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1.6 Sources of Law

Learning objectives.

• Identify the three sources of law.
• Rank the three sources of law, from highest to lowest.
• Ascertain the purpose of the US and state constitutions.
• Ascertain one purpose of statutory law.
• Ascertain the purpose of case law.
• Define judicial review.
• Diagram and explain the components of a case brief.

Law comes from three places, which are referred to as the sources of law .

Constitutional Law

The first source of law is constitutional law . Two constitutions are applicable in every state: the federal or US Constitution, which is in force throughout the United States of America, and the state’s constitution. The US Constitution created our legal system, as is discussed in Chapter 2 “The Legal System in the United States” . States’ constitutions typically focus on issues of local concern.

The purpose of federal and state constitutions is to regulate government action . Private individuals are protected by the Constitution, but they do not have to follow it themselves.

Example of Government and Private Action

Cora stands on a public sidewalk and criticizes President Obama’s health-care plan. Although other individuals may be annoyed by Cora’s words, the government cannot arrest or criminally prosecute Cora for her speech because the First Amendment of the US Constitution guarantees each individual the right to speak freely. On the other hand, if Cora walks into a Macy’s department store and criticizes the owner of Macy’s, Macy’s could eject Cora immediately. Macy’s and its personnel are private , not government, and they do not have to abide by the Constitution.

Exceptions to the Constitution

The federal and state constitutions are both written with words that can be subject to more than one interpretation. Thus there are many exceptions to any constitution’s protections. Constitutional protections and exceptions are discussed in detail in Chapter 3 “Constitutional Protections” .

For safety and security reasons, we see more exceptions to constitutional protections in public schools and prisons . For example, public schools and prisons can mandate a certain style of dress for the purpose of ensuring safety. Technically, forcing an individual to dress a specific way could violate the right to self-expression, which the First Amendment guarantees. However, if wearing a uniform can lower gang-related conflicts in school and prevent prisoners from successfully escaping, the government can constitutionally suppress free speech in these locations.

Superiority of the Constitution

Of the three sources of law, constitutional law is considered the highest and should not be supplanted by either of the other two sources of law. Pursuant to principles of federal supremacy, the federal or US Constitution is the most preeminent source of law, and state constitutions cannot supersede it. Federal constitutional protections and federal supremacy are discussed in Chapter 2 “The Legal System in the United States” and Chapter 3 “Constitutional Protections” .

Statutory Law

The second source of law is statutory law . While the Constitution applies to government action, statutes apply to and regulate individual or private action. A statute is a written (and published) law that can be enacted in one of two ways. Most statutes are written and voted into law by the legislative branch of government. This is simply a group of individuals elected for this purpose. The US legislative branch is called Congress , and Congress votes federal statutes into law. Every state has a legislative branch as well, called a state legislature , and a state legislature votes state statutes into law. Often, states codify their criminal statutes into a penal code .

State citizens can also vote state statutes into law. Although a state legislature adopts most state statutes, citizens voting on a ballot can enact some very important statutes. For example, a majority of California’s citizens voted to enact California’s medicinal marijuana law (California Compassionate Use Act of 1996, 2010). California’s three-strikes law was voted into law by both the state legislature and California’s citizens and actually appears in the California Penal Code in two separate places (Brown, B., and Jolivette, G., 2010).

Statutory Law’s Inferiority

Statutory law is inferior to constitutional law , which means that a statute cannot conflict with or attempt to supersede constitutional rights. If a conflict exists between constitutional and statutory law, the courts must resolve the conflict. Courts can invalidate unconstitutional statutes pursuant to their power of judicial review , which is discussed in an upcoming section.

Administrative Laws and Ordinances

Other written and published laws that apply to individuals are administrative laws and ordinances . Administrative laws and ordinances should not supersede or conflict with statutory law.

Administrative laws are enacted by administrative agencies , which are governmental agencies designed to regulate in specific areas. Administrative agencies can be federal or state and contain not only a legislative branch but also an executive (enforcement) branch and judicial (court) branch. The Food and Drug Administration (FDA) is an example of a federal administrative agency. The FDA regulates any food products or drugs produced and marketed in the United States.

Ordinances are similar to statutes, except that cities and counties vote them into law, rather than a state’s legislature or a state’s citizens. Ordinances usually relate to health, safety, or welfare, and violations of them are typically classified as infractions or misdemeanors , rather than felonies . A written law prohibiting jaywalking within a city’s or county’s limits is an example of an ordinance.

Model Penal Code

State criminal laws differ significantly, so in the early 1960s a group of legal scholars, lawyers, and judges who were members of the American Law Institute drafted a set of suggested criminal statutes called the Model Penal Code . The intent of the Model Penal Code was to provide a standardized set of criminal statutes that all states could adopt, thus simplifying the diversity effect of the United States’ legal system. While the Model Penal Code has not been universally adopted, a majority of the states have incorporated portions of it into their penal codes, and the Model Penal Code survives as a guideline and focal point for discussion when state legislatures modify their criminal statutes.

The third source of law is case law . When judges rule on the facts of a particular case, they create case law. Federal case law comes from federal courts, and state case law comes from state courts. Case law has its origins in English common law.

English Common Law

In Old England, before the settlement of the United States, case law was the most prevalent source of law. This was in contrast to countries that followed the Roman Law system, which primarily relied on written codes of conduct enacted by legislature. Case law in England was mired in tradition and local customs. Societal principles of law and equity were the guidelines when courts issued their rulings. In an effort to be consistent, English judges made it a policy to follow previous judicial decisions, thereby creating a uniform system of laws throughout the country for the first time. Case law was named common law because it was common to the entire nation (Duhaime, L., 2010).

The English system of jurisprudence made its way to the United States with the original colonists. Initially, the thirteen colonies unanimously adopted common law as the law of the land. All crimes were common-law crimes, and cases determined criminal elements, defenses, and punishment schemes. Gradually, after the Revolutionary War, hostility toward England and modern reform led to the erosion of common-law crimes and a movement toward codification. States began replacing common-law crimes with statutes enacted by state legislatures. Oxford professor Sir William Blackstone’s Commentaries on the Law of England, which interpreted and summarized English common law, became an essential reference as the nation began the process of converting common-law principles into written statutes, ordinances, and penal codes (Duhaime, L., 2010).

Limitations on Common-Law Crimes

In modern society, in many states and the federal government (United States v. Hudson & Goodwin, 2010), judges cannot create crimes. This violates notions of fairness. Making up a new crime and punishing the defendant for it does not provide consistency or predictability to our legal system. It also violates the principle of legality, a core concept of American criminal justice embodied in this phrase: “Nullum crimen sine lege, nulla poena sine crimen” (No crime without law, no punishment without crime).

