Synopsis

  1. Introduction
  2. Legislation in general
  3. Legislation as a source of law
  4. Types of legislation
  5. Supreme Legislation
  6. Subordinate Legislation
  7. Delegated Legislation
  8. Legislation and custom
  9. Legislation and precedent
  10. Supremacy of legislation over precedent
  11. Conclusion

 

1.    Introduction

Legislation means lawmaking. When a law making body which is specifically authorized to do so formulates laws it is known as legislation. It has its own importance as a source of law and can be easily distinguished with other sources of law like precedent and custom.

2.    Legislation in general

Generally speaking, legislation has been formed from two words – ‘legis’ which means law and ‘latim’ that means making. So, literally speaking, legislation means lawmaking. So, the process in which an authorized body makes and enacts laws is called legislation.

So, if taken in common parlance or if given a broader meaning, any government body that lays down, enacts or alters law will said to be exercising legislative power. So it would include all sources of law for example if a court gives a judgment laying down regulations to be followed by certain authorities, such judgment should be said to be legislation.

3.    Legislation as a source of law

But legislation as a source of law is a very strict concept according to which only the lawmaking by an authorized body or defined person will be termed as legislation.

Customary or conventional laws and judicial decisions do not constitute legislation as a source of law and hence a concept of jurisprudence.

4.    Types of legislation

Legislation can be done by many different authorities and on the basis of that, there has been a differentiation done between various types of legislation. Broadly, legislation can be divided into two categories – Supreme Legislation and Subordinate Legislation.

Supreme legislation is when the sovereign itself lays down a law and subordinate is when sovereign delegates its law making power to any subordinate authority which thereby makes laws.

These types of legislations have been discussed in detail below:

a)   Supreme Legislation

  • Lawmaking by the supreme authority of state or sovereign itself is called Supreme Legislation.

 

  • So, the basic idea is that no authority should have the power to control or check it in any way.

 

  • The authority making laws should be omnipotent and there is no limitation of any sort on its powers to make laws.

 

  • In UK parliament is the sovereign authority to make laws and there are no limitations on its powers.

 

  • In India, even though there are certain checks on lawmaking authority of Parliament but still it is the Supreme authority to make laws in India.

b)   Subordinate Legislation

  • Subordinate legislation is when the Supreme Authority authorizes any subordinate body to make laws such lawmaking is called subordinate legislation.

 

  • Such legislation is placed under a check of Supreme Authority.

 

  • Subordinate legislation can be further classified as follows:

 

  • Autonomous law: when power is conferred by supreme authority upon group of inviduals in relation to matters governing them, it is autonomous legislation. It basically gives power to that group to make laws for themselves and run autonomously. For example, railway company or a university.

 

  • Judicial rules: Powers are conferred upon the judicial authority to make rules for their own administration. For example, the power of the Supreme Court and High Court to make rules for their own administration.

 

  • Local laws: the power to make rule is conferred upon local bodies like Municipal Corporations, Zila Parishads etc.

 

  • Colonial Law: It is applicable only in cases where any country is under the control of some other country and the country in controlling authority has the power to supervise laws in the subordinate country. In such case laws made by subordinate country is colonial law. For example, laws made by one of the British Colonies and dominions.

 

  • Executive made law: This is also known as delegated legislation which is discussed in detail below.

c)    Delegated Legislation

  • So, when power to make law is conferred by the supreme authority over the executive, it is called delegated legislation.

 

  • The power so conferred upon the executive body to make laws are for the following reasons:

 

  • Because of lack of time Parliament does not have time to formulate laws always by itself. So it delegates it to the executive.

 

  • Sometimes the matter on which law is to be made is very technical in nature and would need high-level technical knowledge and assistance not always present in parliament. Hence delegated legislation.

 

  • It is also done so as to accommodate future exigencies and requirements which cannot be so frequently done by parliament looking forward to its pendency of works.

 

  • To smoothen out the process of making law for local areas where formulating law in compliance with the needs of people is essential. So, the related executive body is delegated with such power of lawmaking.

 

  • Experimentation is another aspect in which laws are to be made and implemented on different dates and according to different needs of people in different areas. Hence delegated legislation.

 

  • Delegated legislation may create danger in certain aspects which according to Keeton are two-fold:

 

  • The delegation of excessive powers.

 

  • Assumption of wider powers than provided by Parliament.

