Fairfield Institute of Management and Technology

SALMONDS CLASSIFICATION OF SOURCE OF

LAW

Subject name: Legal Method

Subject code: 101

Submitted to: Submitted by:

DR. B.R. SAINI Name: Chirag Kataria
Enrollment no: IPU082814
Course: BA LLB
Semester/Section: 1st
 INDEX

Contents Page No.

Introduction 3
1.

2. Salmonds as classification of 6
law
3. Precedent as a source of law 7-9
4. Conclusion 10
5. Bibliography 11
 INTRODUCTION
LL.M IInd Sem Jurisprudence II (L- 2002) Sources of law Introduction The meaning of the
term “sources of law” differs from writer to writer. The positivists use the term to denote
the sovereign or the State who makes and enforces the laws. The historical school uses the
term to refer to the origins of law. Others use it to indicate the causes or subject matter of
law. Prof. Fuller, in his “Anatomy of the Law”, states that a judge interprets and applies
certain rules to decide upon a case. Such rules are obtained from various places which are
known as “sources”. He further goes on to give examples of the common sources of law
such as codified laws, judicial precedents, customs, juristic writings, expert opinions,
morality and equity. Holland has defined the term to mean the sources of the knowledge
regarding law. Salmond’s Classification According to Salmond, there are two main sources
of law- formal and material. Formal sources are those from which law derives its validity
and force, that is, the will of the State which is expressed through statutes and judicial
decisions. He sub-divided the material sources into legal sources and historical sources.
Legal sources comprise of legislations, precedent, custom, agreement and professional
opinion. Austin’s Classification: - Austin said that the term ‘source of law’ has three
different meanings: 1. This term refers to immediate or direct author of the law which
means the sovereign in the country. 2. This term refers to the historical document from
which the body of law can be known. 3. This term refers to the causes that have brought
into existence the rules that later on acquire the force of law. E.g. customs, judicial
decision, equity etc. Keeton’s Classification: - Keeton said that the sources of law has
emerged as a critique of Salmond’s classification. He defines the term as those materials
from which law is eventually fashioned through judicial activity. He classified the sources
of law into- binding sources and persuasive sources. Binding sources are those which have
to be necessarily followed by the courts. Legislations, judicial precedents and customs are
examples of such source. Persuasive sources are those which come into play when there is
absence of any binding source on any particular subject. Foreign precedents, professional
opinions and principles of morality or equity are examples of persuasive sources of law.
Custom as A Source of Law Introduction The word ‘custom’ is derived from an old French
word ‘Costume’. Some says that the word ‘custom’ is based on Latin word ‘Consuetudo’.
In Hindi the word ‘custom’ means ‘reeti’,‘vyavahar’,‘rasm’, or ‘riwaj’.Custom enjoys a
very important place in every legal system. Definition According to Allen – ‘custom as the
uniformity of habits or conduct of the people under like circumstances’ Salmond: -custom
as those principles that are acknowledged and approved not by the power of the state, but
by public opinion of the society at large. Holland: - He defined custom as “a generally
observed course of conduct.” Austin: - According to Austin, “custom is a rule of conduct
which the governed observe spontaneously and not in a pursuance of law set by a political
superior”. Halsbury: - custom is some kind of special rule which is in actual existence and
possible followed from time immemorial and which has acquired the force of law in a
specified territory, although it may be contrary to or inconsistent with the general law of
the land. Harprasad v. Shivdayal:- In this case the judicial committee of the Privy Council
observed, custom as a rule which in a particular family or in a particular district or in a
particular sect, class or tribe, has from long usage obtained the force of a law. Origin of
custom: - some jurists are of the opinion that customs originate because of necessity or
convenience. the opinion of the historical school that customs have their basis in the
common consciousness of the people .In analytical school assert that judicial decisions are
the basis of customs. Custom came into existence because of the tendency of human beings
to imitate each other. Essentials element of a valid custom 1) Reasonableness: - A custom
ought to be reasonable. Whether a particular custom is reasonable or not, shall depend
upon the discretion of the court. This is one of the most difficult question what is
reasonable? Allen said seems to be not that a custom will be admitted if reasonable, but it
will be admitted unless it is unreasonable . The divisional court of the king s bench defined
as “fair and proper, and such as reasonable, honest and fair-minded men would adopt”.
2)Conformity with Statutory Law: - In order to be valid, a custom must be in conformity
with statutory law. Most of the legal systems of the world have laid down. A rule that a
custom can be abrogated by a law passed by the legislature. However, in some cases, a
custom can even override the codified law. 3) Morality: - Mostly custom are on the basis of
morality. 4) Certainty: -custom must be certain. A custom, however, ancient must not be
indefinite and uncertain. Certainty is an indispensable condition of a valid custom. unless a
custom is certain it cannot be proved to have been time out of mind. Jessel M,R, said
“when we told that custom must be certain that relates to the evidence of a custom”. 5)
Observance: - Custom must be followed by the all person. 6) Continuity: - In order to be
recognized as a custom must be practice continuously. 7)Peaceful Enjoyment: - A custom
should have been enjoyed peacefully in the society in order to be recognized as law. 8)
Binding or obligatory force: - Blackstone stated that a custom must be supported by the
opinio necessitatis. The public which is affected by the usage must treat it as obligatory and
