Q. LEGISLATION as a source of law.
Kinds of legislation, permissible and non-permissible legislation
(2018,2028s)
1. INTRODUCTION:
Legislation means the making or setting of law. In wider sense the term Legislation is used to include all the
methods of law-making but in a restricted sense, it includes every expression of the legislation whether the same
is directed to the making of law or not. The law that has its source in legislation is called enacted law, statute law
or written law
2. DERIVATION:
The term "Legislation" is derived from Latin word "Legis”means "Law" and "Latum" means "To make" "put or
set hence legislation means the making or the setting of law.
3. MEANING OF LEGISLATION:
According to Oxford Dictionary of Law:
"The whole or any part of a country's written law. The process of making written law.
Legislation means, "To exercise the power and function of making laws and other rules binding on those for
whom they are made."
SOME EXAMPLES OF LEGISLATION.
PPC (1860) and CPC (1908)
DEFINITIONS OF LEGISLATION:
Salmond's Definition:
"Legislation is that source of law which consists in the declaration of legal rules by a competent authority."
Austin's Definition:
"There can be no law without a legislative act.
(iii) Gray's Definition:
"Legislation is the formal utterances of the legislative organs of the society."
(iv) Holland's Definition:
"In legislation, both the contents of the rules are devised and legal force is given to it by acts of the Sovereign
power which produce written law."
According to Black's Law Dictionary:
The process of making or enacting a positive law in written form according to some type of formal Procedure, by
a branch of government constituted to perform this process.
(vi) According To Merriam Webster Dictionary
"The action of legislating specifically, the exercise of the power and function of making rules (as laws) that have
the force of authority by virtue their promulgation by an official organ of a state or other organization,
First use; 1644
6. LEGISLATION AS SOURCE OF LAW.
Legislation as source of law may be discussed by analysis the following approach.
(a) Analytical Approach
The view of this school is that typical law is a statute and legislation is the normal process of law making. They
neither approve of the usurpation of the legislative functions by the judiciary, nor considered custom as a source
of law.
Criticism: The mistake of analytical school is that it regards the legislation as a sole source of law and does not
attach any importance to the custom and precedent
(b) Historical Approach.
The view of historical school is that legislation is the least Creative of law. It has no independent creative role at
all. Its only legitimate purpose is to give better from and made more effective the custom
Criticism: The mistake of historical school is that it does not regard legislation as source of law.
KINDS OF LEGISLATION/SALMOND'S CLASSI-FICATION:
Supreme Legislation:
According to Black's Law Dictionary.
"Legislation that derives directly from the supreme or sovereign power in a state and therefore capable of being
repealed, annulled, or controlled by any other legislative authority."
Explanation: Legislation which proceeds from the supreme sovereign power in the state is supreme legislation.
It is expression of legislative will of a supreme legislative authority, which cannot be repealed by any other
legislative body. National assembly of Pakistan, Congress of China and America, British parliament area true
sovereign law-making bodies because there is not external restraint on their absolute authority.
Sub-ordinate Legislation:
According to Black's Law Dictionary
"Legislation that derives from any authority other than the sovereign power in a state and that therefore depends
for its continued existence and validity on some superior of supreme authority.
Case Law: Hukam Chand vs Union of India.
Held: It was held that a sovereign legislature has power to enact laws and a subordinate legislation has to act
within the limit of powers delegated to it.
Explanation: Subordinate legislation is that legislation which proceeds from any authority other than sovereign
power and is dependent for its continued existence and validity on some superior or supreme authority its law
made by subordinate legislature or legislative authority with in the power delegated to its as it is subject to the
repealing a sanctioning control of a superior legislature, and thus, sub-ordinate legislative authority is inferior to
sovereign exercising delegated power to make law.
For example, Legislation of the imperial parliament in England is supreme, but all other forms of legislative action
recognized by the law of England, are sub-ordinate legislation
KINDS OF SUB-ORDINATE LEGISLATION:
Following are the five kinds of sub-ordinate legislation
1. Colonial Legislation:
The powers of self-government entrusted to the colonies and other dependencies of the crown are subject to the
control of the imperial legislature which may repeal, supersede or alter any colonial enactment.
2. Judicial Legislation:
In certain cases, legislative powers have also been given to the Judiciary for the regulation of their own procedure.
It is true form of legislation although it cannot create new laws by way of precedents e.g. High Courts Rules.
(iii) Municipal Legislation:
Municipal authorities are also allowed to make by laws for limited purposes for the area under their administration
for example, WAPDA, WASA, LDA, Hotels &restaurants etc.
(iv) Autonomous Legislation:
Sometimes the state allows private person like railway companies, limited companies, universities, etc. to make
by laws which are recognized and enforced by law courts under the force of some statute For example, Railway
Company may make by laws for the regulation of its understanding. Likewise a university may make statutes for
the government of its members.
(v) Executive / Delegated Legislation:
Such laws as are made by the executive in order to conduct the administrative department of state are called
executive or delegated legislation. For example, Health departments, Education etc. are empowered to make laws
for internal affairs.
