This is a really simple, and yet profound question. Is there a point to study the sources of law without giving any thoughts to anthropological studies (i.e. Malinowski among others) carried out among the wild tribes? Can we really, sitting behind our desks, discover the nature and 'pedigree' of regal rules?
Traditionally legal scholars distinguish the internal and the external perspectives to law. On the one hand, the perspective of the participant in the process of construction and maintenance of a regulatory system (cf. Kelsen's Pure Theory of Law.). On the other hand, the perspective of the observer usually taken by sociologists. Such strong division between the two perspectives has been advocated not only by legal scholars (Hart. The Concept of Law), but also by sociologists (Luhmann. Law As a Social System). Not all sociologists/legal scholars agree: an interesting insight over this debate can be found for instance in Tuori, K. (2006). Self-description and external description of the law. No Foundations, 2, 27–43.
My current perspective is that the sources of law are a social epiphenomenon which formalizes and tries to promote coherency and predictability on social structures. Where law describes the institutional domain in more abstract terms, often decontextualized and based on principles, reality is mainly concerned about the "contextualization" of such principles. This contextualization is evidently not an operation of isomorphism.
Case law, or, more in general, any previous judgement on behaviour given by a community (or by the "judges", i.e. the responsibles of judgement within the community) align the "brute" facts with the "legal" facts, providing the people with a normative stance toward behaviours, collectively discriminating the good/correct from the bad/wrong. In this sense, I would say that stories of cases transmitted in wild tribes may play a similar role of "chain of transmission" with the "sources of law" of that tribe. Without an investigation on their specific contextualization, the chances of having a completely wrong interpretation of those rules, in terms of their actual impact, is critically high.
To conclude, the system of source of law has to be studied, in order to investigate its inherent systematic nature and eventual conflicts due for instance to historical reasons; but this study cannot be "anthropologically" complete without an investigation on the application of such laws, exemplified by cases used as guidelines by the "judges" of the community. I assume that direct communications with these individuals would decrease the probability of misunderstanding, scoping and testing interactively all ambiguities due to translation and cultural drift, and anchoring concepts to more concrete facts, rather than abstract concepts (see Ross, A. (1957). Tû-tû. Harvard Law Review, 70, 812–825.)
From my point of view, It is very difficult to study the sources of law without giving any relevance to the human culture and the human history. The law is usually linked to the problems of the society of any moment.
When analyzing the sources of law, it seems they are not properly "sources". The right arises within himself. The law, jurisprudence, doctrine, among others, are produced by the participants mentioned by Giovanni Sileno. But when produced as an integral part, we can no longer name as a source. Thus, rightly Joaquín Sarrión in highlighting the importance of the study of sources of law in the cultural and historical context. I agree with these positions.
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