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The compilation of very different kinds of foundations can be structured by the exposition of some systematic movements. Such movements do not have to match the course of history.

Foundationalist thinking wavers between justification and explanation. They come together in myths and religion. Natural law theories of a social contract, too, deploy an only seemingly historical construction to disguise a primordial principle of normativity and legitimacy. In the 18th century, however, the distinction between facts and norms (Hume) and Montesquieu’s motto—“I only give their reasons, but do not justify their customs” (cf. , 58)—becomes a scientific program. There are, however, again and again attempts to achieve justification or a critique of legal institutions on the basis of factual, e.g., biological or anthropological foundations. The ambiguity of “morality” seems to seduce one to mix empirically verifiable propositions about the origin and development of moral consciousness, about moral attitudes in the population or relevant groups, with moral postulates towards the state or legal order.

The topic of the sources of law is a traditional one in jurisprudence. Yet, remarkably, very little attention has been paid to the topic in recent analytical jurisprudence. Much contemporary analytical legal theory does not consider the notion of a “source of law” at all. There is no entry for the term in the indices of such central contemporary texts as Alexy 1989; Beyleveld and Brownsword 1986; Dworkin 1978 and 1986; Finnis 1980; MacCormick 1978. Other theorists mention the term and pass on. Raz, for example (see Raz 1979), characterizes his theoretical position as “the sources thesis,” that every law has a social source. But he gives relatively little articulation of the concept of a source. Rather, he lays out the implications of such a thesis, leaving the term “source” intuitive and primary. Raz is defending a version of legal positivism. Others too mention the term simply as part of a defence of (Hart 1994; Waluchow 1994) or a critique of (Peczenik 1983; Soper 1984) legal positivism. There is no philosophical examination of the notion of a source of law outside of its use as a piece in the wider game of general theory of law. There is too much theory and too little description, to elucidate what it is to be a source of law.

I deal first with legislation as a source of law for a simple reason: Legislation appears intuitively as the paradigm source of law. As we shall see by the end of this chapter, this intuition needs careful handling if it is not to mislead the legal theorist. But it is an excellent starting-point. When we think of law in an ordinary, or pre-philosophical, context, we think of a set of rules controlling behaviour, which are stipulated in one place (the legislature) and applied in another (the courts). Laws presuppose law-makers. Laws tell us what to do, and so there must be some one person or body of persons who does the telling. In H. L. A. Hart’s famous tale of the transition from a pre-legal to a legal world (Hart 1994, 91ff.), legislation plays a prominent part. For there to be law, we need a way of identifying which norms are legal norms; we need an agency to introduce new laws, or amend the ones that exist. Only when all this is in place, is there point to turning to the remaining issue of an agency for the settlement of disputes under these laws. The legislature is also deeply implicated in the central ways in which law differs from morality. Laws typically come into existence, are changed, or cease to exist at specific points in time, and as a result of the following of specific procedures. These are not features of moral norms, and as features of laws all typically occur as a result of legislative activity.

The second of the classical or traditional sources of law is Precedent, expressed in the maxim , “to stand by what has been decided, and not to disturb what is still.” Many questions, however, arise concerning exactly what it is to “stand by what it is decided.” Reasoning from precedent is a distinctive form of reasoning: Is it truly distinctive, or can it be reduced to some other form of reasoning? Is it peculiar to the law, or is it merely that in the law reasoning from precedent takes a special form? Why employ this form of reasoning at all? What does it mean to say that a court is “bound” by precedent? Is such talk even meaningful? In this chapter, I shall proceed as follows. In Section 3.1, I will characterize the notion of precedent in general, without special reference to the law. Then in Section 3.2 I shall examine more closely how in fact the idea of precedent functions in the typical legal context as a source of law. Section 3.3 will say something about precedent and legislation. In Sections 3.4 and 3.5 I shall discuss issues that arise when trying to understand the bindingness of precedent, in the former looking at rule-scepticism and judicial comity, and in the latter at conventional bindingness and ruleness. In Section 3.6 I shall consider the justification of precedent.

The third of the three traditionally main sources of law is Custom. The standard view of contemporary analysis is that the importance of custom historically is great, but, from the point of view of current legal practice, its importance is slight. This is so both in the common law and the civil law traditions. The only exception is in the case of international law, where customary law is still of great importance: The sources of international law will be considered separately in Section 8.4 below. Customary law is still important, of course, in communities where the mode of existence, application, and enforcement of binding social norms is primarily informal: The law, or “law,” of such communities is not discussed here.

In this chapter, I will consider the claims of delegation, or subordinate legislation, to be a strictly institutionalized source of law. By “delegation” is meant the following. It frequently happens that a legislative body will enact a broadly phrased regulatory framework, and then leave the administration and application to cases of that framework to a subordinate tribunal or system of tribunals. The subordinate body is thus a creature of legislation; it is not the original source of the legal norms that it administers and applies. On the other hand, the legislative rules in its charge are phrased in ways which ensures that the subsidiary body has a great deal of room in which to clarify the import of the legislative norms, to produce sub-norms, to develop procedures, and ultimately to adjudicate cases. Thus prima facie there is a good case to be made for seeing the subordinate body as an independent source of law. Such a case cannot be unqualified, simply because of the dependence of the subordinate body on the legislature. The dependence is a form of subordination by derivation. But the question here is whether such a dependence still leaves room for theory to consider delegation as a source of law.

Standard jurisprudential discussions of sources of law make no reference to a, or the, constitution as a source of law. From the point of view of a society’s daily life with the law, this seems remarkable. What has been called “the astonishing growth of constitutionalism that has taken place around the world in the last sixty years” (Gardbaum 2001, 707), “the global hour of the constitutional state” (Walker 2002, 317), “the phenomenon of judicial enforcement of human rights [...] accepted as axiomatic” (McCrudden 2000, 500), needs no emphasis. Decisions by Supreme or High Courts concerning the constitutional validity or otherwise of rules of law, especially legislation, are a familiar focus of political debate and dispute, especially when the protection of individual or human rights is at stake. The discourse of constitutionality and constitutional rights is endemic both inside and outside the formal institutions of the law. If the existence and application of constitutions and constitutional norms is so central to legal, political, and social life, how is it then that little or no attention is paid to constitutions as sources of law?

Despite the great many works which jurists devote to the sources of law—and which, as Roger Shiner observes in Section 1.1 of this volume, are cast in a legal-dogmatic perspective—recent analytical jurisprudence seems to largely ignore the theoretical relevance of this topic. And, with some exceptions, the same applies to the tradition of civil law. Other questions come to the centre of legal-theoretical investigation: the ontology and nature of law, the theory of normativity, law and morality, law and politics, legal epistemology, legal reasoning, and so on. This does not mean that the sources of law are completely disregarded, but perhaps that legal philosophers tend to treat this question from specific perspectives. To see this, we will take a quick look, by way of example, at three classic contributions to the general theory of sources: those of Hans Kelsen, H. L. A. Hart, and Alf Ross.