Sources of Law : Direct and Indirect

Law Hub Nepal श्रावण २१, २०७७

Sources of Law :

The meaning of the word source is origin. Sources of law means origin of law from which rules of human conduct come into existence. Those things which directly and indirectly play roles in the formation and development of laws are called sources of law. There are various sources of law but there are two major sources of law. They are ;

A. Direct sources of law
1. Constitution
2. Legislation
3. Precedent
4. Custom

B. Indirect sources of law
5. Convention
6. Professional opinion
7. Juristic writing
8. Reasons
9. Religion
10. Equity, Justice and Good consciences

A. Direct sources of law :

Direct sources of law is also called primary source o law. It is binding in nature. People must follow these rules otherwise violations of these laws is subjected to punishment.

1. Constitution :

Constitution is the primary source of law. I t is the mother of all laws of the country because other laws derived their validity and legitimacy from the constitution. Constitution is the fundamental law of the land and any law which is inconsistent with the provision of the constitution upto the existence shall be void. It’s means no law can survive against constitution. Every law must be under the provision of constitution.

2. Legislation :

The term legislation is derived from Latin term “legis” which means law and ”latum” which means to make, put or set. So Legislation means making or setting of law. Legislation is a written law passed by legislature and implemented by court. Legislation is the most and powerful source of law which has the power of making law, amending old law and cancelling outdated law etc. E.g. Drugs Act 2035, Guthi Corporation Act 2033 etc.

According to Salmond – “Legislation is that source of law which consists in declaration of rules by a competent authority. ”

3. Precedent :

Precedent is a body of principles developed by supreme court in the process of hearing and deciding a case. It is also called judge made law. If there is no law or there is law but not clear meaning then it creates confusion and problems in deciding case so in this situation supreme court can make an precedent to settle such legal or constitutional disputes. It is binding and must be followed by lower courts. E.g. Meera Dhungana v. PM, Annupurna v. Gorakh Samsher etc.

According to Gray – “A precedent covers everything said or done which furnishes a rule for subsequent practice. ”

4. Custom :

Custom is the primary source of law and it is the oldest form of making law. Law based on custom is known as customary laws. In primitive society, the lives of human beings are regulated by custom. It is unwritten law created by human beings. Customary laws also play important role and fills gaps while there is lacking of law. Nepalese law has accepted some custom which have legal authority.

E.g. marriage in keen relation is prohibited in Nepal but Muluki ain provides that no one shall be punished for a marriage or sexual intercourse in keen relation and such marriage shall be considered valid in accordance with their tradition followed by their caste.

According to Holland- ” custom is a generally observed habitual course of conduct. ”

B. Indirect sources of law :

It is also called secondary sources of law. It is not binding in nature. People are free to follow or not.

5. Convention :

Convention is an agreement between two or more than two countries. Convention is an agreement by which two or more countries try to establish relationship between them governed by international law. Nepal has accepted various convention like CRC, CEDAW etc and so on.

6. Professional opinions :

Those people who has depth knowledge and experience in their own profession and field can develop an idea to related authority. Legal professionals can give their valuable knowledge to solve the problems seen in the judicial administration. E.g. opinion given by laywer, judges, doctor and engineer etc.

7. Juristic writing :

Those person who has depth knowledge and experience in law can write or develop legal concepts and any writing. The genuine writings of the law experts, scholars, jurist, lawyer, judges and law teacher are examples of juristic writing. It has no binding forces. Juristic writing are as follows;
International law – Hugo Grotious
Country Justice – Dalton
The Concept of Law – H.L.A Hart etc

8. Reasons :

Reasons is also secondary sources of law. Reasons play important role in law making. E.g. It is legally prohibited that not to get married in close blood relation due to scientific reason.

9. Religion :

Religion is also taken as important sources of law. Because when there was no man made law then state or king used religious laws to regulate human behaviour. E.g. Hindu holy book Geeta is the part of Hindu law in Nepal. Bible was part Christianity law in England.

10. Equity, Justice and Good consciences :

Equity, Justice and Good consciences are closely related with social and natural justice. Basically, Equity, Justice and Good consciences dependent upon the discretionary power of judges which they could use in the decision of the court.

(To be admitted in BALLB, one has to pass a tough entrance exam after +2. Law Hub Nepal will continuously publish various materials to help those who want to participate in the entrance exam.

In this context, Anish Tiwari, a Law student, has prepared above material for the frequently asked question in the subjective examination like – (What do you mean by sources of law ? Describe about the various sources of law.) Tiwari has prepared it on the basis of  various study materials. – Editor)

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