to supersede the civil law in virtue of a superior sanctity inherent in those principles”. It is an “informal method of making of new law or altering old law, depending on intrinsic fairness or equality of treatment”.
As everybody knows, the function of a judge is to interpret law and a minister justice. But many times laws do not fit in every case. In the cases where laws do not fit in or when laws are ambiguous, principles of equity are applied and cases are decided according to commonsense and fairness.
5. Scientific Commentaries:
Scientific commentaries are another source of law. A scientific commentator, “by collecting, comparing and logically arranging legal principles, customs, decisions and laws lays down guiding principles for possible cases. He shows the omission and deduces principles to govern them. He provides the basis for new law, not the new law itself.
At first when the commentary appears, it is used only as an argument to convince but later on when its authority is recognised, it becomes more authoritative than judicial decisions. “The opinion of learned writers on law”, says A. Appadorai, “have often been accepted as correct law: in England, for instance, the opinions of Coke and Blackstone; in America of Story and Kent, in India of Vijnaneswara and Apararka”.
The last and the most important source of law is legislature. In modern times most of the laws are framed by Legislature.