Sources of Law for CS Executive: Concepts, Sources, and Legal Theories

Understanding the Sources of Law is one of the most important foundations in CS Executive Jurisprudence. Many students find this chapter difficult because it includes multiple classifications, legal doctrines, and jurist theories that require both conceptual clarity and memorization.

The real challenge in exams is not just remembering definitions but understanding how laws originate and how courts interpret them in real situations. Without clarity, students often confuse Primary and Secondary sources or mix up doctrines like Ratio Decidendi and Obiter Dicta.

Sources of Law Introduction

Understanding the origin and development of law is important for CS Executive preparation. This chapter explains where laws come from and how they are made, as well as the theories that define the nature of law.  While sources of law explain origin, jurisprudence focuses on the philosophical understanding of law and its interpretation by legal thinkers.

Sources of Law

Law is derived from various origins, broadly classified into two main categories:

• Primary Sources

• Secondary Sources

Primary Sources of Law

Primary sources are the fundamental origins from which law directly arises.

• Custom

• Judicial Precedents (Judicial Decisions)

• Personal Laws

• Acts/Statutes

Secondary Sources of Law

Secondary sources offer supplementary guidance when primary laws are insufficient or absent.

• Justice, Equity, and Good Conscience

• English Laws

• Mercantile Laws

Primary Sources of Law Overview

Let’s understand the main sources from which law directly originates and how each one forms the foundation of the legal system.

Custom

Custom is a major primary source, valued for long-standing and widespread observance.

Requisites for a Valid Custom

• Antiquity (Old Enough / Immemorial Antiquity)

• Certainty

• Reasonableness

• Compulsory Observance

• Conformity with Law and Morality

• General Acceptance

• Peaceful Enjoyment

• Consistency

Types of Customs

Customs are classified based on their legal recognition and enforceability, helping us understand how different practices are treated under the law.

Customs With Sanction

• Legal Customs

• Local Customs

• General Customs

• Conventional Customs

Customs Without Sanction

Not legally binding, but followed due to social pressure or morality

Judicial Precedent

Judicial precedent refers to past court decisions that act as a guiding source of law for future cases and help maintain consistency in legal judgments.

Types of Judicial Precedents

• Declaratory Precedent

• Original Precedent

• Absolutely Authoritative Precedent

• Persuasive Precedent

• Conditionally Authoritative Precedent

Doctrines Related to Judicial Precedent

• Obiter Dicta – Extra remarks not essential to judgment

• Ratio Decidendi – Core reason of judgment (binding part)

• Stare Decisis – Follow previous decisions

Acts/Statutes

Acts and Statutes are formal laws enacted by a competent legislative authority, primarily the Parliament, that form the written and enforceable framework of the legal system.

• Delegated Legislation

• Jus Scriptum – Written laws

• Jus Non Scriptum – Unwritten laws

• Supreme Legislation

• Subordinate Legislation

Personal Law

Personal laws are based on religion and govern marriage, inheritance, divorce, etc.

• Hindu Law – Shruti and Smriti

• Muslim Law – Quran, Hadith, Qiyas

Secondary Sources of Law Explained

Secondary sources of law provide supportive guidance to the legal system and are applied when primary sources are insufficient, unclear, or unavailable in deciding legal matters.

Justice, Equity and Good Conscience

This principle is applied when no clear law exists. It ensures fairness and justice in decision-making.

English Law Influence

The English legal system heavily influences Indian law:

• Common Law

• Law Merchant

• Principles of Equity

• Statute Law

Schools of Law (Jurisprudence)

Jurisprudence is the study of the theory and philosophy of law. 

Overview of Schools and Key Ideas:

• Natural School: Law is derived from reason and nature; it is God-made and universal. Jurists: Ulpian, Cicero.

• Analytical School: Law is the command of the sovereign. Focuses on "what law is." Jurist: John Austin.

• Historical School: Law evolves from society's history, customs, and traditions; it's not made but found. Jurist: Savigny.

• Ethical School: Law is intertwined with ethics and moral principles, aiming for justice. Jurists: Hugo, Hegel.

• Sociological School: Law serves social purposes, reflecting societal needs, and aiming for social engineering. Jurist: Roscoe Pound.

• Realistic School: Focuses on the actual practice of law by courts. "Law in action." Jurists: Holmes, Cardozo.

Key Jurists and Their Theories:

• Roscoe Pound (Sociological School): Proposed Social Engineering, where law balances individual, public, and social interests to maximize satisfaction and minimize conflicts.

• John Austin (Analytical School): Developed the Command Theory, stating that law is the command of the sovereign, backed by sanction (punishment).

• Jeremy Bentham: Advanced the Imperative Concept (Utilitarianism), viewing law as the command of the sovereign, focused on the "pain and pleasure" principle for the greatest number.

• Salmond: Emphasized that the purpose of law is to deliver justice.

• H.L.A. Hart: A proponent of Positivism, defining law as a system of rules or a command where non-compliance leads to punishment.

• Hans Kelsen: Advocated the Pure Theory of Law, arguing law should be studied purely, focusing on "what is" the law, excluding moral or political considerations.