not a facultative one. 9)Public Policy :- A valid custom should not be opposed to public
policy .in this sence ,public policy implies the principles on which the social laws are based
. Classification of custom 1. Legal Customs 2. Conventional Customs 1. Legal Customs: -
These are those customs which are recognized by the courts and thus operate as the law of
the land. They are divided into two categories, A) General Customs: - These customs are
prevalent throughout the territory of a state and the general customs constitute one of the
sources of the common law of the land. They are considered to a part of the law of the
land. B) Local Customs: - These customs are applicable only to a particular locality, like,
city village, district etc. These are geographical local customs and personal local customs.
These customs of particular localities are recognised by the courts even in derogation of the
common law. 2. Conventional Customs: -The authority of conventional customs or usages
depends upon their implicit incorporation into contracts. These are those customs which
are incorporated into an agreement and are applicable only to the parties to that agreement.
Parties to an agreement may agree to follow then either expressly or impliedly. A
conventional custom is also called ‘usage’ When Custom Become Law: -There are two
theories 1. Historical Theory. 2. Analytical Theory. 1) Historical Theory: -The main
exponents of this theory are Karl Von Savigny, his disciple Puchta, Blackstone, and Sir
Henry James Summer Maine. According to Savigny, custom is per se law. He says law is
based on custom. A custom carries its justification in itself. According to Puchta, the
custom is independent of the law of sovereign. It is independent of any declaration or
recognition by the state. Sir Henry Maine regards custom as source of formal law.
According to Manu, “custom is transcendent law”.J.C.Gray also contends that great many
laws were brought in not only without the wishes of the people but against the wishes of
the great mass of them. Allen also pointed out that all customs cannot be attributed to the
common consciousness of the people According to this theory, the growth of law does not
depend upon the arbitrary will of any individual. Custom is derived from the common
consciousness of the people. It springs from an inner sense of right. Law has its existence
in the general will of the people. The Historical theory has been criticized by Paton as “The
growth of most of the customs is not result of any conscious thought but of tentative
practice” 2) Analytical theory: - The main exponent of this theory is Austin. According to
him, custom is not law in itself, but it is a source of law. If a custom is not recognized by
the legislation and approved by the judiciary, it will not become a law. Gray also says that
true view is that the law is what the judges declare. The legislation, precedents, customs
and morality are all sources of law. According to Holland, customs are not laws when they
arise but they are largely adopted into laws by State recognition. A custom is a law only to
the extent to which, and from the time, when the sovereign sanctions it. According to him,
custom is a legal material and source of law. This view is also supported by Salmond. Gray
also concedes that custom is one of the sources of law but it is certainly not the sole source
of law. The Analytical theory has been criticized by Allen in these words-“Customs grow
by conduct and it is therefore, a mistake to measure its validity solely by the element or
express sanction accorded by courts of law or by other determinate authority” Difference
Between Custom and Prescription: - 1. Custom is long practice operating as a source of
law; prescription is long practice operating as a source of rights. 2. Historically, a
prescription is a personal custom that is to say, a custom limited to a particular person or
his predecessor in title, whereas, a local custom is limited to an individual place. 3. When a
course of conduct is practiced for a time it gives rise to a rule of law known as custom, but
if it gives rise to a right, it is called prescription. 4. In case of custom, the old rule as to
time immemorial still subsists, but in case of prescription the fiction of lost grant operates
and it is governed by Statutory prescribed time. Thus, a prescriptive right to air and light
can be acquired by uninterrupted use for period of twenty years. 5. A custom originates
from long usage, whereas, a prescription originates from waiver of a right. 6. A custom
claim is based upon custom when it depends on a general rule of property. A prescriptive
right, on the other hand, is personal to the claimant. 7. The limitation of reasonableness
which, we shall see, applies to customary rights has no application to claim based on
prescription. 8. Custom is based on long usage, but prescription is based on lost grant and
operates as sources of right. 9. A custom must be reasonable and conform to justice, public
policy and utility, but that is not necessary in the case of prescription. 10. Custom is a
generally observed course of conduct and has the force of law on account of long usage.
Prescription means the acquisition of right or title by user or possession in the manner laid
down by law 11. Custom must be ancient to make it binding, whereas prescription requires
only a period of 20 years. 12. Custom has given rise to law, whereas, prescription has given
rise to legal rights. For further clarification you may reach us via E-mail-
[email protected] Mob- 7409496868 Smt. Sudeshna Assistant Professor I.L.S., CCSU
Meerut
There classification is as follows:
Salmond's Classification of Law
Salmond has given an exhaustive classification of laws. He has referred to nine kinds of
laws, which are as follows:
Imperative Law:
It means "a rule which prescribes a general course of action imposed by some authority
which enforces it by superior power either by physical force or any other form of
compulsion." 'Austin' was the main exponent of imperative theory of law, which defines
law as a command of the sovereign which persons are obliged to obey. It may be either
divine or human.

