Sources of Law
The following are the sources of English Law
Customs and Usages
Custom and usage is the earliest sources of law. When there was no state, the people faced problem. They reacted to them in different ways. Slowly and gradually there emerged a kind of uniformity in these reactions. These were called customs and traditions. For example, there are still certain customs, which are observed by the people so for as their marriage, family relations, and inheritance are concerned. After the emergence of the state such customs and traditions were formally adopted and these were given the name of laws. These laws which are derived from customs are called customary laws. The best example of such law is the English Common Law.
Religion early time when people were not so civilized, certain kind of discipline was needed to maintain social unity. This was provided by the divine laws. People believed that the disobedience of such laws would be followed by divine wrath. In this way religious law became the source of law e.g. Quran and Sunnah is the source of laws in Islamic countries.
Judges do not make laws. They only apply and interpret laws. Sometimes when a ease is not covered by an existing law, the judges extend it by giving a new interpretation it. These are called judge made laws or precedents to be followed by the lower courts. Sometimes the legislature makes new laws based on such decisions. For this reason judicial decisions also become a source of law.
In every field we find experts whose opinions carry much weight. Same is the case with laws. There are many experts who express their opinions on laws. The experts’ opinions are not laws but they do have sonic importance because they help and guide the judges in their decisions and also the lawmakers in the making of laws. In England the commentaries of Cok, Hale and Blackstone are such sources for English laws. Among the Muslim there are the Hedaya, Fatawa-e-Altungiri and other writings of Fuqaha.
Sometimes a case comes before a judge, which (a) may not be covered by the existing law, (b) that the application of old laws may not meet the demands of justice and (c) when there exist no law at all to decide the case. In such circumstances tie judge will decide the case according to his own sense of justice. He will not apply any law. This is call equity.
There is difference between judge made law and equity. In the former case the fridge is guided by existing law whereas in the later case lie is guided by his common sense.
Legislation as Source of Law
In modem world things change very quickly and rapidly. So there is a need for the making of laws quickly, for this purpose in every state there is a department for making of laws. This department is called the legislature. So, today the bulk of the laws followed in every state are made by the legislature. This process is called legislation which is one of the important sources of law today.