Legislation As A Source Of Law

Introduction

The term “legislation” refers to the act of making laws. “Legis” means law, and “Latum” means making, hence it implies lawmaking. Legislation is the way of making laws in which the competent authority is responsible for drafting and enacting laws in a specific state. It is also stated to be a rigorous concept of lawmaking because there is only one body charged with the task of lawmaking, and there is little space for any changes because the laws are codified and airtight, leaving a very small range of adjustment.

In a broader sense, it refers to all sources of law, as well as every act that has the impact of adding to or changing the law. It is possible to say that a judge has exercised legislative power and that the judicial decision is also legislation when he establishes a new principle in a judicial decision. In all countries, it creates new laws, adjusts existing laws, and repeals existing laws.

The main reason behind the legislation is regarded as an important source of law i.e., the legal rule enshrined by the legislature was recognized by the State as law and legislation have the authority and force over the State. That’s the reason, Dias said that deliberate law-making by an authoritative power, i.e., the State is called the Legislation provided that authority is duly recognized as the Supreme power by the Courts.

Definition of Legislation

According to Bentham and John Stuart Mill, “Legislation comprises both the legislative process and the law that emerges from it.” However, the term “legislation” refers to a specific form of lawmaking, namely the declaration of legal regulations in statutory form by a competent authority. It refers to the state legislature’s act of enacting legislation.

Gray said, “Legislation includes formal utterance of the legislative organs of the society.”

E. Holland observed that “Legislation is the making of general orders by our Judges is as true legislation as carried on by the Crown.”

Blackstone pointed out that “the law has its source in legislation which may be most accurately termed as enacted laws and all other forms of law may be distinguished as unenacted laws.”

According to Austin, “Legislation includes activities which result into law making or amending, transforming or inserting new provisions in the existing law. Thus, there can be no law without a legislative Act.”

Salmond observed that “Legislation is the source of law which consists in the declaration of legal rules by a competent authority.”

According to him legislation as a source of law can be used in three different senses, such as:

1st Sense or Strict sense: Legislation is the source from where the rules of law declared by competent authority are framed;

2nd Sense or Widest sense: Legislation includes all methods of law-making either be direct or indirect.

3rd Sense: legislation includes every expression of the will of the legislature whether making law or not.

Kinds of Legislation

Legislation can serve a variety of purposes, including directing, approving, endorsing, granting, authorizing, allowing, proclaiming, confining, and annulling. As a result, the welfare of citizens must be considered when establishing any legislation or the rule of law, and it must be implemented in the citizens’ best interests.

The following are a few types of legislation:

1. Supreme Legislation

The supreme legislation is enacted by the state’s sovereign power. As a result, no other authority within the state can control or check it in any way. It is regarded not just as superior, but also as having legal omnipotence. Dicey’s work, “The Law of the Constitution,” is a famous explication of this notion. Its power is unrestricted by the law. In India, the legislature is also supreme. Though its power is limited by the constitution, it is not subject to any other legislative authority inside the state. No other legislative authority has the power to repeal, invalidate, or control it.

2. Subordinate Legislation

Subordinate legislation is legislation enacted by a body other than the state’s Supreme Authority. It is enacted within the authority of the Supreme Authority. The Supreme Expert is responsible for the authenticity, legitimacy, and continuation of such law. It can be revoked and canceled at any time by the sovereign authority, hence it must provide a framework for sovereign legislation. The control of subordinate legislation is subject to parliamentary oversight. There are five distinct types of subordinate legislation. The following types are:

i. Colonial Legislation

Countries that are not autonomous and are under the control of another state do not have a Supreme Court. These countries are classified as colonies, dominions, protected or trust areas, and so on. Their laws are subject to the Supreme Legislation of the state over which they have control. As a result, it is secondary legislation. The United Kingdom has a large number of colonies and dominions. The laws they pass for self-government are subject to change, repeal, or supersession by British Parliament legislation.

