Sources of
Law:
LEGISLATION
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LEGISLATION
The term ‘legislation’ is derived from two Latin words,
legis meaning law and latum meaning to make, put or
set. Etymologically, legislation means the making or the
setting of law.
Salmond: “Legislation is that source of law which
consists in the declaration of legal rules by a competent
authority.”
Gray: “The formal utterances of the legislative organs of
the society.”
Holland: “The making of general orders by our judges is
as true legislation as is carried on by the Crown.”
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Austin: “There can be no law without a
legislative act.”
The term legislation is sometimes used in a wider
sense to include all methods of law-making. When a
judge establishes a new principle by means of a
judicial decision, he may be said to exercise legislative
powers and not judicial powers. However, this is not
legislation in the strict sense of the term. The term
legislation includes every expression of the legislature
whether the same is directed to the making of law or
not.
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Legislation as a source of law
Analytical view:
The typical law is a statute and legislation is the
normal process of law-making.
No approval of legislative functions by the judiciary.
Do not admit the claim of custom to be considered as
a source of law.
Historical view:
The legislation is the least creative of the sources of
law.
Legislation has no independent creative role at all.
Its only legitimate purpose is to give better form and
make more effective the custom spontaneously
developed by the people.
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Both the analytical school and the historical
school go to extremes.
The mistake made by the analytical school is
that it regards legislation as the sole source of
law and does not attach any importance to
custom and precedent.
The mistake of the historical school is that it
does not regard legislation as a source of new
law.
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Supreme and Subordinate legislation
According to Salmond, legislation is either
supreme or subordinate.
Supreme: which proceeds from the sovereign power
in the State. It cannot be repealed, annulled or controlled
by any other legislative authority.
Subordinate: which proceeds from any authority
other than the sovereign power. It is dependant for its
continued existence and validity on superior authority.
The parliament of Bangladesh possesses the power of
supreme legislation. However, there are organs which have
powers of subordinate legislation.
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Kinds of Delegated legislation
1. Colonial legislation
2. Executive legislation
3. Judicial legislation
4. Municipal legislation
5. Autonomous legislation
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Growth of Delegated legislation
i. Conception of Welfare State
ii. Laws of technical nature
iii. Meeting unforeseen contingencies
iv. Flexibility and Expediency
v. To meet emergency causes
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Validity of Delegated legislation
Conditions of validity of subordinate
legislation:
i. The Parent Act i.e., the Act under which
the power to make subordinate legislation
is exercised, must be valid.
ii. The delegation clause in the parent Act
must be valid.
iii. The statutory instrument so made, must be
in conformity with the delegation clause in
point of (a) procedure, and (b) form.
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iv. The statutory instrument must not
violate certain general norms laid down
by judicial decisions e.g. norms regarding
ouster of court jurisdiction, imposing a
penalty or tax, giving retrospective effect
etc.
i. The statutory instrument must not violate
any of the fundamental rights guaranteed
by the Constitution or any other provision
of the Constitution.
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Control of Delegated legislation
1.Procedural Control
2.Parliamentary Control
3.Judicial Control
Legislation and other sources of law
Legislation and Precedent
i. Legislation has its source in the law-making will
of the State whereas precedent has its source in
judicial decisions.
ii. Legislation is imposed on courts by the
legislature but precedents are created by the
courts themselves.
iii. Legislation denotes formal declaration of law by
the legislatures whereas precedents are
recognition and application of new principles of
law by courts in the administration of justice.
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iv. Legislation is enacted before a case is actually arises
but the precedent comes into existence only after the
case has arisen and taken for decision before the
court.
v. Legislation is expressed in comprehensive form but
the scope of judicial precedent is limited to similar
cases only.
vi. Legislation is generally prospective whereas
precedent is retrospective in nature.
vii. Legislation is declared or published before it is
brought into force but precedent comes into force at
once, i.e., as soon as decision is pronounced.
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viii. Legislation is undertaken with the intention of
law-making but it is not so in the case of precedent.
The precedent which includes ratio decidendi and
obiter dicta is intended to settle a specific dispute
on the point of law once for all.
ix. It is not difficult for the public to know the law
enacted by legislature but the precedent based on
case law is not easily known to the general public.
At times even the lawyers who deal with the law
are ignorant about the existence of a particular
ruling of the Court.
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Legislation and Custom
Legislation as a source of law differs from custom in
the following aspects:-
i. The existence of legislation is essentially de jure
whereas customary law exists de facto.
ii. Legislation grows out of the theoretical principles but
customary law grows out of practice and long existence.
iii. Legislation as a source is historically much better as
compared with custom which is the oldest form of law.
iv. Legislation is an essential characteristic of modern
society whereas the customary law has developed
through primitive societies.
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v. Legislation is complete, precise, written in form and
easily accessible. Whereas customary law is mostly
unwritten ( jus non scriptu) and is difficult to trace.
vi. Legislation results out of deliberations but custom
grows within the society in natural course.
vii. Legislation expresses the relationship between
men and the state but customary law is based on
relationship between men inter se.
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Codification
“Code is a systematic collection of statutes,
body of laws, so arranged as to avoid
inconsistency and overlapping.” (Oxford
Dictionary)
It’s the systematic process and reduction of
the whole body of law into a code in the form
of enacted law.
It implies collection, compilation,
methodological arrangement, systemization
and reduction to coherent form the whole
body of law on any particular branch of it so
as to present it in the form of a systematic, clear
and precise statement of general principles and
rules.
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Conditions for Codification
Roscoe Pound conditions for
Codification:
i. Juristic development of existing
legal materials;
ii. Uncertainty and archaic character of
existing law;
iii. Development of an efficient organ
of legislation;
iv. Needs of one uniform law
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Kinds of Codification
i. Creative code
ii. Consolidating code
iii.Creative and Consolidating
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Merits of Codification
i. Certainty
ii. Simplicity
iii. Logical arrangement
iv. Stability
v. Planned development
vi. Unity
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Demerits of Codification
i. Rigidity
ii. Incompleteness
iii.Hardship
iv.Defective codes
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Thank You
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