SOURCES OF LAW

According to Salmond, there are two main sources of law:

1) Formal/Actual sources: the formal sources of law are derived from the validity and
origin of the law. Validity means from where the law gets its validity while the origin
is meant to be the point from where the law came into existence.
The formal sources of law vary from definition to definition of the law. According to
the natural law definition, morality and ethics will be the formal sources of law. In
Customary law, the behavior or conduct of the people with each other will be its
formal source of law. following Austin’s positive school of thought, legislation,
monarch, or parliament would be the formal sources of the law. While the internal
willingness of people is also a formal source of law. In addition, the judges’
perspective of the formal law sources would be the judicial source.
2) Material Sources: according to material sources of law, the law is derived from the
matter not from the validity. It provides us with the content present in the law means
what the law contains. The material sources have two types:
a) Legal material sources: these are the instruments or the organs of the state.
The legal material sources of the law are the authoritative by which the legal
rules are created. The legal sources of law include:
I. Legislation: This signifies the statutes of the law.
II. Custom: not all customs are the sources of law but the customs which
are recognized and accepted by the law are the material sources of
law.
III. Precedents: statements of law, made in the previous authority of the
Superior Courts.
b) Historical Material sources: these are the sources where rules subsequently
turned into legal principles. The historical sources of law firstly are in an un
authoritative form, which is not legally binding upon the people. The Acts of
Parliament and the work of Bentham are examples of the historical sources of
English law. The legal boundness of material historical sources depends upon
 their acceptance by the legislature and judiciary. The historical sources of law
are divided into the following two categories:
I. Religious and morality. The religious and morality
II. Literary source of law: the literary sources of law are divided into
further following types:
a) Commentaries: The commentaries' sources are used by the judges to
justify and analyze them by reading the comments of different jurists.
b) Doctrinal writings: all the theoretical work or the principles of the jurists/
scholars/ advocates would be doctrinal writing. For example the doctrine
of frustration, the doctrine of privity, etc in the law of contract. H.L.A Hart’s
pure theory of law, etc.
c) Academic writings and textbooks: the books or any other academic
writings by the professors and students. These are not actual and
authoritative books but can be accepted by the Courts. Examples: the book
of jurisprudence, the legal ethics book, etc.
d) Legal journals: these journals include all the law-related material/articles
which are used by the courts to get guidance and help in the judgment and
decisions.
e) Dissertation/thesis: the research of the scholars on the law which are
accepted by the law.
f) Obiter Dictum: judge's comments or remarks, in passing, on a matter
arising in a case before him which do not require a decision.
g) Encyclopedias: refer to the books of law or any other sources of law from
the information is gathered or assembled. It contains useful background
information and provides many references to relevant statutes and cases.
For example American jurisprudence and corpus secundum etc.

KEETON’S CRITICISM: Keeton mainly criticizes the unsatisfactory of the formal sources in
Salmond’s classification of the sources of the law. He says that sources of law are the
material out of which law is eventually fashioned. He gives his classification for the sources
of law as follows:
 a) Binding sources: the binding sources of law are obligated to the judge and he is
not free in their application; when practices are being conducted by the people
for a long time without any interruption, the customs become the binding
sources of law; legislation, judiciary and customary law are the binding sources
of law.
b) Persuasive sources: the persuasive source of law is only applicable at the point
where there are no binding sources. Professional opinions and the principle of
morality and equity are persuasive sources of law.

LEGISLATION

Broader sense perspective: it consists of the declaration of the rules of the competent
authority, according to Salmond.

Narrow/strict sense: legislation lying down on the rules for the future without the
reference of any actual dispute. Rules which are enacted by the legislation and by the
subordinate legislation are laws.

Judgment law, regarding any dispute before the judges in the court, is not legislation.

Widest sense: it includes any will-be legislation; every act of parliament will amount to
legislation except those which are not the laws.