In states that do not allow common-law crimes, statutes must define criminal conduct. If no statute exists to criminalize the defendant’s behavior, the defendant cannot be criminally prosecuted , even if the behavior is abhorrent. As the Model Penal Code states, “[n]o conduct constitutes an offense unless it is a crime or violation under this Code or another statute of this State” (Model Penal Code § 1.05(1)).

The common law still plays an important role in criminal lawmaking, even though most crimes are now embodied in statutes. Classification of crimes as felonies and misdemeanors is a reflection of English common law. Legislatures often create statutes out of former common-law crimes. Judges look to the common law when defining statutory terms, establishing criminal procedure, and creating defenses to crimes. The United States is considered a common-law country. Every state except Louisiana, which is based on the French Civil Code, adopts the common law as the law of the state except where a statute provides otherwise (Legal Definition, 2010).

Example of a Court’s Refusal to Create a Common-Law Crime

Read Keeler v. Superior Court , 470 P.2d 617 (1970). In Keeler , the defendant attacked his pregnant ex-wife, and her baby was thereafter stillborn. The California Supreme Court disallowed a murder charge against Keeler under California Penal Code § 187 because the statute criminalized only the malicious killing of a “human being.” The court reached its decision after examining the common-law definition of human being and determining that the definition did not include a fetus. The court reasoned that it could not create a new crime without violating the due process clause, separation of powers, and California Penal Code § 6, which prohibits the creation of common-law crimes. After the Keeler decision, the California Legislature changed Penal Code § 187 to include a fetus, excepting abortion (Cal. Penal Code, 2010).

Powerful Nature of Case Law

Generally, if there is a statute on an issue, the statute is superior to case law, just as the Constitution is superior to statutory law. However, judges interpret constitutional and statutory law, making case law a powerful source of law. A judge can interpret a constitution in a way that adds or creates exceptions to its protections. A judge can also interpret a statute in a way that makes it unconstitutional and unenforceable. This is called the power of judicial review (Marbury v. Madison, 2010).

Example of Judicial Review

An example of judicial review is set forth in Texas v. Johnson , 491 U.S. 397 (1989). In Johnson , the US Supreme Court ruled that burning a flag is protected self-expression under the First Amendment to the US Constitution. Thus the Court reversed the defendant’s conviction under a Texas statute that criminalized the desecration of a venerated object. Note how Johnson not only invalidates a state statute as being inferior to the US Constitution but also changes the US Constitution by adding flag burning to the First Amendment’s protection of speech.

Figure 1.5 Diagram and Hierarchy of the Sources of Law

Stare Decisis and Precedent

Cases are diverse, and case law is not really law until the judge rules on the case, so there must be a way to ensure case law’s predictability . It would not be fair to punish someone for conduct that is not yet illegal. Thus judges adhere to a policy called stare decisis . Stare decisis is derived from English common law and compels judges to follow rulings in previous cases. A previous case is called precedent . Once judges have issued a ruling on a particular case, the public can be assured that the resulting precedent will continue to be followed by other judges. Stare decisis is not absolute; judges can deviate from it to update the law to conform to society’s modern expectations.

Rules of Stare Decisis and Use of Precedent

Case precedent is generally an appeal rather than a trial . There is often more than one level of appeal, so some appeals come from higher courts than others. This book discusses the court system, including the appellate courts, in Chapter 2 “The Legal System in the United States” .

Many complex rules govern the use of precedent . Lawyers primarily use precedent in their arguments, rather than statutes or the Constitution , because it is so specific. With proper research, lawyers can usually find precedent that matches or comes very close to matching the facts of any particular case. In the most general sense, judges tend to follow precedent that is newer , from a high court , and from the same court system , either federal or state.

Example of Stare Decisis and Use of Precedent

Geoffrey is a defense attorney for Conrad, who is on trial for first-degree murder. The murder prosecution is taking place in New Mexico. Geoffrey finds case precedent from a New York Court of Appeals, dated 1999, indicating that Conrad should have been prosecuted for voluntary manslaughter , not first-degree murder. Brandon, the prosecuting attorney, finds case precedent from the New Mexico Supreme Court , dated 2008 , indicating that a first-degree murder prosecution is appropriate. The trial court will probably follow the precedent submitted by Brandon because it is newer, from a higher court, and from the same court system as the trial.

Case Citation

Cases must be published to become case law. A published case is also called a judicial opinion . This book exposes you to many judicial opinions that you have the option of reading on the Internet. It is essential to understand the meaning of the case citation . The case citation is the series of numbers and letters after the title of the case and it denotes the case’s published location. For example, let’s analyze the case citation for Keeler v. Superior Court , 470 P.2d 617 (1970).

Figure 1.6 Keeler Case Citation

As you can see from the diagram, the number 470 is the volume number of the book that published the Keeler case. The name of that book is “P.2d” (this is an abbreviation for Pacific Reports, 2d Series ). The number 617 is the page number of the Keeler case. The date (1970) is the date the California Supreme Court ruled on the case.

Case Briefing

It is useful to condense judicial opinions into case brief format . The Keeler case brief is shown in Figure 1.7 “Keeler Case Brief” .

Figure 1.7 Keeler Case Brief

Read this case at the following link: http://scholar.google.com/scholar_case?case=2140632244672927312&hl=en&as_sdt=2&as_vis=1&oi=scholarr .

Published judicial opinions are written by judges and can be lengthy. They can also contain more than one case law, depending on the number of issues addressed. Case briefs reduce a judicial opinion to its essentials and can be instrumental in understanding the most important aspects of the case. Standard case brief formats can differ, but one format that attorneys and paralegals commonly use is explained in the following paragraph.

Review the Keeler case brief. The case brief should begin with the title of the case , including the citation . The next component of the case brief should be the procedural facts . The procedural facts should include two pieces of information: who is appealing and which court the case is in. As you can see from the Keeler case brief, Keeler brought an application for a writ of prohibition, and the court is the California Supreme Court. Following the procedural facts are the substantive facts , which should be a short description of the facts that instigated the court trial and appeal. The procedural and substantive facts are followed by the issue . The issue is the question the court is examining, which is usually the grounds for appeal. The case brief should phrase the issue as a question. Cases usually have more than one issue. The case brief can state all the issues or only the issue that is most important. The substantive holding comes after the issue, is actually the case law , and answers the issue question. If more than one issue is presented in the case brief, a substantive holding should address each issue.

Figure 1.8 Example of a Substantive Holding

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html .

A procedural holding should follow the substantive holding. The procedural holding discusses what the court did procedurally with the case. This could include reversing the lower court’s ruling, affirming the lower court’s ruling, or adjusting a sentence issued by the lower court. This book discusses court procedure in detail in Chapter 2 “The Legal System in the United States” . Last, but still vital to the case brief, is the rationale . The rationale discusses the reasoning of the judges when ruling on the case. Rationales can set policy , which is not technically case law but can still be used as precedent in certain instances.