We may not have this type of subordinate legislation soon, as the colonies are rapidly gaining independence and practically all British dominions have unfettered legislative power.

ii. Executive Legislation

Executive legislation is created when legislative powers are given to an executive by an authorized official. Even though the official’s primary responsibility is to carry out the laws and maintain the organization, he or she is constantly reliant on subordinate enactment powers. Today’s laws contain assignment statements that delegate law-making authority from the office to the executive to improve statutory arrangements.

iii. Judicial Legislation

The judicial system has been given the authority to establish and apply its laws to protect the country’s judicial system’s transparency. This will also ensure that no other government organ is involved in the administration of the state’s judicial system.

iv. Municipal Legislation

Municipalities are given the authority to enact bylaws governing their immediate surroundings. A neighborhood body’s legislation governs its territory. Municipal corporations, Municipal Boards, Zila Parishads, and other Indian municipal bodies are examples. There is a push to give Panchayats more power. Along these lines, there is a chance that this type of subordinate enactment will be expanded in our country. The 73rd Amendment later included the proposals in the Constitution. The Municipal Legislation was made for the purpose such as water tax, land urban cess, property tax, town planning, public health, and sanitation, etc.

v. Autonomous Legislation

The law created by the last is known as the autonomous law, and the body is known as a self-ruling body when the Supreme authority grants powers to a group of individuals to administrate on problems that are important to them as a group. A railway is a separate entity from the rest of the transportation system. It establishes bye-laws to govern its operations, among other things. A college is a self-governing organization as well. Some Indian universities have even been given autonomy.

3. Delegated Legislation:

Delegated legislation is legislation enacted by a body or person other than the Sovereign in Parliament, based on the sovereign’s powers provided under the statute.

The term “delegated legislation” has a basic definition: “When the legislature entrusts the function of legislation to organs other than the legislature, the law created by such organs is referred to as delegated legislation.” Where Acts are enacted by Parliament, a Primary Act may be responsible for the formation of Subsidiary Legislation and will specify who is authorized to make laws under that Act. Delegated legislation can only occur in the context of empowering or parent legislation.

The numerous regulatory complexities required to ensure that the Act’s arrangements work properly are contained in delegated legislation. Government departments, local governments, and courts may all be involved.

The most commonly recognized types of Delegated Legislation are Guidelines and Statutory Rules. They are decisions made by the Executive or a Minister that have a broad public impact. A Local Government Authority makes By-laws and, on rare occasions, Ordinances that affect the entire community. If there is a problem in a delegated law, the Principle and Parent Act frequently depicts the approach to be used in Court.

Sub- delegation– In the Indian legal system, there is also a case of sub-delegation. The authority to enact subordinate legislation is drawn from an enabling act that already exists. It is critical that the delegate to whom such authority is delegated acts within the bounds of the enabling statute. Its goal is to replace rather than supplement the law. Its fundamental rationale is that legislators do not always anticipate the issues that may arise when enacting legislation.

As a result, Delegated Legislation fills in the gaps that aren’t visible during the enabling act’s drafting. Delegated Legislation affords legal flexibility, and there is plenty of room for amendment based on lessons learned during its implementation.

Legislation as a Source of law- Historical and Analytical School

1. Thoughts of Analytical Positivist School

Jurists of this School lay stress on legislation as a source of law. They believe that the only way to make law is through legislation. They are vehemently opposed to judges having the power to enact laws. They also claim that customs are just sources of law, not the law itself.

2. Thoughts of Historical School

This school’s jurists were indifferent about legislation. They believe that making laws through legislative action is impossible. Legislators’ sole purpose is to collect customs and offer them a better form.

Advantages and Disadvantages of Legislation as Source of Law

Some of the Advantages of Legislation as Source of Law are:

1. Abrogative Power – It has the authority to amend or repeal existing laws that are not under the control of several sources. Also, Legislation has both a constitutive and an abrogative function.

2. Effectiveness – Legislation allows for a more efficient division of labor by separating the two functions of making and enforcing the law. As a result, efficiency improves.