The human laws may be of three kinds-civil law, law of positive morality and law of
nations which is also called 'International law'. Civil law consists of commands issued by
the State to its subjects and enforced by its physical power. The law of positive morality
consists of rules imposed by society upon its members and enforced by public ridicule or
disapprobation. International law consists of rules imposed upon State by the society of
States and enforced partly by international option and partly by the threat of war.
Imperative law has two essential elements.

Firstly, the command of the sovereign must be general and addressed to a particular person,
secondly, the observance of law must not depend upon the pleasure of people, but it should
be enforced by some authority.

Physical or Scientific Law

Physical laws are laws of Science which are expressions of the uniformities of nature.
There is perfect uniformity and regularity in these laws and are not subject to change. For
example, law of gravity, law of motion, law of air-pressure etc.

Natural or Moral Law

Natural law is based on the principles of right and wrong. It includes all forms of righteous
action. Natural law has also been called universal law or eternal law. It is also called
'rational law' because it is based on reason. It embodies the principles of morality and is
devoid of any physical compulsion. Hugo Grotius made use of natural law to formulate
International law.

Other writers who based their legal philosophies on natural law principles are Aristotle,
Cicero, Kant, Locke, Pufendorf, etc. Natural law embodies the principles of natural justice
of which legal justice is more or less imperfect expression. Legal justice and natural justice
represent two intersecting circles, i.e. justice may be legal but not natural or moral or it
may be moral but not legal or it may be both legal and moral.

The three consequences of natural law are as follows:

It is in a position to render a human law void if it is repugnant to natural law.
During medieval period, natural law helped in development of judicial and legal process.
Natural rights of an individual acquired great importance in this period.
It has given strength to the international law to develop as a law.

Conventional Law
According to Salmond, conventional law means, "any rule or system of rules agreed upon
by persons for the regulation of their conduct towards each other."
It is a form of special law. For example, rules of a club or a co-operative society or any
voluntary organisation are instances of a conventional law. According to some writers, law
of nations which we call as International law is also a kind of conventional law because its
principles are expressly or impliedly agreed upon by the member States.

Customary Law
There are many customs which have been prevalent in the community from time
immemorial even before the states came into existence. They have assumed the force of
law in course of time.
According to Salmond:
any rule of action which is actually observed by men when a customs is firmly established,
it is enforced by the state as law because of its general approval by the people."

For example, the whole of Hindu law of marriage, adoption, succession etc is based on
customs prevalent in ancient Hindu society. There is a difference of opinion among jurists
about the authority of custom as a law. Some regard it as a proper Jaw while others treat it
simply as a source of law.

Particularly, the positivists do not accept custom as a proper law but treat it only as a
source of law. But historical jurists like Savigny and Henry Maine have recognised
customary law as far more superior to the law of the State.

Practical or Technical Law

Practical laws are rules meant for a particular sphere by human activity. The laws of
sanitation and health, building construction and architecture etc may be included in this
category.

International Law
The law of nations of the 18th century was named as International law by Bentham in
1780. It consists of rules which regulate relations between the states inter se. According to
Oppenheim, "International law is the body of customary and conventional rules which are
considered legally binding by civilised states in their inter course with each other." The
Permanent Court of International Justice (PCIJ) in SS Lotus case defined International law
as:
"Principles which are in force between all independent nations."
According to Starke, International law is defined as "Rules of conduct which States feel
themselves bound to observe and therefore do commonly observe in their relations with
each other, and which also includes:
the rules of law relating to functioning of international institutions and organisations, their
relations with each other and their relations with states and individuals,
certain rules of law relating to individuals so far as the rights and duties of such individuals
are the concerns of the international community.