One judge writes the judicial opinion. Judges vote how to rule, and not all cases are supported by a unanimous ruling. Occasionally, other judges will want to add to the judicial opinion. If a judge agrees with the judicial opinion, the judge could write a concurring opinion , which explains why the judge agrees. If a judge disagrees with the judicial opinion, the judge could write a dissenting opinion explaining why the judge disagrees. The dissenting opinion will not change the judicial opinion, but it may also be used as precedent in a future case if there are grounds for changing the law.

Key Takeaways

• The three sources of law are constitutional, statutory, and case law.
• The sources of law are ranked as follows: first, constitutional; second, statutory; and third, case law. Although it is technically ranked the lowest, judicial review makes case law an extremely powerful source of law.
• The purpose of the US and state constitutions is to regulate government action.
• One purpose of statutory law is to regulate individual or private action.
• The purpose of case law is to supplement the law when there is no statute on point and also to interpret statutes and the constitution(s).
• The court’s power to invalidate statutes as unconstitutional is called judicial review.

The components of a case brief are the following:

• The title, plus citation. The citation indicates where to find the case.
• The procedural facts of the case. The procedural facts discuss who is appealing and in which court the case is located.
• The substantive facts. The substantive facts discuss what happened to instigate the case.
• The issue. The issue is the question the court is examining.
• The substantive holding. The substantive holding answers the issue question and is the case law.
• The procedural holding. The procedural holding discusses what the court did procedurally with the case.
• The rationale. The rationale is the reason the court held the way it did.

Answer the following questions. Check your answers using the answer key at the end of the chapter.

• Hal invents a new drug that creates a state of euphoria when ingested. Can Hal be criminally prosecuted for ingesting his new drug?
• Read Shaw v. Murphy , 532 U.S. 223 (2001). Did the US Supreme Court allow prison inmates the First Amendment right to give other inmates legal advice? Why or why not? The case is available at this link: http://scholar.google.com/scholar_case?case=9536800826824133166&hl=en&as_sdt=2&as_vis=1&oi=scholarr .
• Read Justice Scalia’s dissenting opinion in Lawrence v. Texas , 539 U.S. 558 (2003). What is the primary reason Justice Scalia dissented to the US Supreme Court’s opinion in Lawrence ? The dissenting opinion is available at this link: http://www.law.cornell.edu/supct/html/02-102.ZD.html . The judicial opinion in Lawrence v. Texas is available at this link: http://www.law.cornell.edu/supct/html/02-102.ZS.html .

Brown, B., and Jolivette, G., “A Primer: Three Strikes—The Impact after More Than a Decade,” Legislative Analyst’s Office website, accessed February 15, 2010, http://www.lao.ca.gov/2005/3_strikes/3_strikes_102005.htm .

Cal. Penal Code § 187, accessed August 23, 2010, http://codes.lp.findlaw.com/cacode/PEN/3/1/8/1/s187 .

California Compassionate Use Act of 1996, Cal. Health and Safety Code § 11362.5, accessed February 15, 2010, http://www.cdph.ca.gov/programs/mmp/Pages/Medical%20Marijuana%20Program.aspx .

Duhaime, L., “Common Law Definition,” Duhaime.org website, accessed September 26, 2010, http://www.duhaime.org/LegalDictionary/C/CommonLaw.aspx .

Legal Definition, “Common Law,” Lectlaw.com website, accessed September 26, 2010, http://www.lectlaw.com/def/c070.htm .

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), accessed February 15, 2010, http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html .

United States v. Hudson & Goodwin, 11 U.S. 32 (1812), accessed September 24, 2010, http://openjurist.org/11/us/32/the-united-states-v-hudson-and-goodwin .

Criminal Law Copyright © 2015 by University of Minnesota is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License , except where otherwise noted.

1.2 Sources and Types of Law

The American legal system is made up of many types of codified forms of law, with the United States Constitution being the pre-eminent source of American law. The Constitution establishes the boundaries of federal law, and it must be followed by all citizens, organizations, and entities. It includes Congressional acts, Senate-ratified treaties, executive regulations, and federal case law. The United States Code (“USC”) compiles these laws.

American law mainly originates from constitutional law, statutory law, treaties, administrative regulations, and common law (which includes case law).

The Constitution

The United States Constitution is the foremost law of the land. The Constitution’s first ten amendments are referred to as the Bill of Rights, which offers specific protections of individual liberty and justice. Additionally, the Bill of Rights restricts certain powers of government. The Constitution empowers federal law making by giving Congress the power to enact statutes for certain limited purposes, like regulating interstate commerce. The United States Code officially compiles and codifies the federal statutes.

American Common Law

As discussed in the previous section, the United States follows the common law legal tradition of English law. Judges in the Common Law system help shape the law through their rulings and interpretations. This body of past decisions is known as  case law , which is used by judges to inform their own rulings. In fact, judges rely on precedent , i.e., previous court rulings on similar cases, when determining the ruling in their own cases.

An example of how case law works is the case of the State v. Wayfair Inc. (2017 SD 56, 901 N.W.2d 754 (S.D. 2017), cert. granted, 138 S. Ct. 735 (2018)), in which the South Dakota Supreme Court held that a state law requiring internet retailers without an in-state physical presence to remit sales tax was unconstitutional. Unless this ruling is overruled by the United States Supreme Court, then it becomes part of the case law and precedent set in that state, and it will be followed by subsequent rulings when similar cases are filed.

Federal Law

The Constitution empowers federal law making by giving Congress the power to enact statutes for certain limited purposes, like regulating interstate commerce. Federal law preempts conflicting state and local laws. However, federal preemption is not without limits, insofar as states each have their own constitution and are considered sovereign. Therefore, federal law may only preempt state law if it is enacted within the limited powers that are enumerated and granted to Congress in the Constitution.

Broad interpretations of the Constitution’s Commerce and Spending Clauses have expanded the reach of federal law into many areas. Indeed, its reach in some areas, such as aviation and railroads, is now so broad that it preempts virtually all state law. In other areas, such as family law, lawmaking continues to be left to the states. Finally, a number of powerful federal and state laws coexist in areas such as antitrust, trademark, employment law, and others.

When a bill becomes a federal law, it is assigned a law number and prepared for publication by the Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA). Public laws are also given legal statutory citation by the OFR and are incorporated into the United States Code (USC).

Regulations

Laws differ from regulations in that laws are passed by either the U.S. Congress or state congresses. Regulations, by contrast, are standards and rules adopted by administrative agencies that govern how laws will be enforced.

Federal agencies often enjoy broad rulemaking authority when Congress acts to grant them this power. Called “regulations,” these agency rules normally carry the force of law, as long as they demonstrate a reasonable interpretation of the relevant statutes. For example, the Environmental Protection Agency (EPA) has established regulations for businesses and their emission and disposal of pollutants to protect the environment. The EPA has the authority to enforce these regulations when a business violates them, and such enforcement is usually done by fining the company or by using other means.

