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In this article, we are going to discuss the nature and sources of law in jurisprudence. Here, we will discuss what is the nature of the law and the sources of the law from where the law or human conduct came into existence and derived legal force and binding character. And the detailed study of the sources of the law will be discussed in the next upcoming articles.
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Introduction (Nature and Sources of law):-
As we know, Law and the legal system or rules for conducting human conduct in society are very important in any civilization. In modern times, no one can imagine the existence of a society without law and a legal system. Law is not only important for an orderly social life but is also essential for the survival of mankind.
It is well known that law is a dynamic concept; it varies with the development of society under various socio-economic and political conditions as per the rapid changes in modern times. These changes have given rise to new problems and issues that have to be dealt with by law through practical approaches to the interpretation of the law. While doing so, modern jurisprudence has to take into account the social ethos and changing patterns of society, which broadens its scope as a science of law.
Nature of law:-
Philosophers of law ask what is law? And what should it be? The nature and scope of jurisprudence depend on the ideology and nature of the society and according to the jurist’s own belief, the development of law is different and it varies according to the social and political situation.
The word law has different meanings for example in French, jurisprudence means case law. Due to the development of society, definitions are difficult to accept for all. The study of jurisprudence began with the Romans. The Latin word jurisprudence developed knowledge of law or skill in law.
The term law is used in two senses, first in the abstract and second in a concrete sense. The word ‘law’ when used in an abstract sense, means the system of law, such as the law of India, the law of defamation, law and justice, etc. Law in its concrete sense means a statute, act, ordinance, or other practice of legislative authority.
In the abstract sense, we speak of ‘law’ or ‘the law’ whereas, in a concrete sense, we speak ‘a law’ or ‘of laws’. Abstract law is ‘jus’ while concrete law is ‘lex’. It is, therefore, obvious that ‘the law’ and ‘a law’ are not identical in nature and scope.
Sources of law:-
Understanding the sources of law is necessary for a clear and complete understanding of the law. Sources of law means those sources from which laws or binding rules of human conduct originate. In other words, law derives from sources. Jurists have different views on the origin and sources of law, as they have in relation to the definition of law. As the word ‘law’ has many meanings, legal experts approach sources of law from different angles. For example, Austin considers the sovereign as the source of law while Savigny and Henry Maine consider custom to be the most important source of law. The Natural Law School considers nature and human reason to be the source of law, while theologians consider religious scripts to be the source of law. Although there are various claims and counterclaims regarding the sources of law, it is true that in almost all societies the law is derived from similar sources.
Common sources of law are codified law, judicial precedents, customs, judicial writings, expert opinion, morality, and equality. With the increasing popularity of the idea of constitutionalism, legislation and precedents are at the center stage among all the various sources of legislation.
Classification of sources of law:-
Salmond, an English jurist, has classified the sources of law into the following categories:
Formal sources of law:
These are the sources from which law derives its force and legitimacy. A law enacted by a state or sovereign falls into this category.
Material Sources of Law:
It refers to the content of the law. In simple words, it is all about the matter from where the laws are derived. Customs fall into this category of law.
However, if we look at contemporary legal systems and examine them, it can be seen that most of the legal systems are based on law. Also, it is equally true that sometimes customs play an important role in the legal system of a country. In some legal systems, court decisions are as binding as law.
Based on the above discussion, three major sources of law can be identified in any modern society:
2. Judicial precedent
These sources of law will be discussed in detail in the next articles.