Source
Legislation
Legislation- ‘Legis’ means law and ‘latum’ means making.
Salmond- Legislation is that source of law which consists in the declaration of legal rules by a
competent authority.
Horace Gray - Legislation means the formal utterance of the legislative organs of the society.
John Austin- There can be no law without a legislative act.
Analytical Positivist School of Thought-
This school believes that typical law is a statute
And legislation is the normal source of law making.
The majority of exponents of this school do not approve that the courts also can
formulate law.
They do not admit the claim of customs and traditions as a source of law.
Thus, they regard only legislation as the source of law.
Historical School of Thought-
This group of gentlemen believes that Legislation is the least creative of the sources of
law.
Legislative purpose of any legislation is to give better form and effectuate the customs
and traditions that are spontaneously developed by the people.
Thus, they do not regard legislation as source of law.
KINDS OF LEGISLATION
a) Supreme Legislation-
A Supreme or a Superior Legislation is that which proceeds from the sovereign power of
the state.
It cannot be repealed, annulled or controlled by any other legislative authority.
b) Subordinate Legislation-
It is that which proceeds from any authority other than the sovereign power and is
dependent for its continual existence and validity on some superior authority.
Delegated legislation.
In case of Delegated Legislation, executive frames the provisions of law. This is also
known as executive legislation. The executive makes laws in the form of orders, by laws
etc.
The main purpose of such legislation is to supplant and not to supplement the law.
Control of delegated legislation
Parliamentary control
Judicial control
Precedence of legislation over precedents
1. Abrogation-
By exercising the power to repeal any legislation, the legislature can abrogate any
legislative measure or provision that has become meaningless or ineffective in the
changed circumstances. Legislature can repeal a law with ease.
However, this is not the situation with courts because the process of litigation is a
necessary as well as time-consuming process.
2. Division of function-
Legislation is advantageous because of division of functions.
Legislature can make a law by gathering all the relevant material and linking it with the
legislative measures that are needed.
In such a process, legislature takes help of the public and opinion of the experts. Thus,
public opinion also gets represented in the legislature.
This cannot be done by the judiciary since Judiciary does not have the resources and the
expertise to gather all the relevant material regarding enforcement of particular
principles.
3. Prospective Nature of Legislation-
Legislations are always prospective in nature.
This is because legislations are made applicable to only those that come into existence
once the said legislation has been enacted.
Thus, once legislation gets enacted, the public can shape its conduct accordingly.
However, Judgments are mostly retrospective.
The legality of any action can be pronounced by the court only when that action has
taken place. Bentham once said that “Do you know how they make it; just as man
makes for his dog. When your dog does something, you want to break him off, you
wait till he does it and beat him and this is how the judge makes law for men”
4. Nature of assignment-
The nature of job and assignment of a legislator is such that he/she is in constant
interaction with all sections of the society.
Thereby, opportunities are available to him correct the failed necessities of time.
Also, the decisions taken by the legislators in the Legislature are collective in nature.
This is not so in the case of Judiciary. Sometimes, judgments are based on bias and
prejudices of the judge who is passing the judgment thereby making it uncertain.
5. Form-
Enacted Legislation is an abstract proposition with necessary exceptions and
explanations
Whereas Judicial Pronouncements are usually circumscribed by the facts of a particular
case for which the judgment has been passed.
Critics say that when a Judge gives Judgment, he makes elephantiasis of law.
Difference between Legislation and Customary Law
1. Legislation has its source in theory whereas customary law grows out of practice.
2. The existence of Legislation is essentially de Jure whereas existence of customary law is
essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary law
is the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.
5. Legislation expresses relationship between man and state whereas customary law
expresses relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the outcome
of necessity, utility and imitation.