The Administrative Procedure Act (APA) enables the adoption of regulations, which are codified and incorporated into the Code of Federal Regulations (CFR). Federal agencies frequently draft and distribute forms, manuals, policy statements, letters, and rulings. Though these may be considered as persuasive authority by the courts, they do not carry the same force as law. In other words, if a person or business questions a regulation of a government agency, saying it is unconstitutional, and that party is successful in proving it, then the regulation is not enforced and the agency will need to revise it or remove it.

America, as diverse as its fifty states, is also governed by fifty different state constitutions, state governments, and state courts. Each has its own legislative, executive, and judicial branches. States are empowered to create legislation that is related to matters not preempted by the federal Constitution and federal laws. Most cases involve state law issues and are litigated in state courts.

In addition to federal and state law, municipalities, towns or cities, and counties may enact their own laws that do not conflict with state or federal laws.

As demonstrated, American law does not draw from one source alone; instead, it is derived from many sources.

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• Why is Legal Research important?
• What is a source of law?
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There are lots of reasons why Legal Research is important. First, Legal Research helps you focus on the facts of the case, not to mention you can identify the point of law in the disputed issue. The research will also help prepare arguments that you can use in court and you will also need to lay down the evidence in that case, which is also backed up by research.

On top of that, Legal Research supplements the area of practice, since it backs up everything with credible sources, evidence, and even historical data. You get to have complete knowledge about the issue, and all of that information can be harnessed in a professional manner. Regardless of the complexity of the case, Legal Research will help you give complete answers, examine any statutes, and even ensure that all legal matters are handled accordingly.

It’s very important to focus on Legal Research if you want to solve any type of legal problem. While the process can be long and tedious at times, the truth is that proper research can help turn the odds in your favor in many cases. 

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A source of law contains the rules and principles that form the law of a specific country. In our Law Library collection, you will find two broad categories of legal material namely primary and secondary materials/sources of law.

Illustration of The Classifications of South African Law

Meintjies-Van der Walt compares the law to a tree. Below is a simplified version of this tree:

 L Meintjies-Van der Walt et al Introduction to South African Law 3 rd ed (2019).

Primary materials are the original sources of law that  contain binding rules and principles. This means that if they are applicable a court must give effect to them unless they are overridden by a rule or principle found in a source with greater authority.

This hierarchy of authority is as follows:

The Constitution

• Customary Law

Legislation

Case Law/Law Reports

A constitution is a piece of legislation that is the highest authority in the country. It sets out the rules on how a country should be governed and includes the civil rights of its citizens. All citizens, including the president, the legislature, and the courts, are subject to this supreme Constitution and cannot act contrary thereto. All laws and conduct are subordinate to the Constitution and will be unconstitutional and invalid if they are in conflict with the Constitution. 

Common law  is a body of unwritten  laws  based on legal precedents established by the courts.  Common law  influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of  law . An  example  of  common law  is a rule that a judge made that says that people have a duty to read contracts.

Customary law

Customary law refers to social norms and practices that a certain community considers law. There are numerous different customary law systems in South Africa. The laws are not written down; they differ from place to place. It covers all matters regulating personal and family life including matters relating to children (such as care, contact, maintenance, guardianship, and initiation); marriage and the consequences of marriage (rights and responsibilities of spouses during and after the marriage); succession (who has a right to inherit and the administration of estates); land tenure and traditional leaders (who regulate family matters and disputes).

Legislation is rules/law that is written down in a specific format. Firstly, a draft of a proposed law is prepared; this is called a “bill”. This bill then needs to be voted in by the legislative authority (passed) and signed by the president for it to become legislation. A piece of legislation is also called an act or a statute.

What does it mean when legislation is enacted? An act usually states when it will come into force. On that day, we say the act is enacted. This means that from that day the rules are written and that act becomes law.

Subordinate or Delegated Legislation –  Are regulations made by government ministers for e.g. TV or Vehicle Licence. The provinces pass “provincial acts” and the municipality pass “local by-laws”.

Law reports are a series of books that contain judicial opinions from a selection of case law decided by courts. Court cases are heard in courts by the judicial authority. One party institutes legal proceedings. The presiding officer (called the judge or the magistrate depending on which court you are in) will decide on the law and then resolve the factual dispute. This decision is known as a judgment.

Secondary sources of law , on the other hand, are not binding authority. They do however have persuasive value. They can therefore be used to inform a magistrate or judge’s decision. Secondary sources interpret the law.

The secondary sources of law in South Africa are:

Encyclopaedias

Dictionaries

Loose-leaf Publications

Journal Articles

Textbooks 

Books are a very good source for starting your research on any topic as it will give you a broad overview of the subject.

The best book to start your research is the legal encyclopedia known as  LAWSA . Is kept up to date with monthly publications called  CURRENT LAW . Current law is the most recent development of SA Law. Is very useful when you do research on South African law. Each subject entry is written by experts in their field and is arranged alphabetically by subject and each chapter covers a different topic.

Why is a dictionary so important?

A  dictionary  is one of the most  important  tools during your time studying at a university. A good  dictionary  can help you understand your subject better, improve your communication, and improve your grades by making sure you are using words correctly.

Because if you do not understand the word or phrase you must look it up.

The  TRILINGUAL LEGAL DICTIONARY  provides legal words and phrases and gives meanings in English, Afrikaans, and Latin.

What is a loose leaf?

A loose-leaf service is a form of publication that is periodically updated with materials that are filed in a binder to ensure that the contents are as current as possible. The updates are usually provided on a weekly, bi-weekly, or monthly basis. Loose-leaf services bring together into a single secondary source most of the important information from a variety of primary sources on a particular topic or field of law.

Journal articles are shorter than books and written about very specific topics. A journal is a collection of articles (like a magazine) that is published regularly throughout the year. Journals present the most recent research, and journal articles are written by experts, for experts. They may be published in print or online formats, or both. 

A Citation of a Case

A citation of a case consists of five components:

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Finding Sources

Cases (rule 10), statutes (rule 12), legislative materials or administrative & executive materials (rules 13 & 14), books (rule 15), periodical materials (rule 16), the internet (rule 18), foreign jurisdictions (table 2), other online sources of pdf images.

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For a source-gathering assignments, you are responsible for finding copies of all sources cited in the footnotes of an article to check the support for the assertions made by the author. You will need to retrieve an official copy of every source cited in your assigned footnote range for the S&C assignment.

Authoritative, official versions of many sources can be found through electronic databases. Downloading the PDF copies of these sources is often much more efficient than obtaining the print copies of the sources.

This section provides tips for how to find the most frequently cited type of sources, but does not cover every type of source you may encounter in the article. If you come to a dead end when trying to locate a source, please email the Reference Office at [email protected] for assistance!

