6.2 Sources of Law; Rights and Duties
Key Takeaways
- Salmond’s classic sources framework for civil law: legislation, precedent, custom, and agreement (treaty/contract-type recognition themes)
- Legislation is the formally enacted will of the legislature; precedent binds through judicial hierarchy; custom requires long usage and reasonableness; agreement binds parties when law recognizes it
- Legal rights are interests protected by law; duties are correlative obligations—perfect rights have enforceable correlative duties
- Key right classifications: perfect/imperfect, positive/negative, real (in rem)/personal (in personam)
- Ingredients of a legal right typically include subject (owner), object, content, and person of incidence (against whom it avails)
Sources of Law; Rights and Duties
Quick Answer: Under the Salmond framework tested on LAW-GAT, the main sources of law are legislation, precedent, custom, and agreement. A legal right is an interest recognized and protected by law; every right has a correlative duty. Master the pairs perfect/imperfect, positive/negative, and real (in rem)/personal (in personam), plus the ingredients of a right (owner, object, content, person bound).
Sources of Law in the Salmond Framework
A source of law is the origin from which a legal rule draws its authority for courts. Salmond’s teaching tradition organizes civil-law sources in a practical set that MCQs still use:
| Source | Core idea | Typical exam cue |
|---|---|---|
| Legislation | Rules formally enacted by the law-making authority | Statute, Act, Ordinance, Code |
| Precedent | Law declared in prior judicial decisions | Stare decisis, ratio decidendi, hierarchy of courts |
| Custom | Long-continued usage accepted as binding | Antiquity, continuity, reasonableness, certainty |
| Agreement | Binding force of pacts the law recognizes | Contract between parties; also treaty themes in broader outlines |
Some textbooks list professional opinion or writings of jurists as persuasive materials; for LAW-GAT English Jurisprudence, prioritize the four-source Salmond set above unless the stem explicitly adds another category.
Legislation
Legislation is law made by the legislature (or other competent legislative authority) in the prescribed form. It is the most direct and, in modern systems, often the supreme formal source within constitutional limits.
Types you may see in options
| Type | Meaning |
|---|---|
| Supreme / primary legislation | Acts of the highest legislature (subject to constitution) |
| Subordinate / delegated legislation | Rules, regulations, by-laws made under statutory power |
| Autonomic legislation (in some texts) | Law-making by autonomous bodies under legal authority |
Application rules for MCQs
- A clear statute generally overrides inconsistent custom
- Courts interpret legislation; they do not (in orthodox theory) “make” primary statutes
- Constitutional supremacy (in systems like Pakistan) means even legislation must conform to the Constitution—but that is public-law overlay; Salmond’s source label for the Act remains legislation
Trap: Do not call a High Court judgment “legislation.” Judgment = precedent (or at least judicial decision); Act of Parliament/Assembly = legislation.
Precedent (Case Law)
Precedent is the making of law by courts through decisions that later courts follow.
Key vocabulary
| Term | Meaning |
|---|---|
| Stare decisis | Stand by decided matters—follow prior holdings |
| Ratio decidendi | The legal principle necessary for the decision—binding part |
| Obiter dicta | Things said by the way—persuasive, not strictly binding |
| Binding precedent | Must be followed by lower courts in the hierarchy |
| Persuasive precedent | May guide but need not bind (e.g., foreign courts, same-level coordination) |
Hierarchy idea (exam skeleton)
- Lower courts follow higher courts of the same system
- A decision is precedent for like legal issues, not for every factual resemblance
- Precedent develops law interstitially where statutes are silent or need interpretation
Salmond-style note: Precedent is a formal source because the legal system authorizes courts to declare law that binds thereafter—not because judges invent private morals.
Custom
Custom is a rule of conduct established by long usage and accepted as legally binding.
Classic requisites (memorize the list)
- Antiquity / long duration — not a brand-new fashion
- Continuity — unbroken in the required sense
- Peaceable enjoyment — not maintained only by force
- Certainty and clarity — content must be ascertainable
- Reasonableness — not absurd or oppressive
- Conformity with statute — custom generally cannot repeal a clear Act
- Obligatory character — felt as binding, not optional courtesy
Custom vs usage
| Custom (legal) | Mere usage / practice | |
|---|---|---|
| Binding force | Recognized as law | Social habit only |
| Court enforcement | Yes, when proved and valid | No, unless imported into contract etc. |
Trap: “Everyone does it” ≠ custom. MCQs love options that omit reasonableness or consistency with legislation.
Agreement
Agreement as a source means the law gives binding force to consensual arrangements that meet legal requirements (capacity, free consent, lawful object, etc., in contract theory).
| Level | Example |
|---|---|
| Private agreement | Contract creating rights in personam between parties |
| Public/international agreement (broader outlines) | Treaties between states—source in international law discourse |
For Salmond civil-law MCQs, focus on contract/agreement as generating personal rights and duties recognized by municipal law.
