3. Discuss legislation as a source of law. What are the advantages of legislation as a source of law over other sources of law ? PDF

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Question 3: Discuss legislation as a source of law. What are the advantages of legislation as a source of law over other sources of law ? Ans: Introduction: Legislation is one of the most important sources of law. Etymologically, legislations means making , putting or setting the law. Salmond defines legislation as that source of law which consist in the declaration of legal rules by a competent authority. This definition is the strict and most usual application of the term ‘Legislation’. In a wise sense, it is used to include all methods of law making. This legislations means making new law in any fashion and it includes adding or altering the law by all the sources of law. ! In practice, strict definition is used and it means enactment of law by competent authority namely legislature or parliament. Thus legislation means enactment of laws. The enactment of laws by legislature or parliament is called Direct Legislation. ! Types of Legislation: Legislation is divided into two types" 1. Supreme Legislation: Supreme Legislation proceeds from the Supreme or Sovereign power in the State.It cannot be repealed, annulled or controlled by any other Legislative Authority. ! ! This is also called “Primary legislation.” Primary legislation is law made by the legislative branch of government. There are two types of primary legislations. Public General Acts - There are many new Public Acts enacted each year. ! ! Most of the Public General Acts are accompanied by Explanatory Notes, which explain in clear English what the Acts sets out to achieve and place its effect in context. Local and Personal Acts- These Acts affect a particular locality, person or body. ! 2. Subordinate Legislations: In India, all laws made by the authorities other than Parliament and State Legislatures are Subordinate Legislation. As they receive heir power from Parliament, they are subject to the control of Sovereign Legislature. ! ! This is also called “Secondary Legislation”. Secondary Legislations are Statutory Instruments, which are often called Codes, Orders, Regulations, Rules. They are generally made by Government Ministers under powers delegated by Parliament. ! ! They are also called Delegated Legislations or Executive legislation or Subordinate, Subsidiary legislations. Secondary legislation must be authorised by primary legislation, and conform to boundaries it has laid down. There are Six forms of Subordinate legislation. They are: ! I.

Colonial Legislation: It is the ownership entrusted to Colonies and other dependencies by Parent State. A colonial Legislature can further delegate its powers to other bodies that are dependent upon it. E.G: England made laws for India before 1947. !

II. Executive Legislation: Certain legislative powers are delegated expressly to the Executive by the Parliament. Statutes entrust the duty of supplementing the statutory provisions by issue of more detailed regulations to executives authorising them to make sub rules under them. ! III. Judicial Legislation: The Superior Courts have the powers to make rules for regulation of their own procedure. This is called Judicial Legislation. ! IV. Municipal Legislation: Municipalities have power to establish Special laws for the Districts or areas under their control.Such enactments are called Bye-laws.! V. Autonomous Legislation: Generally law making is done by the State only, but in certain exceptional cases, it is necessary to be entrusted to private hands. So limited legislative authority is given to groups of private individuals to make by-laws in matter concerning themselves. !

Eg: Railway Company makes by law for the regulation of its undertaking, University, Registered Company etc., Thus legislation by such private persons is called Autonomous Legislation. ! Difference between Primary Legislations and Secondary Legislations: ! 1. Primary legislations are laws made by the legislative branch of government, whereas Secondary legislations are usually framed by the executive wing of the constitution. ! 2. Primary legislation is a general term for all the enactments passed by Parliament to become law.! 3. Secondary legislation refers to the body of rules and legislation which are subsequently set in place by government departments authorised to do so by Parliament on the basis of the primary legislation. This system ensures that Parliament can get through its business without having to concern itself with the small practical details of legislation. " Advantages of Legislation Over Precedent: ! 1. Constitutive and Abrogative: Legislation is both constitutive and abrogate. It can enact new laws, increase the provisions of the existing laws, amend or annul the existing laws. On the other hand, Precedent is only constitutive, that too, limited in scope. It can create a new law, only when the new law is not in conflict with the old law.if the old law is already a settled law, then it has to be followed and it cannot be brushed aside by the Court. ! ! Here only by a legislation, such a settled law can be effectively altered and in this context, Legislations is superior to Precedent. ! 2. Division of Labour: In legislation, there is division of labour while enacting laws. Legislation is concerned only with the law making process and it leaves the enforcement function to the executive. Because of a single function of only enacting laws, there is increased efficiency in Legislation. Further before a bill becomes a law, there is wide discussion, publicity, criticism by public etc. ! ! So legislation is a fine product of law. Precedent, on the other hand, creates law and also administers law. Thus it combines these two functions. So there is less efficacy in Precedents. ! 3. Certainty: Legislation in certain, because it is codified. Whereas precedents are dependent on cases involving question of law to come before the Court for decisions and only then, a new law comes into existence. Thus precedent is uncertain. ! 4. Known in Advance: In Legislation, before the law is enforced by law Courts, it is made known to the public in advance by notification in the Official Gazette, paper publications etc. thus the principle of natural justice that law must be known before a case is decided by a Court is satisfied by Legislation. ! ! Whereas in precedent, law is known only after the judgement is delivered and hence there is no possibility of knowing the new law made by the court. Thus precendee does not comply with the principle of natural justice that the law must be known before the case is decided. ! 5. Prospective Operation: Legislation is operative prospectively, law is first enacted and published and in that law, disputes are brought before the Court which decides on the basis of the enacted law. Thus the application of legislation is for future cases only and very rarely for past cases. ! ! In precedent, on the other hand, the case law made by the Court after judgment applied to the facts of the case retrospectively. In other words, the facts of the case are heard by The Court and to such facts, the new case law decided in the judgement is applied. !

6. Precise and Clear: The words and sentences in legislation are precise, clear and easily understandable. Further it is easily available in the form of Bare Acts. The Acts are precise, accurate and clear and presented in the form of paragraphs and numbered serially as sections sub-sections, etc. Thus the legislation is superior in substance, form and standard.! ! Whereas precedent is contained in the judgement of Courts. The judgements are lengthy, legally worded and difficult to understand by a common man. The ‘Ratio Decidendi’ in precedents has to be researched. ! 7. Anticipation of Future Cases: Legislation can make rules in advance in anticipation of future cases that may arise at a later date. But in precedent, the Court has to wait for the occurrence of some dispute and the parties to file the case before it. Only then, it can make a new law. If the parties do not file any case, then no new law can be made by way of precedent. !

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8. Rectification of Defects: In Legislation, if there is any defect it can be rectified by amendment, once it it brought to the notice of the Legislature. But in precedent, this is not possible. Even if a Judge notices a defect in a law, he cannot ‘sup moto’ correct such defect. He has to wait for a case to be filed in his Court and only then, he can correct such mistakes. ! ! Therefore Precedent is incomplete and unsystematic. The process of extracting the law from decided cases is difficult and can be done only by professionally trained persons.The common people cannot understand them. But a statue law is easy to understand. Judiciary law in numerous law reports is not easily accessible but statutory law is contained in specific enactments. !...