1. Source of Law
The term “Source of Law” has been used in different senses
by different writes and different views have been expressed from time to time.
Sometimes, the term is used in the sense of the sovereign or the state from
which law derives its force or validity. Sometimes it is used to denote the
causes of law or the matter of which law is composed. It is also used to point
out the origin or legal concepts and ideas.
a. C.K Allen
C.K Allen uses it in the sense of agencies through which the
rules of conduct acquire the character of law by becoming definite, uniform and
compulsory.
b. Vinogradoff
Vinogradoff uses it as the process by which the rule of law
may be evolved.
c. Austin
John Austin refers to three different meanings of the term “Sources
of Law”. In the first place, the term refers to the immediate or direct author
of the law which means the sovereign in the country. Secondly, the term refers
to the historical document from which the body of law can be known, e.g, the
Digest and Code of Justinian. In the third place, the term refers to the causes
which have brought into existence the rules which later on acquire the force of
law. Examples are customs, judicial decisions, equity, legislation etc.
2. Legal and Historical Source
There are two sources of law namely.
a. A Formal Source
A source from which a rule of law derives its force and
validity and is the will and power of the state as manifestea in court of law.
It is opposed to the material sources.
b. Material Source
Means the material from which law is made. It is divided
into (a) Legal source, (b) Historical sources
i. Legal Sources
The legal source of law are those which are recognized as
such by the law itself. The different between the legal sources and historical
sources is that the former are allowed by the law courts as of right where as
the later have no such claim. The legal sources are four in number, namely;
(i-a) Legislation
Legislation is the process by which a new rule of law is
made by an express and formal declaration of an authority, recognized by law as
competent to frame such rules. Law thus made is known as statute law. In
Pakistan, such laws are made by the Provincial and central Legislature and in
cases of emergency by the President and the Governors of the Provinces.
(i-b) Precedent
Precedent is the process of making a rule of law by
recognition of new principles by the courts themselves while sitting to
administer justice. Such law is called precedents or case-law.
(i-c) Custom
Custom is the common conduct of a majority of persons with
the belief that such conduct is legal. Law produced in this way is known as
customary law.
(i-d) Agreement
Agreement, i.e., principle by which two or more persons are
bound in modification or supersession of the ordinary law, due to an agreement
arrived at between them.
3. Sources of Law versus of Sources of Rights
A source of right is one out of which a right arises or
which creates a right. Thus, an agreement creates rights between the parties or
a custom may sometimes confer such a right on some one. Source of right thus
means some fact which is legally constitutive of rights. Sources of law also
usually serve as sources of rights. Thus, sometimes sources of law operate as
sources of rights and sources of rights as source of law, but are not
necessarily so all in cases. The old English law of private acts of parliament
may be cited as an example. Such an act operated as a source of right the
married couple but was not a law for the rest of the population. A judicial
decision may create a right as between the parries litigating but it also
creates law for the rest of the citizens. While creating rights between the
parties it is called a judgment but in the latter sense it is called a
precedent. Custom may also give rise to right as well as to law. Thus, custom
may give rise to a prescriptive right of grazing cattle on land which does not
belong to the owner of the cattle.
0 comments:
Post a Comment