Hierarchy / application snapshot
| Conflict pattern | Usual resolution theme |
|---|---|
| Statute vs custom | Statute prevails |
| Statute vs agreement | Agreement cannot legalize what statute forbids; freedom of contract is within law |
| Precedent vs statute | Courts apply statute; precedent yields to clear legislation |
| Two agreements | Later variation, interpretation rules, public policy limits |
Rights and Duties: The Correlative Structure
What is a legal right?
A legal right is an interest recognized and protected by a rule of law. Protection typically means the law will compel others to respect it (through remedies: damages, injunction, specific relief, prosecution where relevant).
What is a legal duty?
A legal duty is an obligation imposed by law to do or forbear. In Hohfeldian/Salmond teaching style used in exams:
Right in A ↔ Duty in B (correlatives)
If A has a right that B shall not trespass, B has a duty not to trespass.
| Concept | Correlative |
|---|---|
| Right | Duty |
| Liberty / privilege (in advanced tables) | No-right |
| Power | Liability |
| Immunity | Disability |
LAW-GAT English Jurisprudence usually sticks to right–duty as the main pair; know the word correlative.
Classifications of Rights (Memorize Hard)
1. Perfect rights vs imperfect rights
| Perfect right | Imperfect right | |
|---|---|---|
| Correlative duty | Fully recognized and enforceable by action | Moral or incomplete legal recognition; no full action (or limited recognition) |
| Example theme | Right to recover a contractual debt in court | Certain claims of gratitude or time-barred moral expectations (illustrative) |
| Exam cue | “Enforceable in a court of law” | “Not enforceable by action” |
2. Positive rights vs negative rights
| Positive right | Negative right | |
|---|---|---|
| Content of duty | Other must do something (perform) | Other must forbear (not interfere) |
| Example theme | Right to delivery of goods under contract | Right not to be assaulted; right to exclusive possession against interference |
3. Real rights vs personal rights (in rem / in personam)
| Real right (right in rem) | Personal right (right in personam) | |
|---|---|---|
| Avails against | World at large (all persons generally) | Specific person(s) only |
| Classic field | Property / ownership | Contract, debt |
| Example | Owner’s right that no one interfere with the land | Buyer’s right that seller deliver |
Memory: Rem = thing / against the world; Personam = against a person.
4. Proprietary vs personal (another textbook axis)
Some outlines distinguish proprietary rights (economic/estate interests) from personal rights (status, reputation, bodily integrity). Do not confuse this with in rem / in personam.
Ingredients (Elements) of a Legal Right
Salmond-style analysis breaks a right into parts. MCQs may ask “which is not an element.”
| Ingredient | Meaning |
|---|---|
| Subject of the right (person of inherence) | The owner of the right—the person in whom it resides |
| Object of the right | The thing, act, or interest over which the right exists |
| Content of the right | What the right allows/requires—acts or forbearances |
| Subject of the duty (person of incidence) | The person(s) bound by the correlative duty |
| Title (often added) | The facts that vest the right in the owner (sale, succession, statute) |
Mini example
- Owner (subject): A
- Object: Blackacre (land)
- Content: Exclusive use and exclusion of others
- Persons of incidence: All others (right in rem)
- Title: Registered sale deed
Duties: Further Exam Angles
| Classification | Idea |
|---|---|
| Positive duty | Duty to act |
| Negative duty | Duty to forbear |
| Primary duty | Original obligation (e.g., not to defame) |
| Secondary / remedial duty | Duty arising from breach (pay damages) |
| Absolute-looking duties | Owed to the state/public (criminal law themes) vs private duties |
Link to liability (Section 6.3): Breach of duty generates liability—civil, criminal, or both depending on the rule.
Worked MCQ Logic (Without Banking Real Items)
Stem pattern: “A right available against the whole world is…”
→ Right in rem / real right
Stem pattern: “A right with no enforceable remedy is…”
→ Imperfect right
Stem pattern: “Law made by the legislature is…”
→ Legislation
Stem pattern: “Long usage + reasonableness + consistency with statute…”
→ Custom
Key Takeaways
- Sources: legislation, precedent, custom, agreement
- Statute typically outranks custom; courts apply ratio, not mere obiter
- Right ↔ duty; perfect rights are enforceable
- Classifications: perfect/imperfect, positive/negative, in rem / in personam
- Ingredients: owner, object, content, person bound (+ title)
Which set correctly lists the principal sources of law in the classic Salmond framework emphasized for LAW-GAT English Jurisprudence?
A contractual right to recover the price of goods from a named seller is best classified as:
Which statement best describes a perfect legal right in Salmond-style jurisprudence?