Always refer to Table 1 (T1) in The Bluebook to determine the preferred reporter for cases. The preferred reporter should be cited whenever a case is published in it. For more information about reporters, please refer to the research guide about Court Reporters .

The Gallagher Law Library has an extensive print collection of reporters, but fortunately you will usually be able to find scanned, electronic copies of cases from these reporters through either HeinOnline or Westlaw.

This section outlines where you can find official PDF copies of cases that are identical to what you would find in the print bound volume. These PDF copies of the cases should be used to verify the support in the citations. Electronic copies of the cases available through Google Scholar, Ravel Law, Lexis, or other websites where the case is presented in full-text format with star pagination are not the official PDF copies of the cases.

United States Supreme Court Cases:

The preferred reporter for United States Supreme Court cases is the United States Reports (U.S.) . However, the bound volumes of the United States Reports are not published as quickly as the bound volumes of the Supreme Court Reporter (S. Ct.), which means that cases from the past few years are often available in the Supreme Court Reporter , but not yet available in the United States Reports . Generally, only in those circumstances is it appropriate to cite to the Supreme Court Reporter . Always check to see if the case has been published in the United States Reports first when you encounter a citation to a U.S. Supreme Court case.

United States Repo rts : Copies of cases from the United States Reports can be found on HeinOnline . Click on either the PDF icon or download icon to download and save a PDF copy of the case.

Supreme Court Reporter : Copies of cases from the Supreme Court Reporter can be found on Westlaw . For cases from the Supreme Court Reporter , make sure to click the "Original Image" icon to obtain a PDF copy of the case that is identical to how it looks in the bound volume of the reporter instead of downloading an electronic copy of the case with star pagination. In the example below, you can see that this case has not yet been published in the United States Reports because there is no citation to the official reporter (U.S.) provided for it. Thus, for this case, it is appropriate to cite to the Supreme Court Reporter .

This is what the top of the first page of the PDF copy of a case from the Supreme Court Reporter looks like:

• U.S. Supreme Court Cases [Westlaw] Covers 1790 to present in West's Supreme Court Reporter and other publications

U.S. Courts of Appeal:

Bluebook T1 indicates that the preferred reporter for U.S. Courts of Appeal cases is the Federal Reporter (F., F.2d, or F.3d). Cases that are not published in the Federal Reporter may be published in the Federal Appendix .

The Federal Reporter and Federal Appendix are published by West Publishing. Copies of the cases as they appear in the bound volumes are available to download in PDF on Westlaw . Make sure to click the "Original Image" icon to obtain a PDF copy of the case that is identical to how it looks in the bound volume of the reporter rather than downloading an electronic copy of the case with star pagination. The Caselaw Access Project also had PDF images of the  Federal Reporter  and  Federal Appendix :

• Caselaw Access Project - U.S. Federal Case Reporters Includes the Federal Reporter (1802-2019) and the Federal Appendix (1996-2018)

Federal District Courts:

Bluebook T1 indicates that the preferred reporter for federal district court cases published after 1932 is the Federal Supplement (F. Supp., F. Supp. 2d, F. Supp. 3d). For cases published prior to 1932, cite to the Federal Reporter or Federal Cases .

The Federal Supplement series is published by West Publishing. Copies of the cases as they appear in the bound volumes are available to download in PDF on Westlaw . Make sure to click the "Original Image" icon to obtain a PDF copy of the case that is identical to how it looks in the bound volume of the reporter rather than downloading an electronic copy of the case with star pagination. Also available via the Caselaw Access Project:

• Caselaw Access Project - U.S. Federal Case Reporters Includes the Federal Supplement (1839-2019)

Washington State Court Cases:

Bluebook T1 indicates that the preferred reporter for Washington Supreme Court cases and Washington Court of Appeals cases is the Pacific Reporter (P., P.2d, P.3d for Supreme Court and P.2d or P.3d for Court of Appeals). If the case is not published in the Pacific Reporter , you should next refer to the Washington Reports followed by the Washington Territory Reports for Washington Supreme Court cases and to the Washington Appellate Reports for Washington Court of Appeals cases.

The Pacific Reporter is published by West Publishing. Copies of the cases as they appear in the bound volumes are available to download in PDF on Westlaw . Make sure to click the "Original Image" icon to obtain a PDF copy of the case that is identical to how it looks in the bound volume of the reporter rather than downloading an electronic copy of the case with star pagination.

PDF copies of the Washington reporters dating back to 1854 are available on from the Caselaw Access Project:

• Caselaw Access Project - Washington State Includes Washington Reports (Wash.) (1889-1981), Washington Reports (Wash. 2d.) (1939-2017), Washington Appellate Reports (Wash. App.) (1969-2017) and Washington Territory Reports (Wash. Terr.) (1854-1888).

Other State Court Cases:

To determine the preferred reporter for court cases from another state, you should refer to Bluebook T1 and check under the particular state's name. If the case is published in the preferred reporter, make sure the article cites to that reporter for the case. The official versions of most (but not all) of these cases are available to download in PDF on Westlaw . Make sure to click the "Original Image" icon to obtain a PDF copy of the case that is identical to how it looks in the bound volume of the reporter rather than downloading an electronic copy of the case with star pagination.

PDF copies of many recent and historical reporters from all fifty states are available through the Caselaw Access Project:

• Caselaw Access Project Includes reporters covering all fifty states plus federal courts as well as the Northern Mariana Islands, Puerto Rico, some tribal jurisdictions, the Virgin Islands, Guam, and more. Coverage for each jurisdiction varies. Includes PDF scans.

Federal Statutes:

You don't need a date for the U.S. Code, per Bluebook Rule 12. The official, authenticated version of the U.S. Code is available electronically in PDF here:

• U.S. Code [GovInfo] The official version of the U.S. Code.

Citations to the U.S.C.A. or U.S.C.S. are referring to the United States Code Annotated (West) or the United States Code Service (Lexis), which are commercial publications. Bluebook Rule 12.1 provides examples of how to cite to the current official code (U.S.C.) as well as how to cite to a current unofficial code.

• U.S. (Federal) Laws [Gallagher Law Library]

State Statutes:

Bluebook T1 indicates the preferred statutory compilations for each state. In Washington, for instance, you should cite to the Revised Code of Washington as the official code. West's Revised Code of Washington Annotated and the Annotated Revised Code of Washington (LexisNexis) are unofficial annotated codes.

For recent government documents, visit govinfo , where you can find official, authenticated electronic copies of congressional reports, hearings, and debates, as well as the Code of Federal Regulations (CFR) and Federal Register .

For historical (pre-1990s) government documents, visit HeinOnline for agency materials ( Code of Federal Regulations , Federal Register , and agency decisions) and congressional debates and visit ProQuest Congressional Publications for congressional reports and hearings.