Precedent as a Source of Law

In India, the judgment rendered by Supreme Court is binding on all the subordinate courts,
High Courts and the tribunals within the territory of the country.

In case of a judgment rendered by the High Court, it is binding in nature to the subordinate
courts and the tribunals within its jurisdiction.

In other territories, a High Court judgment only has a persuasive value. In Indo-Swiss Time Ltd.
v. Umroo, AIR 1981 P&H 213 Full Bench, it was held that “where it is of matching authority,
then the weight  should be given on the basis of rational and logical reasoning and we should
not bind ourselves to the mere fortuitous circumstances of time and death”.

Union of India v. K.S. Subramanium- AIR 1976 SC 2435- This case held that when there is an
inconsistency in decision between the benches of the same court, the decision of the larger
bench should be followed.

What is the meaning of Precedent as a source of law?

Till the 19th Century, Reported Court Precedents were probably followed by the courts.
However, after 19th century, courts started to believe that precedence not only has great
authority but must be followed in certain circumstances. William Searle Holdsworth supported
the pre-19th century meaning of the precedence. However, Goodheart supported the post-
19th century meaning.

Declaratory Theory of Precedence- This theory holds that judges do not create or change the
law, but they ‘declare’ what the law has always been. This theory believes that the Principles of
Equity have their origin in either customs or legislation. However, critics of this theory say that
most of the Principles of Equity have been made by the judges and hence, declaratory theory
fails to take this factor into regard.

Types of Precedents

1. Authoritative Precedent- Judges must follow the precedent whether they approve of it or
not. They are classified as Legal Sources.
2. Persuasive Precedent- Judges are under no obligation to follow but which they will take
precedence into consideration and to which they will attach such weight as it seems proper to
them. They are classified as Historical Sources.

Disregarding a Precedent- Overruling is a way by which the courts disregard a precedent.

There are circumstances that destroy the binding force of the precedent:

1. Abrogated Decision- A decision when abrogated by a statutory law.

2. Affirmation or reversal by a different ground- The judgment rendered by a lower court

loses its relevance if such a judgment is passed or reversed by a higher court.

3. Ignorance of Statute- In such cases, the decision loses its binding value.

4. Inconsistency with earlier decisions of High Court

5. Precedent that is sub-silentio or not fully argued.

6. Decision of equally divided courts- Where there is neither a majority nor a minority
judgment.

7. Erroneous Decision

Custom as a Source of Law

Salmond said that ‘Custom is the embodiment of those principles which have commended
themselves to the national conscience as the principles of justice and public utility’.

Keeton said that “Customary laws are those rules of human action, established by usage and
regarded as legally binding by those to whom the rules are applicable, which are adopted by
the courts and applied as a source of law because they are generally followed by the political
society as a whole or by some part of it”.

However, Austin said that Custom is not a source of law.

Roscoe Pound said that Customary Law comprises of:

1. Law formulated through Custom of popular action.

2. Law formulated through judicial decision.
3. Law formulated by doctrinal writings and scientific discussions of legal principles.

Historical School of Jurisprudence- Von Savigny considered that customary law, i.e. law

which got its content from habits of popular action recognized by courts, or from habits
of judicial decision, or from traditional modes of juristic thinking, was merely an
expression of the jural ideas of the people, of a people’s conviction of right – of its ideas of right
and of rightful social control.

However, it is the Greek historical School that is considered as the innovator of custom as
source of law.

Otto Van Gierke, a German Jurist and a Legal Historian, said that “every true human
association becomes a real and living entity animated by its own individual soul”.

Henry Maine believed that custom is the only source of law. He said that “Custom is a
conception posterior to that of themestes or judgment.”

CONCLUSION

According to Salmond, there are two main sources of law- formal and material.
Formal sources are those from which law derives its validity and force, that is, the
will of the State which is expressed through statutes and judicial decisions. He
sub-divided the material sources into legal sources and historical sources
 BIBLIOGRAPHY

 http://www.legalserviceindia.com/legal/article-4045-
nature-sources-and-schools-of-law-under-
jurisprudence.html

 https://www.srdlawnotes.com/2017/04/definition-and-
kinds-of-sources-of-law.html