SOURCES OF LAW

Prepared by :
Lomash Neupane
National Law College
Sanepa height , Lalitpur
 INTRODUCTION
• Lawis a set of rules recognized and applied by the state in the
administration of justice.
• Sources of law means the origin from which the law gets its
validity .
• From where the law comes into existence is the source of law.
• Severalfactors of law have contributed to the development of law.
These factors are regarded as the sources of law.
• Sources of law are written as well as unwritten.
 SCHOOLS ON SOURCES OF LAW
• The Natural law thinkers say that law originates from god. As per
them divine power is the sources of law. Modern natural law
focuses on morality , justice , equity, liberty , rule of law , etc. as
the sources of law.
• Analytical
School believes legislation as the main source of law.
Austin says that law originates from the sovereignty.
• Historical School believes customs , traditions, practices , usages
are the sources of law. Savigny traces the law originates in
volkgeist (common consciousness of people i. e spirit of people).
• Sociological school is based on social norms, values and society.
Therefore , social values and social norms are considered as
sources of law.
• Socialist law is based on economic factors . So, economy is the
source of law.
• The realist school believes the court as the source of law.
• Sources of law can be divided into :- 1. Primary/Binding Sources
2.Secondary / Persuasive Sources
1. Primary Sources
(a) Legislation
(b) Custom
(c) Precedent
(d) Treaty, Convention
2. Secondary Sources
(a) Juristic Writing
(b) Opinion of experts

(c) Decision of foreign courts

(d) Law of other countries , etc.

 CUSTOM
Meaning of custom:
•It can be defined as voluntary habitual obedience of the people since ages.

•“Custom is simply the practices and usages of distinctive communities.”

David J. Bederman, Custom as a Source of Law
•Salmond: Custom is acknowledged and approved, not by the power of state,
but by the public opinion of the society at large .
•Custom may be defined as established usage or practice as a reasonable
ground for conducting human behavior and social institutions.
•Austin: Customary practice is to be regarded as a rule of positive morality
unless and until the legislature or a judge has given it the force of law.
Concept of custom:
• It is considered as the oldest sources of law in most nations.
• Since it is related to practice of people, it is unwritten. However, could be codified
or written in law.
• Continuance of same thing is similar manner becomes custom.
• Since primitive times, custom has been the importance source of laws in so many
countries.
• In Common law countries, custom plays an important role.
• It focuses on practice of people living in certain society.
• In legal uncertainties or lack of law, custom could play a vital role.
Elements of a valid custom:
• Custom must be ancient i.e. must have been practicing since ages. Also called as
antiquity. It should be such old that no one remembers it’s beginning.
• Custom must be continuous. People should be exercising it continuously. Caste
based marriage could have been custom for centuries, but not anymore because
anti-caste marriage have started prevailing.
• Custom must be not be immoral. Every custom is valid only if it is moral. For e.g.
sati-system failed to be a custom because it was immoral practice.
• Custom must be reasonable. It must be backed by legal reasoning with authority
and there should be convincing reasons.
• Custom must not be contrary to justice, equity and public policy. It means that
custom should never interfere justice, fairness and public interest. For e.g.
Chhaupadi practice in Eastern parts of Nepal could not be accepted as custom
because it is not fair for women and creates injustice to women.
• Custom must not be contrary to statutory law. A customary practice against the
law passed by Parliament will never be a custom. There has to be a clear evidence
that custom is consistent to existing laws. Banning inter-caste marriage accepted
it as custom is against laws of Nepal.
• Custom must create rights. To be a valid custom, existing practice should create
rights of people or of individual. For e.g. right of a person belonging to a Magar
community to marry within his/her Kin.
 Types of Custom
There are two types of Custom:
•Legal Custom: Salmond says that legal custom has the force of law. He said
“Custom which is operative per se as a binding rule of law, independently of any
agreement on the part of those subject to it.” V. D. Mahajan: “The legal custom is
one whose legal authority is absolute.”
1.General Custom: It is a custom which is being practiced through out country or
society generally. It constitutes one of the sources of law.
2.Local Custom: It is a custom which is being practiced within a community, a group
of people or within a family. V. D. Mahajan : “Local custom is that which prevails in
some defined locality only such as borough or country and constitutes a source of
law for the place only.”
• Conventional custom: It is an agreement or an accepted practice/habit between
two or more parties. When two people do an agreement (for e.g. contract) they
look into the practices of other people. Example of conventional custom mostly
includes trade, contract or sale of goods. It is a usage of the trade or market.
Salmond defines Conventional custom as “A conventional custom is as established
practice which is legally binding, not because of any legal authority independently
possessed by it, but because it has been expressly or implicitly incorporated in a
contract between the parties concerned.”
Conventional custom may be divided into general or local conventional custom i.e.
general being applied across the nation or a society; whereas, local being applied
just by certain individuals or communities .
Legislation as a source of Law
Conceptual Background:
•Legislation is derived from the term ‘Legis’ meaning ‘a law’ and ‘Laterm’ meaning
‘to make’. Therefore any action of making a law is called as Legislation
•People elect their representatives i.e. legislature giving them power to enact laws
for the interest of its people.
•Legislation is considered as the most important sources of law in recent times. In
most of the countries, legislation is the major source of law
•Maximum laws are made through legislation than by any other sources of law