UW Library Catalog:

The University of Washington is a member of the Orbis Cascade Alliance, a consortium of various libraries in Washington, Oregon, and Idaho. Our library catalog shows items available at the Gallagher Law Library, at UW Libraries, and at UW Libraries + Summit.

If an item is not available within the UW library system, you can request it from another Summit library through our catalog and generally will receive it within 3-5 days.

If you click on the "see Summit availability" link in the catalog record, you can see the availability of the item at other institutions within the consortium:

If a book is not available either within the UW library system or at any Summit libraries, you will need to request it via interlibrary loan. Please see the Interlibrary Loan (ILL) Requests section of this guide for guidance on how to submit an interlibrary loan request.

Bluebook Rule 15.4 states, "Always cite the latest edition of a work that supports the point under discussion, unless an earlier edition would be particularly relevant or authoritative." Authors frequently cite whatever edition their libraries have in their collections, which are frequently not the newest editions. To verify whether a newer edition of a book is available and should be cited instead, you should consult WorldCat :

Step 1 : Conduct a search for the book.

Step 2 : Click on "View all editions and formats."

Step 3 : Confirm whether the edition cited by the author is the latest edition of the work. In this example, if the author cited to the fifth edition (2009) in his or her article, WorldCat indicates that a sixth edition published in 2013 is available and should likely be cited instead.

Keeping Track of Books in the Catalog . A handy feature of our library catalog lets you save records to refer to later. It's an easy way to create a reading list or a list of material for a research project. This video shows you how. (2:39)

Law Journal Articles:

The HeinOnline Law Journal Library contains over 2,200 law and law-related periodicals dating back to the first issue for each title. The database allows you to download PDF scanned copies of the articles.

Other Periodicals:

The University of Washington subscribes to various databases that contain non-law periodicals, such as Academic Search Complete and JSTOR. Many of these databases allow you to download PDF scanned copies of articles. The easiest way to find out whether a journal title is available through one of these electronic databases is to search for the title of the journal in our library catalog :

Click on the purple "Online Access" button to see what databases the journal title is available in and select an appropriate database that covers the date of the issue where the cited article appears:

Although you will find copies of articles from most periodicals in one of these electronic databases, certain periodicals are only available in print format rather than through electronic databases.

The twentieth edition of The Bluebook contains various revisions to Rule 18. One major revision is that all citations to electronic resources are now treated as direct citations. You should save a copy of content from an Internet source by either saving it to PDF or by taking a screenshot.

Archiving URLs: The Bluebook strongly encourages archiving URLs with archival tools such as Perma.cc (see Bluebook Rule 18.2.1(d)). This is important to ensure that future readers will be able to access the content cited in an Internet source as it appeared on the date that the Perma link was created, even if the webpage is subsequently modified or taken down. For assistance in generating Perma links, please see the Perma.cc section of this guide.

When you encounter citations to cases, constitutions, codes, and other sources from non-U.S. countries, you may have no idea where to begin to track down the source. You should always refer to Bluebook T2 (which is online, not in the print book) which provides helpful guidance for each country, including links to authoritative versions of sources online.

The Gallagher Law Library offers numerous research guides to assist you with conducting research about foreign and international law and citing to foreign and international law. To view a compilation of all of these research guides, please click on the link below:

• Foreign & Comparative Law [Gallagher Law Library]

There are many other sources of PDF images, including the following:

• eJournal Search Search across UW Libraries' eJournals
• Google Books Full-text search of books, including materials in the public domain from major research libraries. To find these, search for materials published before 1923.
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Sources of Law

Lesson plan.

Where do laws come from? This lesson teaches students about the sources, types, and unique systems of law that exist in the United States. Students learn about sources of law from the Constitution to local ordinances. They also compare and contrast civil and criminal law and peek into the special systems of military and juvenile justice.

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Get access to lesson plans, teacher guides, student handouts, and other teaching materials.

• Sources of Law_Teacher Guide.pdf
• Sources of Law_Student Docs.pdf

I find the materials so engaging, relevant, and easy to understand – I now use iCivics as a central resource, and use the textbook as a supplemental tool. The games are invaluable for applying the concepts we learn in class. My seniors LOVE iCivics.

Lynna Landry , AP US History & Government / Economics Teacher and Department Chair, California

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• Jurisprudence
• Law by custom
• Legislations
• Obiter dictum
• Ratio decidendi

Sources of law in jurisprudence

This article is written by Adhila Muhammed Arif , a student of Government Law College, Thiruvananthapuram. This article seeks to explain the sources of law in jurisprudence, its classification, essential features and characteristics of those sources. 

This article has been published by Sneha Mahawar .

Table of Contents

Introduction 

The word ‘Jurisprudence’ is derived from the Latin word jurisprudentia , which means science or knowledge of law. It is a very vast area of study and it consists of several ideologies and theories on how law has been made. It also includes the relationship of law with individuals and other social institutions within the scope of its study. There are various sources from which we derive law. Several jurists and scholars have attempted to classify the sources of law. However, the most common sources in all these classifications are legislations, judicial precedents, and customs. 

Law and sources of law

According to John Chipman Grey, who was a Harvard Law School professor,  “ the Law of the State or of any organised body of men is composed of the rules which the courts, that is the judicial organ of the body, lays down for the determination of legal rights and duties”. Though Gray’s definition has been criticised for being narrow, he distinguished law from the sources of law. According to him, law has evolved through case laws and sources of law are where we get the content and validity of law from. Essentially, law refers to the rules or code of conduct and its sources refer to the materials from which it gets its content. 

Types of sources of law

John Salmond , a legal scholar renowned for his ideologies on law in the field of jurisprudence, classified the sources of law into mainly two categories,i.e., material sources and formal sources. 

Material sources

Material sources of law are those sources from which the law gets its content or matter, but not its validity. There are two types of material sources which are legal sources and historical sources. 

Legal sources 

Legal sources are the instruments used by the state which create legal rules. They are authoritative in nature and followed by courts of law. These are the sources or instruments that permit newer legal principles to be created. According to Salmond, legal sources of English law can be further classified into four categories- 

• Legislation, 
• Precedent, 
• Customary law, and
• Conventional law. 

Historical sources

Historical sources are sources that influence the development of law without giving effect to its validity or authority. These sources influence legal rules indirectly. The difference between legal and historical sources is that all laws have a historical source but they may or may not have a legal source. Decisions given by foreign courts serve as an example for this kind of source.  

Formal sources 

Formal sources of law are the instruments through which the state manifests its will. In general, statutes and judicial precedents are the modern formal sources of law. Law derives its force, authority, and validity from its formal sources. 

According to Keeton , the classification given by Salmond was flawed. Keeton classified sources of law into the following: 

Binding sources 

Judges are bound to apply such sources of law in cases. Examples of such sources are statutes or legislation, judicial precedents, and customs. 

