Legislation as a Source of Law
Legislation is the source of law which consists in the declaration of legal rules by a competent authority. 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. It is such a declaration of principles as constitutes, legal ground for their recognition as law: for the future by the tribunals of the state.
Legislation is regarded as the most important source of law in the prevalent times. Hence it is considered to be the codified form of law which is commanded by the sovereign to the common masses, and it becomes a predicament situation to regard legislation as the authoritative source of law.
Legislation is one of the foremost and most important source of law in today’s world. Most countries in today’s world regard legislation as an essential source of law and follow this system of lawmaking. Although some loopholes are there which exists in the present form but then too the difficulties such faced are relatively less than that faced from the other sources of law by custom and precedent as legislation as a source of law tries to bring uniformity by avoiding the ambiguity.
What is legislation?
Meaning of Legislation: – Legislation means the process of lawmaking. Legis means law and Latum mean “making”, and as a whole it means lawmaking. According to Austin, it means the making of law by a supreme or a sovereign authority which must be followed by people of every stratum of the society. Salmond defines Legislation as the process of lawmaking by a competent and able authority.
Legislation is the process of lawmaking where a competent authority is given the task of drafting and enacting the law in a state. It is also said to be a strict concept of lawmaking because there is only one body which is entrusted with the work of lawmaking and also there is no scope of any alteration as such because of codified and watertight laws which leave a very minuscule range of the amendment.
Different sources have different legislative definitions. There are three lists into which the legislative powers are divided. State List, Union List and Concurrent List. While statutory law is the basic framework of law which is required by the modern legal system. In addition, subordinate legislation and supreme law are two types of legislature.
Definition of legislation by various Jurists
According to Salmond: – “Legislation is that source of law which comprises in the assertion of lawful standards by a competent specialist.”
According To Austin: – “Legislation is the command of the sovereign or the superior authority which must be followed by the common masses backed by sanctions.”
According to Gray: – “Legislation implies the formal expression of the administrative organs of the general public.”
According to Positivist School: – “A run of the mill law is a rule and legislation is the typical source and form of lawmaking.” Most examples of this school don’t affirm that the courts additionally can figure law. They don’t concede the case of custom as a wellspring of law. Consequently, they view just legislation as the form of law.
According to Historical School: – “The legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to give the better framework and increasingly viable the custom which is unexpectedly created by the general population.”
The state’s legislative powers is defined in three separate lists: –
- State list: – This list contains 59 (Originally 66) items which is given in the Seventh Schedule of the Constitution of India. The governments of states have exclusive power to legislate on matters relating to items mentioned in the list.
- Union list: – This list contains 98 (Originally 97) items which is given in the Seventh Schedule of the Indian Constitution. The Central Government or the Parliament of India has the exclusive power to legislate on matters related to these items.
- Concurrent list: – The list currently consists of 52 (originally 47) items. This includes items that are under the joint domain of the Union as well as the respective states.
What are the types of legislation?
Legislation can have numerous reasons, for instance, to direct, to approve, to endorse, to give, to authorise, to allow, to proclaim, to confine and to annul. Therefore in enacting any legislation and the rule of law, the welfare of the citizens must be kept in mind and therefore, it is must be adopted in the best interests of the citizens.
Some different types of legislation are as follows: –
- Supreme Legislation: – The Supreme legislation is the legislation embraced by the sovereign force of the state. As such, some different parts which are the organ of the state can’t handle or check it. It is viewed as exceptional just as legally ground-breaking. There is no real limitation on its purview. Indian parliament is similarly transcendent. Despite the fact that there are distinctive established revisions upon its purview, it isn’t dependent upon some other personnel inside the state. Along these lines, the sovereign locale of the state can’t be disavowed, dropped, or compelled by some other legitimate organ of the state.
- In regards to all the matters relating to the legislature, executive, and judiciary, the constitution of India is considered the supreme authority. Also, supreme legislation is that legislation that draws its power right from the constitution. Thus, it cannot be challenged under any legislative power.
- In the Indian legal system, ordinances, acts of parliament, laws made by the governors and president are in the limits of their authority. This authority is given by the constitution as a part of supreme legislation. So, in India, the authority is possessed by the parliament.
