CS Executive · Jurisprudence, Interpretation and General Laws

Sources of Law: formula sheet

Full chapter guide

Key formulas

Formal source: Formal source = the will of the State; origin of the binding force (validity) of law; The State's will gives law its authority. Legislation, precedent and recognised custom are the ways that will reaches the courts.
Material source: Material source = source from which law draws its matter; either legal or historical; Salmond's second tier. Legal sources carry binding authority; historical sources do not. Do not call every material source binding.
Legal source: Legal source = a kind of material source that is an authoritative channel of law; binding through the State; Courts must apply it. Examples: statutes, binding precedents, recognised custom.
Historical source: Historical source = a kind of material source that influenced the growth of law; no authority of its own; Examples: earlier legal systems, religious texts, juristic writings. It becomes law only when adopted through a legal source.
Link between the two splits: Formal/material = the State's will vs the sources of law's matter (primary); Legal/historical = split within material sources (secondary); Legal and historical sources are subdivisions of material sources. Do not treat the two splits as parallel pairs.
Meaning of custom: Custom = long-continued practice of a community + belief that it is binding + recognition by courts/State; Practice alone is not enough. Binding belief and recognition turn it into law.
Kinds of custom (Salmond): Custom → Legal (local, general) and Conventional (usage); Legal custom operates as law by itself. Conventional custom binds only through agreement of the parties.
Essentials of a valid custom: Antiquity + Continuity + Certainty + Reasonableness + Compulsory observance + Conformity with statute and public policy; Add that the custom must be proved by the person relying on it. Some texts add 'peaceable enjoyment' and 'uniformity'; mention them if you wish.
Custom vs statute: Statute > Custom (unless the statute saves the custom); A custom cannot override an express provision of law.
Meaning of legislation: Legislation = law deliberately enacted by a competent authority through a prescribed procedure; Use this as your opening line in any answer.
Classification: Legislation = Supreme + Subordinate; Supreme cannot be controlled by another authority; subordinate depends on a delegating authority.
Types of subordinate legislation: Colonial, Executive, Judicial, Municipal (local), Autonomic; Five commonly listed forms. Give a short Indian example for executive, judicial, municipal and autonomic forms. Colonial legislation has only a historical Indian example.
Codification: Codification = systematic collection and arrangement of law on a subject in a written code; Do not confuse with mere consolidation or a single Act. The Bharatiya Nyaya Sanhita, 2023 is a standard example; the Indian Contract Act, 1872 is only a partial codification.
Legislation vs precedent: Legislation: deliberate, general, written, and generally prospective (it operates retrospectively only if expressly or by necessary implication provided) | Precedent: from decided cases, fact-bound, developed case by case; a decision applies to the dispute that arose before the court, and later courts follow it; Use these contrasts for a difference question. Do not say simply that precedent is retrospective.
Ratio decidendi: Ratio decidendi = material facts + legal reasoning necessary for the decision; This is the only part of a judgment that forms binding precedent.
Obiter dicta: Obiter dictum = remark not necessary for the decision; Persuasive only. It does not bind.
Article 141: Law declared by the Supreme Court is binding on all courts within the territory of India; It covers the law declared, meaning the ratio. It does not bind the Supreme Court itself in the same way, which can depart from its earlier views, usually through a larger bench.
Hierarchy rule: Higher court binds lower courts; a larger bench binds smaller or equal benches; A High Court binds courts subordinate to it in its own territory. Other High Courts' decisions are persuasive.
Binding versus persuasive: Binding = must follow; Persuasive = may consider; Persuasive sources include other High Courts, foreign courts and obiter dicta.
Ways to depart from a precedent: Overruling = earlier decision declared wrong by a competent higher or larger bench; Distinguishing = earlier decision held inapplicable because the facts or law differ; Reversing is different: a higher court sets aside the decision in the same case on appeal.
Conventional law: Law from agreement = binding on the parties (or States) to it; A contract is not law for the whole public. Treaties need legislation in India to operate domestically.
Juristic writings: Juristic opinion = persuasive authority, not binding; Weight depends on the author's reputation and the reasoning. A court may accept or reject it.
Equity, justice and good conscience: Applied only when statute, custom and precedent are silent; It is a residual source. It cannot override an express statutory provision.
Treaty implementation: Article 253: Parliament may legislate to implement international agreements; A treaty does not by itself change domestic law without such legislation.

Quick revision

A source of law is where a legal rule derives its authority or content.
Formal sources give the rule legal force; material sources supply its content.
Legal sources are recognised directly by courts; historical sources influence law indirectly.
Custom is a long-practised usage that people treat as binding.
A valid custom must be ancient, continuous, reasonable and certain, and must not oppose statute or public policy.
Legislation is law made by a competent authority through a deliberate process.
Legislation is a prime source today because it is clear, general and can be changed to suit needs.
Stare decisis means courts follow earlier decisions on the same point.
Binding precedent must be followed; persuasive precedent is only considered.
Ratio decidendi is the binding part of a judgment; obiter dicta is not binding.
Agreements, juristic writings and equity are supplementary sources, not primary ones.
Equity fills gaps and softens rigid rules to do fairness.

Common mistakes

Treating formal and legal sources as the same thing. Fix: Remember: the formal source is the State's will, which gives validity. Legal sources are a kind of material source: authoritative channels such as statutes and precedents through which that will is declared.
Saying all material sources are binding. Fix: Only legal sources bind, through the State's authority. Historical sources such as earlier legal systems, religious texts and juristic writings have no force until a legal source adopts them.
Treating custom and usage as the same thing. Fix: Remember: legal custom binds as law; usage binds only by agreement of the parties. Write this as your first point of difference.
Saying any habit followed by many people is a valid custom. Fix: Always add that the practice must meet the essentials and be proved. Without recognition by courts or the State it is not law.
Saying supreme legislation has no limits at all in India. Fix: Say that supreme legislation cannot be controlled by another legislative authority, but Indian legislatures work within the Constitution and are subject to judicial review.
Mixing up subordinate legislation with precedent because judges are involved in judicial legislation. Fix: In Salmond's scheme, judicial legislation means subordinate legislation made by judges under delegated power, such as rules of court. Precedent is law from the reasoning in decided cases. Some writers also use the term loosely for the law-making effect of precedent, so state which sense you use.
Treating the whole judgment as binding. Fix: Always say that only the ratio decidendi binds. Obiter dicta is persuasive.
Saying every High Court decision binds all courts in India. Fix: A High Court binds only courts subordinate to it. Other High Courts' decisions are persuasive.
Saying juristic writings are binding on courts. Fix: Write that they are persuasive only. A court may use them for guidance but may reject them.
Treating every contract as law for everyone. Fix: State that conventional law binds only its parties. Wider effect needs legislation or custom.

Exam tips

Always state the basis of each classification. Examiners reward the test, not just the label.
For distinction questions, use point-wise comparison on basis, meaning, binding force and examples.
Add Indian examples such as the Constitution, Acts of Parliament and Supreme Court decisions.
Name the jurist (Salmond) only when you are sure of the point attributed to him.
Keep short notes to a definition, two heads, examples and a one-line conclusion.
Draw a small classification chart (Custom → Legal/Conventional → Local/General) before the explanation. It earns clarity marks.
In a distinguishing question, give at least four points in a clear two-column style, written in lines. Do not stop at two.
Always cite Salmond for the idea that custom gains legal force through recognition, but do not invent case names.