Legislation as a source of Law
In order to understand what law is, it is very important to know how law came to be or what the sources which constituted law are. The word ‘Source’ means ‘Origin’. Many jurists have given different opinion regarding ‘origin of law’. Some says it originated from the sovereign, some are of the view that there are several heterogeneous factors which constituted as a source and some are of the view that they have divine origin.
Customs, Precedents and Legislation are some of the important source of law. In this article Legislation will be discussed in detail.
- Precedent as a Source of Law
- Custom as a source of law
- Sources of Muslim law
- Sources of Hindu law : Ancient and Modern Sources
Meaning of Legislation
The word legislation means ‘making of law’. In more technical terms it can be defined as Promulgation of legal rules by an authority which has the power to do so. Sometimes it may also include law made by any source i.e. Precedent, custom, convention law etc. even in some situation every expression of the will of a legislature is termed under legislation.
When the term ‘legislation’ is used as a source of law it means law made by defined body or person. It does not include Customary or conventional law or judicial decisions.
Legislation and Custom
- The authority of legislation in de jure whereas of custom is de facto.
- Legislation is based on the express will of the state whereas customs are will of the people.
- Legislation is advanced method of legal development on the other hand customs have their origin in mainly primitive society,
- Customs deal with the relationship between man and man whereas state comes in the scenery as far as legislation is concerned.
- In modern times, legislation seems to be more authoritative than Customs.
Legislation and Precedent
- In Precedents, principles are laid down by inductive method whereas as in legislation deductive method can also be used.
- Precedent is only constitutive in nature whereas legislation has abrogative power too.
- Legislation is general and comprehensive whereas Precedent lacks all these pros.
- The emergence of Precedent depends on litigation whereas statute has the ability to make rules for future case.
- The basic of legislation is to make laws whereas precedent is to interpret them.
Salmond says. “Case law is gold in the mine- a few grains of the precious metal to the tons of useless matter- while statute law is coin of the realm ready for immediate use.”
Analytical Positivist School of thought
Jurists of this School greatly emphasize on legislation as a source of law. According to them law can only be made through legislation. They highly disapprove that Judges can also make laws. They also say that customs are not law but are only sources of law.
Historical School of thought
Jurists from this school lay no importance to legislation. They are of the view that it is not possible to make laws by legislative action. The only function of legislators is to collect customs and give a better form to them.
Types of Legislation
Legislation has been divided into two types i.e. Supreme and Subordinate Legislation. Then Sub ordinate legislation has been further divided into some types, all are discussed herein detail:
Supreme Legislation refers to legislation which has been made by the sovereign power of the state. No authority in the state can exercise control or check it. In Britain parliament is supreme and is above all. There is no legal limitation upon its power. Indian Parliament is also supreme but has several constitutional restrictions on it. Although, it is not subjected to any other legislative authority in the State.
Subordinate legislation refers to that legislation which has been made by any authority other than the supreme authority in the state. This legislation owes its existence, validity and continuance on the mercy of Supreme authority. This subordinate legislation has been divided into the following classes:
- Autonomous Law: When a supreme authority grants power a group of Individual to make laws on the matter conferred to them as a group, so here the law made by the group is called autonomous law. For example, University rules and guidelines, Railway bye laws and many more.
- Judicial Laws: Judiciary has been given power to make rules for the regulation of its procedure. Just like in India Supreme Court and High Court has been empowered to make rules for their procedure and administration.
- Local Laws: There are certain situations where local bodies are entrusted with the power to make by laws to tackle local matters. These laws operate within the respective locality. In India local bodies like Municipal Corporation, Municipal Boards, Zila Parishads, Panchayat etc are provided with a power to do so.
- Colonial Law: When a country is not an independent unit and is under the control of some other Country. They are called colonies, dominions etc. The laws made by them are subjected to the supreme legislation of the state under whose control they are. These laws are called colonial law.
- Executive made law: As we know that there are three organs of the government i.e. legislative, executive and judiciary. They all have their own functions to be performed. Executive is required to implement the laws, in addition to this function it also does some law making and laws made by the executive are called as executive made laws. This kind of subordinate legislation is called ‘delegated legislation’.
Delegated Legislation means the law made by the executive under the powers delegated to it by the supreme legislative authority. There are certain reasons which led to emergence of Delegated Legislation such as lack of time, Emergency, Flexibility, Experimentation, Local matters and many others.
This Delegated Legislation has been criticized by numerous jurists but is still in the operation because of its utmost necessity. In our entire constitution we do not come through the word Delegated Legislation. But we can have a close look in the article 312 of the Constitution which empowers Rajya Sabha to establish a new branch of all India services if passed with two-third majority. In our Homeland Delegation of Power is controlled by Parliament and Judiciary. Judicial control over delegated legislation is more effective than the parliamentary one. The principle and the power of delegation are clearly defined in India. There are effective checks and balance against the abuse of that power.
Conclusively we can say that Legislation is a very important source of law as far as modern time period is concerned. In comparison with the other sources of law it seems more authoritative. Legislation has been further divided into several types for better understanding. As far as delegated legislation has been concerned it has become a need for modern day society.
Author: Dheeraj Diwakar,
Dr. Ram Manohar Lohia National Law University, Lucknow 1st year