Persuasive sources

Persuasive sources are not binding but are taken into consideration when binding sources are not available for deciding on a particular subject. Examples of such sources are foreign judgements, principles of morality, equity, justice, professional opinions, etc. 

Precedent as a source of law

Judicial precedents refer to the decisions given by courts in different cases. A judicial decision has a legal principle that is binding on the subordinate courts. Once a court has delivered a judgement on a particular case, the courts subordinate to it must abide by the precedent while deciding on similar cases with similar facts. Some of the most influential judicial precedents in India are the following: 

• Kesavananda Bharati v. the State of Kerala (1973) : This case is what introduced the concept of the basic structure doctrine in India, protecting the fundamental features of the Indian Constitution from being removed. 
• Gian Kaur v. the State of Punjab (1996) : This judgement affirmed that the right to die does not come within the scope of Article 21 of the Indian Constitution . The court affirmed that every person has the right to die with dignity. The court also stated that the right to die in a dignified manner is not the same as the right to die in an unnatural way. 
• Maneka Gandhi v. the Union of India (1978) : The court held Section 10(3)(c) of the Passports Act, 1967 as void since it violated Article 14 and 21 of the Indian Constitution. 
• Indra Sawhney v. the Union of India (1992) : This judgement set a ceiling of 50% for reservation of backward classes. It also held that the criteria of classifying groups as backward classes cannot be limited to economic backwardness. 

The doctrine of Stare Decisis 

The authority of judicial precedents is based on the doctrine of stare decisis. The term stare decisis means to not disturb the undisturbed. In other words, precedents that have been valid for a long time must not be disturbed. 

In India, subordinate courts are bound by the precedents of higher courts, and higher courts are bound by their own precedents. But when it comes to High Courts, the decision of one High Court is not binding on the other High Courts. Their decisions are binding on the subordinate courts. In cases where there are conflicts between decisions of court with the same authority, the latest decision is to be followed. As per Article 141 of the Constitution of India, the Supreme Court’s decisions are binding on all the courts across the country. However, the Supreme Court’s decisions are not binding on itself. In subsequent cases where there are sufficient reasons to deviate from the earlier decision, the Supreme Court can do so. 

Doctrine of Res Judicata 

The term res judicata means subject matter adjudged. As per this doctrine, once a lawsuit has been decided upon, the parties are barred from raising the same issue in courts again, unless new material facts have been discovered. They can’t raise another issue arising from the same claim either since they could have raised the same in the previous suit. 

Ratio Decidendi 

As per Salmond, a precedent is a judicial decision that contains a legal principle with an authoritative element called ratio decidendi. Ratio decidendi means reason for the decision. Whenever a judge gets a case to decide on, he has to adjudicate it even when there is no statute or precedent concerning it. The principle that governs such a decision is the reason for the decision which is also called ratio decidendi. 

Obiter Dicta 

The term obiter dictum means mere say by the way. This term is used to refer to statements of law that are not required for the case at hand. A judge may in the judgement of a case declare some legal principles to be applied in a hypothetical situation. It does not have much impact or authority. However, the subordinate courts are bound to apply the principles. 

Types of precedents 

Authoritative and persuasive.

Authoritative precedents are those precedents that must be followed by subordinate courts whether they approve of it or not. They create direct and definite rules of law. They fall into the category of legal sources of law. Persuasive precedents on the other hand do not create a binding obligation on the judges. Persuasive precedents can be applied as per the discretion of the judge. 

Authoritative precedents can be classified into the following two types: 

Absolute authoritative

An absolutely authoritative precedent is binding on subordinate courts in an absolute manner and it cannot be disobeyed even if it is wrong. 

Conditional authoritative

A conditionally authoritative precedent is binding on other judges but it can be disregarded in certain special circumstances as long as the judge shows the reason for doing so. 

Original and Declaratory 

According to Salmond, a declaratory precedent is a precedent that simply declares an already existing law in a judgement. It is a mere application of law. An original precedent creates and applies a new law. 

Factors increasing the authority of a precedent 

• The number of judges constituting the bench that makes the decision. 
• A unanimous decision has more weight. 
• Approval by other courts, especially the higher courts. 
• The enactment of a statute that carries the same law subsequently. 

Factors decreasing the authority of a precedent 

• Abrogation of judgement by reversal or overrule of a higher court. 
• Abrogation of judgement by a statutory rule enacted subsequently. 
• Affirmation or reversal of decision on a different ground. 
• Inconsistency with the previous decision of a higher court. 
• Inconsistency with previous decisions of the court of the same rank. 
• Inconsistency with already existing statutory rules. 
• Erroneous decision. 

Legislation as a source of law

Legislation refers to the rules or laws enacted by the legislative organ of the government. It is one of the most important sources of law in jurisprudence. The word legislation is derived from the words legis and latum, where legis means law and latum means making. 

Types of legislation 

According to Salmond, legislation can be classified into two types- Supreme and Subordinate. 

• Supreme legislation 

Legislation is said to be supreme when it is enacted by a supreme or sovereign law-making body. The body must be powerful to the extent that the rules or laws enacted by it cannot be annulled or modified by another body. Indian Parliament cannot be said to be a sovereign law-making body as the laws passed by the parliament can be challenged in the courts. The British Parliament, on the other hand, can be said to be a sovereign law-making body since the validity of laws passed by it cannot be challenged in any court. 

• Subordinate legislation 

Legislation enacted by a subordinate law-making body is said to be subordinate legislation. The subordinate body must have derived its law-making authority from a sovereign law-making body. It is subject to the control of the supreme legislative body. The following are the different kinds of subordinate legislation: 

• Executive legislation: This is a form of subordinate legislation where the executive is granted or conferred certain rule-making powers in order to carry out the intentions of the legislature. 
• Colonial legislation: Many territories across the globe were colonised by Britain and such territories were called colonies. The legislation passed by the legislature of such colonies was subject to the control of the British Parliament. 
• Judicial legislation: Courts also have a role in enacting laws that aid in regulating the internal affairs and functioning of courts. 
• Municipal legislation: Municipal authorities also possess the law-making power as they enact bye-laws. 
• Autonomous legislation: Another kind of legislation is autonomous legislation, which is concerned with bodies like universities, corporations, clubs, etc. 
• Delegated legislation: Sometimes legislative powers may be delegated to certain bodies by the parliament through principal legislation. A principal act may create subsidiary legislation that can make laws as provided in the principal legislation. 

Custom as a source of law

Custom refers to the code of conduct that has the express approval of the community that observes it. In primitive societies, there were no institutions that acted as authority over the people. This led to people organising themselves to form cohesive groups in order to maintain fairness, equality, and liberty. They started developing rules with coordinated efforts to make decisions. They eventually started recognising the traditions and rituals practised by the community routinely and formed a systematised form of social regulation. In India, laws relating to marriage and divorce are mostly developed from customs followed by different religious communities. Additionally, several communities belonging to the Scheduled Tribes category have their own customs related to marriage. As a result of that Section 2(2) of the Hindu Marriage Act, 1955 has exempted Scheduled Tribes from the application of this Act. 

