In summary, sources of case law can be classified on the basis of several reasons. But the most notable or common classification divides it into legislation, precedent and habit. The precedent refers to previous court decisions. The legislator refers to the legal provisions enacted by the legislator. Habit refers to the age-old practices of a community that has so consolidated its presence that it becomes law. Although legislation seems to be the body through which we obtain laws, it is only the main source. Many of the laws we have reflect what we have followed as a society for generations. Many cases also show that sometimes the law of the country is inadequate or unable to foresee what problems might arise in subsequent disputes. This requires the judiciary to develop or interpret the law of the land and to set precedents for several issues.
In every developed legal system, there is a judicial body that decides on the rights and duties of citizens. A number of jurists have set precedents in their own way. Gray defined precedents as: “A precedent covers everything that is said or done that provides a rule for subsequent practice.” [9] A precedent is considered one of the most important sources of law. This is a previous instance or case that is binding or convincing for a court when deciding a subsequent case with similar facts. The principle that judges are bound by primacy is called stare decisis, which means sticking to the decision. A binding precedent is one where previous decisions must be followed. It exists when the facts of the latter case are sufficiently similar to those of a previous case. Allen[4] criticized Salmond for not shedding much light on the historical sources of law. According to Allen, historical sources of law carry a lot of weight and should be more important. Keeton[5] also criticized Salmond`s classification. He says that “in modern times, the only formal source of law is the state, but the state is an organization that enforces the law.” Therefore, according to Keeton, the state cannot technically be regarded as a source of law. In jurisprudence, we do not study legal law, but we look at the nature of the law.
It does not refer to the study of law, but to the reason why the law was formed. Jurisprudence is the analysis of the “theory and philosophy of law.” Historical sources: Historical sources are those sources that are actually only and not authorized. Legislation is the main source of law and includes the declaration of legislation by a competent authority. Legislation can have many purposes, such as regulating, approving, permitting, prohibiting, providing resources, sanctioning, granting, declaring or restricting. Mr. Riddhi Goyal and Ms. Divpreet Arora, Sources of Law in Jurisprudence: An Overview, Vol.3 & Issue 2, Law Audience Journal (e-ISSN: 2581-6705), pages 04-16 (August 9, 2021), available at www.lawaudience.com/sources-of-law-in-jurisprudence-an-overview/. These do not dictate validity, but influence the legal question. Material sources are divided into two types; Sources of law and historical sources. Historical or informal sources of law are considered questionable, as they have not yet been officially recognized by law. These are usually implied indirectly and convolutmentally. They pretty much influence the course of legitimate development, but they speak without power.
Sources of law refer to the origin of different laws and regulations. Even if the common sources of law go back to customs, precedents, etc., each jurist has established a different view of the sources of law in jurisprudence. Legal experts look at law from different angles and so we can find a wide range of classifications of sources of law. Even if jurists differ in their classification, it can be observed that the law comes from similar sources. There should be no reason for the dispute. Salmond, an English jurist, divided the sources of law into two main categories:[3] These are recognized as authoritative by the law itself. They have immediate effect, that is, they are the direct sources of law. The right deriving from the source of the right is divided into three categories: The material sources of the right are those sources from which the right derives its content or object, but not its validity.
There are two types of material sources, which are sources of law and historical sources. “All civilization is made up of law and order, and to understand law, one must study where it comes from or where law comes from, in other words, the sources of law. There is no uniform definition of sources of law. The general meaning of “source” is “origin”. The term “sources of law” may refer to the origin from which human codes of conduct arose and derived from them res judicata or bindingness. Legal sources have been interpreted in many ways by various jurists because of disagreements between them. The formal sources of law are the instruments through which the State expresses its will. In general, laws and precedents are the modern formal sources of law. Law derives its force, authority and validity from its formal sources. Sources of law are sources that are the instruments or organs of the State through which legislation is created, such as legislation and customary law. These are authoritative and legally followed by the courts. These are the gateways to new principles in the field of law.
Convincing sources are not binding, but will be considered if authoritative sources are not available for the decision on a particular topic. Examples of such sources are foreign judgments, principles of morality, equality, justice, professional opinions, etc. Each legal system contains rules of recognition that determine the construction of the new law and the evaporation of the old one. It is a principle of English law that any principle attached to a judicial decision has the force of law. Similar legal recognition is extended by the legislative effect of ancient laws and customs. These rules build the sources of law. A source of law is any fact which, in accordance with these fundamental rules, determines the recognition and recognition of a new provision as having the force of res judicata. Salmond, an English jurist, established two main categories as sources of law; Formal and material sources. The law usually comes from all the sources explained above.