3. Declaration – It establishes that legal concepts will be known before they are enacted. Justice requires that laws be known before they are implemented and enforced by the courts, yet the ease legislation operates retrospectively, applying to facts that occurred before the law was enacted. In its application, statute law is rarely retrospective.

Then legislation passes the test of a court of justice’s interpretation of the statute. If any changes to the adopted law are suggested, they are disclosed and public input is sought.

4. Reliance on Unintentional Legislation – Because the legislation is self-contained and emerges as the authoritative source of law, it does not have to withstand scrutiny until the initial case of legislation.

5. Incomparable in Form – Legislation is superior in form because it is brief, clear, easily accessible, and understandable, whereas valuable case law must be extracted from a mountain of dross. Before the ratio is decided or case law can be discovered, one must read the entire judgment. As Salmond puts it, ease law is “gold in the mine,” a few grams of precious metal for every tonne of useless material, whereas statute law is “coin of the realm,” ready for immediate use.

6. Provision for future cases – Legislation can make rules for cases that have not yet occurred. As soon as a defect is brought to the legislature’s attention, it can fill a vacancy or settle a dispute in the legal system.

Some of the Disadvantages of Legislation as a Source of Law:

There is no source of law that is perfect and completely complete in its form and sense; every source of law has some flaws and gaps, which are as follows in the case of legislation.

1. Rigid and inflexible – The law in the legislation is rigid and is inflexible and un-adaptive. Therefore, in extreme cases, injustice occurred with the victims.

2. In light of Hypothesis – Legislation, for the most part, is based on speculative certainty, taking into account the current environment and surroundings, in which established law is frequently observed to be blemished in its application to the perplexing issues that arise in real life through piecemeal solutions arising from commonsense exigencies and convenience.

3. Lack of clarity – It is commonly stated that statute laws are frequently drafted in ambiguous language, with numerous loopholes. It opens the door to a plethora of possible interpretations. There are numerous errors and omissions made while connecting the law, which makes little sense to the average person.

4. Lack of judicial discretion – The judge must implement the law in its current form and adhere to it. The law is applied as written. Other aspects such as social, economic, and other circumstances must also be considered by the judge while resolving the case, but this aspect was not found in written form anywhere, due to which it may be found difficult for the judges to pronounce the judgment as the law written and ignoring the merit of the case and other aspects of the case.

5. Arises conflict – Individual rights are abridged by some legislation, which is subjected to Judicial Review. For example, Citizenship Amendment Act, 2020, Farms Act, 2020 was reviewed by the Judiciary.

The abridged form of legislation leads to a constitutional amendment and it may arisea disagreement between the legislative and the judiciary.

Conclusion

In conclusion, we can say that legislation is a very important source of law in the modern era. In comparison to other legal sources, it appears to be more authoritative. To facilitate understanding, legislation has been further classified into several types. In terms of delegated legislation, it has become a requirement for modern society.

In today’s globe, most countries see the legislation as an important source of law and adhere to this legal system. Although there are some flaws and loopholes in the current form, the challenges faced are far less than those faced by other sources of law, such as custom and precedent, because legislation as a source of law strives to create uniformity by minimizing ambiguity.

References

  • https://blog.ipleaders.in/legislation-source-law/
  • https://legislative.gov.in/
  • https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4249
  • https://www.legalbites.in/law-notes-administrative-law-comparison-legislation-precedent-case-laws/
  • https://www.legalserviceindia.com/legal/article-4045-nature-sources-and-schools-of-law-under-jurisprudence.html
  • https://envirementalb.com/legislation-kinds-of-legislation/

Books Referred

N.V. Paranjape, Studies in Jurisprudence & Legal Theory (9th ed. 2019).

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Aditi Sahu

I am Aditi Sahu pursuing a B.B.A.LL.B. IV Year from Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith. My career objective is to work in a learning and challenging environment, utilizing my skills and knowledge to the best of my abilities and contribute positively to my personal growth. Also, I am pursuing a Diploma in Business Law for in House Counsel as extracurricular activities.