Requisites of a valid custom

• Reasonability: The custom must be reasonable or practical and must conform with the basic morality prevailing in the modern-day society. 
• Antiquity: It must have been practised for time immemorial. 
• Certainty: The custom must be clear and unambiguous on how it should be practised.  
• Conformity with statutes: No custom must go against the law of the land. 
• Continuity in practice: Not only the custom must be practised for time immemorial, but it should also be practised without interruption. 
• Must not be in opposition to public policy: The custom must adhere to the public policy of the state. 
• Must be general or universal: There must be unanimity in the opinion of the community or place in which it is practised. Hence, it should be universal or general in its application. 

Sir Henry Maine’s views on customs

According to Sir Henry Maine, “Custom is conception posterior to that of Themistes or judgments” . Themistes refers to the judicial awards dictated to the King by the Greek goddess of justice. The following are the different stages of development of law according to Henry Maine: 

• At the first step, law is made by rulers who are inspired by the divine. Rulers were believed to be messengers of God. 
• At the second stage, following rules becomes a habit of the people and it becomes customary law. 
• At the third stage, knowledge of customs lies in the hands of a minority group of people called the priestly class. They recognise and formalise customs. 
• The final stage is the codification of customs. 

Types of customs 

• Customs without a binding obligation 

There are customs that are followed in society that do not have a legal binding force. Such customs are related to clothing, marriage, etc. Not abiding by such customs can only result in a social boycott and not legal consequences. 

• Customs with a binding obligation

Customs that are meant to be followed by law are called customs with a binding obligation. They are not related to social conventions or traditions. There are mainly two types of customs with binding obligations- Legal customs and Conventional customs. 

• Legal customs: Legal customs are absolute in sanction. They are obligatory in nature and attract legal consequences if not followed. Two types of legal customs are general customs and local customs. General customs are enforced throughout the territory of a state. Local customs on the other hand operate only in particular localities. 
• Conventional customs: Conventional customs are those customs that are enforceable only on their acceptance through an agreement. Such a custom is only enforceable on the people who are parties to the agreement incorporating it. Two types of conventional customs are general conventional customs and local conventional customs. General Conventional Customs are practised throughout a territory. Local Conventional Customs on the other hand is restricted to a particular place or to a particular trade or transaction. 

Difference between custom and prescription 

The main difference between the two is that custom gives rise to law and prescription gives rise to a right. Custom is generally observed as a course of conduct and is legally enforceable. Prescription refers to the acquisition of a right or title. When local custom applies to society, the prescription is applicable only to a particular person. For example, when a person X’s forefathers have been grazing their cattle on a particular land for years without restriction, X acquires the same right to graze his cattle on the land. The right acquired by X is called a prescription. For a prescription to be valid, it must be practised from time immemorial. In India, uninterrupted enjoyment for 20 years is essential to acquire a right to light and air as per the Indian Easements Act, 1882 . 

Conclusion 

To conclude, sources of law in jurisprudence can be classified on the basis of several grounds. But the most notable or common classification divides it into legislation, precedent, and custom. Precedent refers to the previous judicial decisions. The legislation refers to the statutory rules enacted by the legislature. Custom refers to the age-old practises of a community that has solidified its presence so much that it becomes the law. Though legislation seems to be the agency through which we get laws, it is just the primary source. Many laws that we have are a reflection of what we as a society have followed for generations. Also, many cases show how sometimes the law of the land is inadequate or incapable of predicting what issues could arise in subsequent disputes. This calls for the judiciary to elaborate or interpret the law of the land, setting judicial precedents for several issues. 

• https://blog.ipleaders.in/judicial-precedent-source-law/  
• https://blog.ipleaders.in/legislation-source-law/  
• https://blog.ipleaders.in/customs-as-a-source-of-law/  
• https://www.lawaudience.com/sources-of-law-in-jurisprudence-an-overview/  

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Special counsel again asks for modified release conditions for Trump in classified documents case

Special counsel Jack Smith on Friday asked the judge overseeing former President Donald Trump’s classified documents case in Florida to bar him from making statements that endanger law enforcement.

The filing marks the second motion from Smith in days urging U.S. District Judge Aileen Cannon to modify Trump’s conditions of release in the case. And like the motion before , Friday’s motion was based on Trump’s false claims about FBI agents being prepared to kill him during the 2022 Mar-a-Lago search for classified documents.

“Trump’s repeated mischaracterization of these facts in widely distributed messages as an attempt to kill him, his family, and Secret Service agents has endangered law enforcement officers involved in the investigation and prosecution of this case and threatened the integrity of these proceedings,” Smith said in the filing.

Trump’s campaign had claimed in a fundraising email that President Joe Biden was “locked & loaded ready to take me out,” comments that echoed similar statements by the former president about FBI agents.

Trump was not in Florida at the time of the raid, and the FBI has said the authorization he apparently referenced is typical language limiting the use of force.

The policy prohibits deadly force except for “when the officer has a reasonable belief that the subject of such force poses an imminent danger of death or serious physical injury to the officer or to another person,” Friday’s motion explained.

“Trump, however, has grossly distorted these standard practices by mischaracterizing them as a plan to kill him, his family, and U.S. Secret Service agents,” Smith said in the motion. “Those deceptive and inflammatory assertions irresponsibly put a target on the backs of the FBI agents involved in this case, as Trump well knows.”

Smith’s previous motion on the issue was denied on Tuesday because Cannon argued that the special counsel’s efforts to discuss the issue with Trump’s defense team were “wholly lacking in substance and professional courtesy.” Trump’s lawyers had argued that by not consulting the defense before filing the motion, prosecutors violated procedure.

Friday’s motion, however, included a certificate confirming that prosecutors conferred with defense about the motion via a phone call on Wednesday, as well as emails on Thursday and Friday.

Trump’s lawyers requested that the certificate include their statement, in which they confirm that Trump “opposes the motion.”

“On the merits, President Trump’s position is that the requested modification is a blatant violation of the First Amendment rights of President Trump and the American People, which would in effect allow President Trump’s political opponent to regulate his campaign communications to voters across the country,” Trump’s team said.

Prosecutors addressed the First Amendment issue in their motion, arguing their request did not conflict with the amendment, pointing to pretrial release conditions often including measures that restrict certain actions and speech.

Smith’s request echoes the gag order imposed on Trump in the business records falsification case. Judge Juan Merchan placed a gag order , which prevents Trump from attacking jurors and witnesses. Trump was fined thousands of dollars for violating the gag order multiple times.

Megan Lebowitz is a politics reporter for NBC News.

Daniel Barnes reports for NBC News, based in Washington.