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Sources of Law : Legislation

Legislation as a source of law

The term ‘legislation’ has a different meaning in a different sense. In a broad context, it includes all methods of lawmaking and therefore will take judge-made law also. In a strict sense, it is laying down of rules by the sovereign. It is similar to term legis late and is defined as a declaration of law by the competent authority. Legislation as a source of law has emerged in modern society.

According to Salmond legislation is that source of law which consists of the declaration of legal rules by a competent authority. According to Grey legislation is nothing else but the formal utterance of the legislative organs of society. According to Betham and Stuart mill legislation includes both the process of lawmaking and the law evolved as a result of this process.

There are two main reasons for considering legislation as a most effective source of law

  1. It involves laying down of legal rules by the legislature which the state recognizes as law
  2. It has force and authority of the state.

Suggested books for the topic

Kinds of Legislation

It may be divided into two forms

  1. Supreme Legislation
  2. Sub-ordinate Legislation

Supreme Legislation/ Direct Legislation

A legislation is said to be supreme legislation if it is made by the highest authority of the sovereign country. A legislation will be supreme if it cannot be challenged by any other authority. When the laws are made by the parliament of England, it is the supreme authority. But when the laws are made by the parliament of USA or India they are not supreme legislation, because they can be challenged by the courts, and courts can declare the acts as ultra-virus

Subordinate Legislation/ Indirect legislation

The legislation made by other authority than supreme authority is subordinate legislation. Whenever there is a delegation of lawmaking power by the supreme authority it will make a subordinate legislation

The validity of subordinate legislation

  1. The parent act: the act under which the power to make subordinate legislation is exercised.
  2. The delegation clause in the patent act must be valid
  3. The statutory instrument so made, must be in conformity with the delegation clause in point of substance, procedure, and form
  4. The statutory instrument must not violate certain general norms laid down by judicial decisions.
  5. The statutory instrument must not violate any of the fundamental rights

Legislation as a source of law

Forms of Subordinate Legislation

  1. Colonial: In this form, the power of legislation is derived from the imperial legislation. But in some cases, it has been held that within its delimited field the dominion or colonial legislature is supreme and it possesses even power of delegation. For example, British colonies of other dependencies were given very little power, and most of the lawmaking power resided in the crown
  2. Executive: modern states are having vast complexities and there is growing number of matters coming up every day. It is not possible for the legislature to make laws on every matter and thus they delegate their power to the executive for the formation of detailed and specific laws. It was discussed by the supreme court of India in case of Bajario Agency Pvt. Ltd. Vs Deputy iron and steel controller AIR 1963 Cal 355. Keeton suggested that this type of subordinate legislation has given rise to a vast body of rules known as administrative law.
  3. Judicial: Judiciary makes rules for its own procedure and often make rules for the subordinate judiciary. The constitution of India has conferred the power of rule-making to the supreme court under Article 145 and to High court under article 227 of the constitution. Under article 145 supreme court is empowered to make laws for
    1. rules as to the persons practicing before the Court,
    2. rules as to the procedure for hearing appeals, and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
    3. rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
    4. rules as to the proceedings in the Court under Article 139A;
    5. rules as to the entertainment of appeals under subclause (c) of clause ( 1 ) of Article 134;
    6. any judgment pronounced or order made by the Court may be received and rules as to the conditions the procedure for such review including the time within which applications to the Court for such review are to be entered;
    7. rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceeding therein;
    8. rules as to the granting of bail;
    9. rules as to stay of proceedings;
    10. rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;\
    11. rules as to the procedure for inquiries referred to in clause ( 1 ) of Article 317
  4. Municipal: municipal bodies are given power by various legislations to make bye-laws, for carrying out various activities for them.
  5. Autonomous: law gives power to the certain individual to make rules for themselves. A university may make rules that are necessary for its functioning and binding on its members.

Difference between laws made by parliament and laws made by the court

Parliament makes laws with future references that may happen in future. Parliament has to foresee the potential problems and draft a facilitating remedy of the problem.

On the other hand courts, they sometimes make laws to apply to a dispute that has been brought to them so that they can find a solution. Laws made by the court are more moment centric. Judges are focused to deliver justice.

Legislation and customs

  1. Legislation grows out of the theoretical principles but customary law grows out of practice and long existence.
  2. Existence and authority of legislation is de jure, whereas it is de facto for customs
  3. There is the express authority of will of the state is legislation whereas customs have a general will of people
  4. Legislation results out of deliberation but customs grow within the society in the natural course
  5. The legislation is an advanced method of legal development, in a civilized society legislation is considered as a most important source of law whereas customs were more prominent in primitive society and they have lost their value now.
  6. Legislation deal with state and people on the other hand customs generally deal with the relation between man and man
  7. The legislation is considered to be a more authoritative source of law than customs

Legislation and Precedents

  1. Legislation has its source in the lawmaking will of the state whereas precedents have its source in judicial decisions
  2. It is imposed by legislature while precedents are made by the court
  3. The legislation is by deductive method whereas precedents are created by resort to inductive method.
  4. Legislation has abrogative powers, it can create laws and as well as abrogate the existing laws. On the other hand, precedents are constitutive in nature. Lower courts are bound to follow the decision of higher courts.
  5. Salmond said ‘case law is gold in the mine – a few grains of precious metal to the tons of useless matter- while statute law is the coin of the realm, ready for immediate use. Statute law is definite, brief clear and easily understandable. Thus it makes legislation more superior to precedents.
  6. Legislation denotes formal declaration of law by the legislature whereas precedents are recognition and application of new principles of law by courts in the administration of justice
  7. The legislation comes before a case arrives on the other hand precedents comes after the case has arisen and the court has taken a decision
  8. The legislation is general and comprehensive, precedents are not same.
  9. The main aim of the legislation is to make law, whereas the main aim of the precedents is to apply the law.
  10. The legislation is declared or published before it is brought into force but precedents come into force at once
  11. Legislations are generally perspective unless they choose to be retrospective. A precedent makes the law for that particular act which has already been done thus it is generally retrospective.

Advantages of Legislation

  1. Most reliable source of law
  2. It is rigid and thus applicable irrespective of the crime
  3. Modern states give more importance to legislation
  4. It makes new laws considering the changes in the society
  5. By legislation social control is possible

Disadvantages of legislation

  1. Certain Legislations abridge the rights of individuals and are referred to judicial reviews
  2. It results in amendments to the constitution, which sometimes lead to conflict between legislation and judiciary

Sources of Law

Precedents as Source of Law

Customs as Source of Law

 

Books Referred: Jurisprudence

The legal theory by B.N. Mani Tripathi

Studies in Jurisprudence and Legal theory by Dr. N.V. Paranjape

 

 

 

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