•Legislation means laws made by legislature

 LEGISLATION
• Legislation is the primary source of law. For e.g. Human Rights Commission Act,
Judicial Administration Act, Evidence Act etc. (all laws passed by Parliament of
Nepal) are legislation and are source of law in Nepal
• Usually, in most countries, supreme law of the land for e.g. Constitution gives
authority to legislature for making laws. For e.g. Part 8 of the Constitution of
Nepal , 2072 has given law making power to legislature .
• Legislation should never be made against the Constitution. Legislation is
subordinate to the Constitution.
• Unlike custom, legislation are backed with punishment or compensation.
• Legislature could also amend existing laws. For e.g. it could amend Human Rights
Commission Act
Types of Legislation:
Supreme Legislation/Primary Legislation:
• Supreme legislations are the ones that are directly passed/made by the Legislature
exercising. Therefore, all Acts passed by Parliament is supreme legislation.
• Legislature has the sole power to make new laws, to amend or repeal existing laws. Human
Rights Commission Act, Foreign Employment Act, Tribhuwan University Act etc. are the
examples of laws passed under Supreme Legislation.
• Parliament or the legislature is the primary source of supreme legislation or primary
legislation.
• It cannot be replaced or controlled by any other agencies than Supreme Legislation.
• Supreme Legislation should never be against the Constitution
• Example of legislation includes Acts.
Subordinate Legislation/Secondary Legislation:
•Any legislation that is not made by Parliament is called as subordinate legislation or
secondary legislation.
•The source of legislation is not Parliament, but some other agencies and these agencies
will make laws. However, the validity of the subordinate legislation will always depend
upon supreme legislation or primary legislation.
•Human Rights Commission Rules, Foreign Employment Rules and Tribhuwan University
Rules could be some examples of subordinate legislation. These rules are made under
Executive i.e. under Government and these will always depend on their supreme legislation
i.e. Human Rights Commission Act in case of Human Rights Commission Rules.
Subordinate Legislation
• It can also be called as delegated legislation because the Parliament through
supreme legislation will delegate its power of law making to other agencies.
Mostly it gives power to administrative agencies. For e.g. through Foreign
Employment Act, Parliament will delegate its law making power to government
and government will make laws i.e. Foreign Employment Rules, which will be
called as subordinate legislation.
• Subordinate legislation should be consistent to Supreme legislation and
Constitution.
• Example of Subordinate legislation includes rules, by-laws, regulation, directives
etc.
Subordinate Legislation by Salmond
1. Colonial Legislation: As England had many colonies, these colonies were given
certain law making power by Imperial legislation. Laws made by them were
called as Colonial legislation.
2. Executive Legislation: Parliament could delegate its power for Executive to
make certain laws for the administration of the State. For e.g. power of CDO to
declare emergency in Nepal during strike, flooding etc.
3. Municipal Legislation: Sometimes Parliament could empower Municipal
agencies to make laws for matters relating to Municipality. For e.g. it could be
laws made by Metropolitan office of Kathmandu.
• Judicial Legislation: Sometimes Courts are also given the power to make laws to
regulate their affairs. For e.g. Judicial Administration Act of Nepal allows Supreme
Court of Nepal to issue directives to District Courts
• Autonomous Legislation: There are certain autonomous bodies which are given
power by the Parliament to make laws. It could be commission, universities etc.
Laws made by these agencies are called as autonomous legislation. For e.g. laws
made by Human Rights Commission, laws made by Tribhuwan University.
THANK YOU

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