- Subordinate Legislation: – Any other legislation that is lower in authority than the supreme legislation is called subordinate legislation. Also, it derives its power from any authority besides the sovereign power. The legislation created by the authorities like municipalities universities, and corporations that are under the authority of supreme legislation are also part of subordinate legislation. It is made under the forces assigned by the Supreme power. Such legislation owes its existence, authenticity, and continuation to the supreme master. Subordinate legislation is obligated to parliamentary control. Sub categories or example of subordinate legislations can be: – Colonial Legislation, Executive Legislation, Judicial Legislation, Municipal Legislation, Autonomous Legislation.
- 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.
- 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.
- 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.
- 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.
- 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.
- Delegated Legislation: – ‘Delegation’ can be defined as a demonstration of entrusting an individual with the force or enabling him to follow up for that individual who has given him that power or to go about as his representative or delegate. ‘Delegated legislation’ signifies the practicing of administrative force by a specialist who is lower in position to the Legislature, or who is subordinate to the Legislature. ‘Delegated legislation’, moreover insinuated as helper legislation, is a sanctioning made by an individual or body other than Parliament. Parliament, through an Act of Parliament, can permit another person or someone to make sanctioning. An Act of Parliament makes the arrangement of a particular or specific law and will in general contain a diagram of the motivation behind the Act. By assigning the legislation by Parliament to the Executive or any subordinate, it enables various individuals or bodies to incorporate more subtleties to an Act of Parliament. Parliament thusly, through basic authorization (for instance an Act of Parliament), licenses others to make laws and rules through delegated legislation. The sanctioning made by an approved individual should be made according to the explanation set down in the Act of Parliament.
What are the advantages of legislation as a source of law?
Some main advantages of legislation as a source of law are as follows: –
- 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;
- 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;
- 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;
- 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;
- 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; and
- 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.
What are 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: –
- 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;
- 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;
- 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;
- 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; and
- 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.
Difference between Legislation and Judicial Precedent as Sources of Law
- The legislation has its source in the process of law which is basically enacted and enforced by the State while the precedent has its origin in ancient and historic judicial pronouncements.
- Legislation has an authoritative force on courts by the assembly. However, precedents are made by the courts themselves.
- Legislation signifies formal declaration of law by the governing body though precedents are acknowledgement and use of new standards of law by courts in the administration of equity, justice and good conscience.
- Legislation is ordered before a case emerges. However, the precedent appears simply after the case has developed and taken for the choice of the court.
- Legislation is basically of an exhaustive structure while the extent of legal precedent is restricted to comparable cases as it were.
- Legislation is commonly and generally forthcoming while precedent is retrospective in nature.
- Legislation is announced or distributed before it is brought into power, on the other hand, precedent comes into power on the double, i.e. when the choice is articulated.
- Legislation is finished with the goal of the lawmaking process yet it isn’t so on account of the precedent. The precedent which incorporates ratio decidendi and obiter dicta are expected to settle a particular contest on the purpose of law once for all.
- It isn’t hard for people, in general, to realise the law instituted by lawmaking body yet the precedent dependent on the case law isn’t effectively known to the general population. Now and again, the attorneys who manage law are themselves oblivious about the current case-law. Therefore it makes a precedent of an ambiguous nature.
- Legislation includes law-production by deductive strategy while case-law is made by resorting to an inductive technique.
Difference between Legislation and Customs as Sources of Law
- The presence of legislation is basically by law, while customary law is wholly accepted in a particular boundary.
- Legislation is enacted out of hypothetical standards. However, customary law becomes is adopted because of its very well and long presence in history.
- Legislation as a source is indeed a long lasting nature of law, as contrasted to the custom which is the most established type of law and is followed by a particular sect
- The legislation is a fundamental characteristic for a present-day society while the customary law was created in a crude social order.
- Legislation is finished, exact, written in the structure and effectively open. However, customary law is generally unwritten am non-scriptum and is hard to follow.
- Legislation results out of the deliberations while custom develops inside the general public in the ordinary course.