FORMS OF LEGISLATION:
There are two forms of legislation:
(a) Direct Legislation: Framing of laws by the legislature is direct legislation. For example colonial legislation
isa type of direct legislation.
(b) Indirect Legislation:
When legal principles are declared by some other sources to which law-making power is confided by legislature,
is known Example, all forms of subordinate legislation except colonial legislation are examples of indirect
legislation.
9. CONTROL ON DELEGATED LEGISLATION:
Following are the ways to control the delegated legislation;
(a) Parliamentary Control:
Parliament always has general control when bill before parliament, it can amend, modify or refuse altogether the
powers which the bill proposes to confer on a minister or some other subordinate authority.
(b) Parliamentary Supervision:
Laws made under delegated legislation should be lain before the legislature for approval and the legislature may
repeal or amend those laws if necessary
(C) Trust worthy Body:
An internal control of delegated legislation can be ensured if the lawmaking power is delegated to only a
Trustworthy person or body of person.
(d) Expert's Opinion:
In technical matters, opinions of the experts should be taken that will minimize the danger of vague legislation
(e) Judicial Control:
The control of courts in indirect, courts cannot annual subordinate enactments, but they can declare them
inapplicable in particular circumstances.
(f) Publicity:
Public opinion can be a good check on the arbitrary exercise of delegated law-making powers. Public opinions
can be enlightened by publicity of delegated laws
10. MERITS/ADVANTAGES OF LEGISLATION:
Legislation enjoys a great superiority all over other methods of legal evolution this trend is due to the following
merits/ advantages of legislation:
Cannot be repealed except by Supreme Court:
Legislation is imposed on courts by legislature. It cannot be repealed except by Supreme Court.
It gives Statues:
Legislation creates statute law and it is easy to interpret a statute than to interpret to precedent
It is Constitutive and Abrogative:
Legislation is constitutive and abrogative. It is only source of new law but also the most effective
Instrument of abolishing the existing law
(iv) Bring Efficiency in System:
Legislation is based on the principle of division of labor and consequently enjoys the advantages of efficiency
(v) Formal and Express Declaration of new Rules:
Legislation is formal and expresses the declaration of new rules by legislature
(vi) Satisfies the Requirement of Natural Justice:
Legislation satisfies the requirement of natural justice that laws shall be known before they are enforced
(vii) Rules for Future Litigation:
Legislation can be way of anticipation make rules for future litigation that have not origin yet
(viii) Reduces Vagueness in Law:
Legislation is expressed clear and unambiguous in general and comprehensive form. Thus, it reduces
Vaguenessin law.
(ix) Clear, Brief & Accessible:
Statue law is clear brief and easily accessible and known able as the rules are logically arranged so they can be
easily discovered. It is said to be the "coin of the realm ready for immediate use.
(x) Generally Prospective:
Legislation is generally prospective
(xi) Legislative is not restricted:
In formulating a new rule or in applying a rule new or old, the judge is bound by rule and precedent while no such
restriction is imposed on the legislature when it makes the law.
(xii) It brings uniformity in Territory:
Legislation expresses a relationship between man and state so it brings uniformity in territory
(xiii) It enables Planned Development:
Aim of law is the progress and protection of society and individual for future planned progress, legislation is
necessary
xiv) More Authorities:
Statute law is embodied in an authorities form written words and this literary expression essential part of law
itself
(xv) Certain Definitions are given:
Legislation is the result of a deliberate process so de cut definitions are given in it which creates certainty
(xvi) Power of Self-Criticism & Self Revision:
There may be omission which has to be made good or doubt to be settled or a defect cured All this may settled by
legislature in no time for it possesses a power of self-criticism and self-revision. Legislation can repeal today
what it enacted yesterday
DEMERITS/DISADVANTAGES OF LEGISLATION:
(1) Subject to Bias and Partiality:
Always politicians are swayed by popular passions and are liable to make bad laws.
Thus, legislation may be biased and partial,
Statutes are not Exhaustive:
The statutes are brief they do not cover all the required aspects of a case
Lacks Retroactive Effect:
Legislation lacks retroactive effect as it is prospective in nature so the legal results
of acts already done cannot bealtered
(iv) Numerous and Complicate Statutes:
Modern statutes are so numerous and so complicate that an ordinary layman has often
little idea of his legal dutiesuntil he has broken them.
Every Statute is not Self-Sufficient:
Sometimes the statutes are so drafted as to simply the law but usually important
statutes require elaborate editingwith copious references to cases as soon as they
are enacted
(vi) Rigid:
Statute law suffers from the defect of rigidity: Courts are bound by the letter of law
and are not allowed ignore the same
Upsets the Settled Expectations:
Where statutes are not made retrospective, their passing any upset the settled expectations
CONCLUSION:
Legislation is more powerful and most recent source of law. Wider sense it includes all
methods of law making
According to Dicey:
"Legislation is necessary instrument for the growth and reformation of law."
Therefore, it is final stage in the development of law-making expedients.
Legislation is the process of making or enacting assistive law in written form,
according to some type of former procedure by a branch of government constituted
to perform thickness.
