LC 0802 Module 02 Jurisprudence - Sources of Law - Notes 2

Jurisprudence - Sources of Law - Notes

Introduction 

    The study of jurisprudence involves a comprehensive examination of the sources of law, which are the origins from which legal rules and principles are derived. In this article, we will explore the concept of sources of law, their significance, and the different types of sources that contribute to the formation of a legal system.

2.1 Definition and Significance of Sources of Law: 

Sources of law refer to the origins, authorities, or channels through which legal rules are created, recognized, and enforced within a legal system. They play a fundamental role in shaping the legal framework of a society, providing legitimacy, predictability, and stability to the law. Understanding the sources of law is crucial for legal professionals as it helps in ascertaining the validity and applicability of legal rules.

2.2 Types of Sources of Law: 

2.2.1 Primary Sources: 

    Primary sources of law are the highest forms of legal authority within a legal system. They include constitutional law, legislation, and judicial precedents. Let's briefly discuss each of these primary sources:

2.2.1.1 Constitutional Law: 

    Constitutional law refers to the fundamental legal principles and rules outlined in a country's constitution. It sets out the structure and powers of the government, establishes fundamental rights and freedoms, and provides a framework for other branches of law.

2.2.1.2 Legislation: 

    Legislation, also known as statutory law, is enacted by the legislative bodies of a country, such as the parliament or congress. Statutes, acts, codes, and ordinances are examples of legislation. These laws address various areas of societal concern and are binding upon individuals and institutions within the jurisdiction.

2.2.1.3 Judicial Precedents: 

    Judicial precedents, also known as case law or common law, are legal principles and interpretations established by courts through their decisions. Precedents serve as authoritative sources of law, guiding future court decisions in similar cases. They contribute to the development and interpretation of legal principles beyond what is explicitly stated in legislation.

2.2.2 Secondary Sources: 

    Secondary sources of law provide interpretive and explanatory materials that aid in understanding and applying the law. While they are not legally binding, they hold significant value in legal research, education, and practice. Some common secondary sources include legal commentaries, textbooks, scholarly articles, legal dictionaries, and legal encyclopedias.

2.3 Hierarchical Relationship of Sources: 

    In most legal systems, there is a hierarchical relationship among the various sources of law. Constitutional law holds the highest authority, followed by legislation and judicial precedents. Lower-level sources, such as administrative regulations and municipal bylaws, must conform to the principles laid down in the higher sources.

2.4 Comparative Study of Sources: 

    Different legal systems may have variations in their sources of law. Civil law systems, influenced by Roman law, primarily rely on legislation as the primary source. Common law systems, on the other hand, place significant emphasis on judicial precedents. Understanding these differences is essential for comparative legal studies and analyzing the strengths and weaknesses of different legal systems.

    In conclusion, this article has provided an overview of the concept of sources of law, their significance, and the types of sources that contribute to the formation of a legal system. By recognizing the primary and secondary sources, understanding their hierarchical relationship, and acknowledging the variations among legal systems, students of jurisprudence can develop a deeper appreciation for the origins and authority of legal rules. In the following articles, we will delve further into each primary source and explore their implications in legal practice.