LEGISLATION AS A SOURCE OF LAW

In modern times, legislation is considered as the most important source of law. The term
‘legislation’ is derived from the Latin word legis which means ‘law’ and latum which means
“to make” or “set”. Therefore, the word ‘legislation’ means the ‘making of law’.
The importance of legislation as a source of law can be measured by the fact that it is
backed by the authority of the sovereign, and it is directly enacted and recognized by the
State. The expression ‘legislation’ has been used in various senses. It includes every method
of law-making. In the strict sense, it means laws enacted by the sovereign or any other
person or institution authorized by him.
 Types of Legislation:

1) Supreme legislation: which proceeds from the supreme power is the supreme law. It
comes from the highest law-making authority in Pakistan's parliament is the supreme
legislation, in Saudi king, Brunei king. If parliament enacts any statute nobody can
repeal it. But if some laws which violate religious values can be challenged. In
England, supreme legislation cannot be challenged any court of law, if follows Austin’s
view of law. Then if Supreme Court declares any unconstitutional law it will be
amended.
2) Subordinate Legislation: Subordinate legislation is a legislation which is made by
any authority which is subordinate to the supreme or sovereign authority. It is
enacted under the delegated authority of the sovereign. The origin, validity, existence
and continuance of such legislation totally depends on the will of the sovereign
authority.

JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided judgments of the superior
courts, such as the High Courts and the Supreme Court, which judges are bound to follow.
This binding character of the previously decided cases is important, considering the
hierarchy of the courts established by the legal systems of a particular country. Judicial
precedent is an important source of law, but it is neither as modern as legislation nor is it
as old as custom. It is an important feature of the English legal system as well as of other
common law countries which follow the English legal system. In most of the developed
legal systems, the judiciary is considered to be an important organ of the State. In modern
societies, rights are generally conferred on the citizens by legislation and the main function
of the judiciary is to adjudicate upon these rights. The judges decide those matters based
on the legislation and prevailing custom but while doing so, they also play a creative role by
interpreting the law. Through this exercise, they lay down new principles and rules which
are generally binding on lower courts within a legal system. It is important to understand
the extent to which the courts are guided by precedents. It is equally important to
understand what really constitutes the judicial decision in a case and which part of the
decision is actually binding on the lower courts.

NATURE OF JUDICIAL PRECEDENT:

A judicial precedent is purely constitutive and never abrogative. It can create law but
cannot alter it. The judges are not at liberty to put their own views in place of settled law,
they can only fill in the gaps and remove imperfections of the existing laws.

KINDS OF PRECEDENT:
1. Declaratory and Original Precedents.
2. Persuasive precedents.
3. Absolutely Authoritative Precedents.
4. Conditional Authoritative Precedents.
1. Declaratory and Original Precedents:
According to Salmond, a declaratory precedent is merely the application of an already
existing rule of law. An original precedent creates and applies a new rule. A declaratory
precedent is not a source of new law whereas an original principle is.
There are several declaratory precedents of law, for the law on most of the points is already
settled, and judicial decision are mere declarations of pre-existing rules. On the other hand,
original precedents, though fewer in number, are greater in importance, as they alone
develop the law.
This distinction between original and declaratory precedents is based on two diametrically
opposite theories of precedents. One theory supported by jurists like Austin and
Friedmann coincides with the law-making role of the judge. In their view, some precedents
may be original because they laid down original new principles of law. Jurists like
Blackstone do not agree with this, and consider the precedents is the declaratory only, i.e.,
they merely reiterate and recognize principles of law the common law contains a rule for
every situation, and the judge’s function is only to discover and apply it to the case at hand.
This is known as the declaratory theory of precedent.
2. Persuasive precedents:
Persuasive precedent means precedent that a judge is not obliged to follow, but is of
importance in reaching a judgment, as opposed to a binding precedent. Persuasive
precedents assist the decision-maker in determining a case. Decisions of lower courts and
foreign courts can be persuasive precedents.
3. Absolutely Authoritative Precedents:
An authoritative precedent is one which the judge is bound to follow the irrespective of
whether he approves it. In other words, the judge has no choice. For instance, the decision
of the Supreme Court of Pakistan is binding on judges of the High Court. Similarly, a
decision of the High Court is binding on lower courts. In a system of precedent, the
decisions of superiors are always considered authoritative precedents. An absolutely
authoritative precedent is absolutely binding and must be followed without any question,
however, unreasonable or erroneous it may be appear to be. It has a legal claim to be
implicit and unquestioned by the court.
4. Conditional Authoritative Precedents:
Precedents of conditional authority are those which are binding but not absolutely. Thus, a
decision of a single judge of the High Court is only a conditional authoritative precedent for
a Judge of the same or another High Court.