 

  • However, these dangers can be easily safeguarded through the following means:

 

  • By placing parliamentary control over it. The Parliament shall still be under the power to accept, modify or strike down the laws formulated under delegated legislation.
  • Judicial authority can also be placed over it under which a court or legal authority can decide upon the constitutionality of any law laid down.

 

  • Proper publicity is also a necessity for delegated legislation in absence of which it would become ultra vires.

 

  • Delegated legislation is valid only when it is made within the limits of powers delegated to the concerned authority.

 

  • In India delegated legislation is controlled and checked by superior authorities and is required to be constitutional in order to be held valid and done within the limits of powers conferred upon it.

5.    Legislation and custom

Customs are the ways that have been followed by people in the society from times immemorial and so are existing in present times only because of their antiquity and uninterrupted practice from a very long time. The basis of custom is that something that is being followed by people without any interruption from a long time should be the will of people and so it should be protected.

Legislation, on the other hand, means laws laid down by some authority of the state for the people of the state. It is based on reliance of fact that state will lay down or enact a law only for the benefit of its people and not otherwise.

Legislation as a source of law is different from custom in the following ways:

  Legislation Custom
1. Legislation enjoys de jure authority i.e. it has legal existence. They exist de facto i.e. merely as a matter of fact.
2. Its existence relies upon the express authority given by state. It exists upon implied authority of state and express will of the people.
3. It is the source of law in advanced state of society. It exists due to the ways of people in primitive society.
4. It lays down the basis of relationship between state and its people. It is generally the basis of relationship between man and man.
6. It is considered to be superior source of law. This source of law is considered to be inferior than customs.

 

6. Legislation and precedent

Precedents are the judge made laws which are laid down by the court in form of its judgment and can be made on a case to case basis.

Courts are not the proper lawmaking authority but sometimes, while deciding a case necessity is felt by the courts to lay down certain rules, regulations and procedures that it thinks should be followed but cannot be legislated upon by legislature very easily and conveniently. Such decision of court forming part of regulations is called precedents.

The difference between legislation and precedent are as follows:

Legislation Precedent
1. It is the result of the inductive method applied by the Legislature or other authorities to enact laws. It is generally deduced from the facts and circumstance of each case.
2. It can also have the effect to abrogate any existing law. It can only be constituted and the judge is always bound by the precedents of superior or higher courts.
3. It is generally codified in very clear and unambiguous language and so is easily understandable without looking at the background and reasons for enacting it. To understand a precedent one has to look at the facts and backgrounds of the case. In absence of that it is not easy to understand it in the first instance.
4. Legislations are generally very comprehensive and general in nature. Precedents are not general but specific in each case and so are not so comprehensive.
5. Legislation can be made before the actual happening of any case. Precedents are made only on the happening of an incident and to deal with the situation which has already taken place.
6. Aim of legislation is to make laws. Aim of precedent is to apply the law already enacted.
7. Application of legislation can either be retrospective or prospective. Application of precedent can only be prospective.
8. There is a positive sanction of state There is no such sanction of sovereign
9. It is mostly rigid and concrete in nature It is flexible and can be shaped according to the real facts and circumstances and so it is more of practical nature.

 

7.    Supremacy of legislation over other sources of law

It is entirely a controversial topic that whether legislation is superior source of law or the precedent. The analytical jurists claim the superiority of legislation whereas other jurists claim otherwise.

According to Austin and Bentham legislation is superior because it is made only after due consideration of all circumstances and after a detailed discussion between the parliamentarians as to what should be in the best interest of the people. Precedent on the other hand is laid down in a haste of disposing of a case at the earliest.

Other jurists are of belief that precedent is made only after looking behind the facts of each case and practical applicability of law whereas legislation is merely a rigid form and hence is abstract in nature.

According to Salmond, “ Case laws with all its imperfections has atleast this merit that it remains in living contract with reasons and justice of matters and draw from this source a flexibility and power of growth and adaption which are too much wanting in the litera scripta of the enacted law.”

According to Gray, “Case law is not only superior to statute law but all the law is judge made law”.

 

8.    Conclusion

Hence it may be concluded that Legislation being an important source of law means laying down or enacting the laws in a codified form by the sovereign or by any other authority to whom it delegates its power.

It is generally rigid in nature as any changes to it can be made only after enacting a new law on the same subject or by amending it through a proper procedure. It is also based on the idea that sufficient laws shall be made by a proper authority before happening of any incident in this behalf so as to protect the rights of people beforehand.

Legislation as a source of law is sometimes claimed to be superior to other sources of law but it is a controversial topic and entirely depends on the definition of law given by various different jurists.

 

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