CHAPTER SEVEN

LEGISLATION
 • THE TERM "legislation" is derived
from two Latin words, legis THE
meaning law and latum meaning to
legislation
make, put or set.
• Etymologically, legislation means
the making or the setting of law.
According to Holland:

❑ "The making of general orders by our judges is as true legislation as is carried on by the

Crown."

❑ Again, "in legislation, both the contents of the rule and legal force is given to it by acts of

the sovereign power which produce written law.

❑ unwritten law to which the sovereign authority gives its whole legal force.
According to Gray,

legislation means "the formal utterances of the legislative organs of the society".

According to Salmond:

"Legislation is that source of law which consists in the declaration of legal rules by a

competent authority."
❑ According to another writer, legislation consists in "the declaration of legal rules by a

competent authority, conferring upon such rules the force of law".

❑ The term legislation is sometimes used in a wider sense to include all methods of law-

making. When a judge establishes a new principle by means of a judicial decision, he may

be said to exercise legislative powers and not judicial powers.

❑ According to Austin: "There can be no law without a legislative act."

❑ However, this is not legislation in the strict sense of the term. The term legislation

includes every expression of the legislature whether the same is directed to the making

of law or not.
• Legislation as Source of Law

• The view of the analytical school is that typical law is a statute and legislation is the
normal process of law-making.
• They also do not admit the claim of custom to be considered as a source of law.
• To quote James Carter is not possible to make law by legislative action.
• According to this view, legislation has no independent creative role at all. Its only
legitimate purpose is to give better form and make more effective the custom
spontaneously developed by the people.
Supreme and Subordinate Legislation

❑ According to Salmond, legislation is either supreme or subordinate. Supreme legislation is

that which proceeds from the sovereign power in the State.
❑ It cannot be repealed, annulled or controlled by any other legislative authority.
❑ On the other hand, subordinate legislation is that which proceeds from any authority other
than the sovereign power.
❑ It is dependent for its continued existence and validity on some superior authority. The
Parliament of a country have the power of supreme legislation.
❑ However, there are other organs which have powers of subordinate legislation.
Subordinate Legislation
Subordinate legislation can be different types.
1) In certain cases, legislative power has also been given to the judiciary. The superior courts
are allowed to make rules for the regulation of their own procedure. It is a true form of
legislation although it cannot create new laws by way of precedents.
2) Municipal authorities are also allowed to make bye-laws for lim ited purposes within their
areas.
3) Sometimes the State allows private persons like universities, railway companies, etc., to
make bye-laws which are recognized and enforced by law courts. Such legislation is
usually called autonomic.
Delegated Legislation:

• Another kind of subordinate legislation is executive legislation or

delegated legislation. It is true that the main function of the executive is
to enforce laws but in certain cases, the power of making rules is
delegated to the various departments of the government. This is
technically called subordinate or delegated legislation. Delegated
legislation is becoming more and more important in modern times.
Factors responsible for the growth of delegated legislation:

1. The concept of the State has changed and instead of talking of a police State, we think in
terms of a welfare State. This change outlook has multiplied the functions of the
government. This involve the passing of more laws to achieve the ideal of a welfare State.
Formerly, every bill used to be a small one but civilization has becomes complicated that
every piece of legislation has to be detailed. The rising the number and size of the bills to
be passed by Parliament has created a problem of time. It is realized that all this legislation
cannot be enacted even if the members of Parliament are prepared to work day and night.
The result is that Parliament resorts to the device of pass ingskeleton bills and leaving the
work of filling in the details to the departments concerned.
2. Modern legislation is becoming highly technical and it is too much to expect that the
ordinary members of Parliament will appreciate all the implications of modern legislation.
Except a few experts in certain lines, the other members of Parliament are bound to bungle
if they attempt to do the impossible.
Under the circumstances, it is considered safe to approve of general principles of legislation
and leave the details to the ministries concerned.
3. The time available for drafting bills to be passed into law by Parliament is not adequate.
If an attempt is made to draft detailed bills within a short period, the drafting is bound to
be defective. No wonder power is delegated to the departments concerned to issue
orders-in council which can be made at leisure and which can be expected to be logical
and intelligible.

4. It is impossible for any statesman or civil servant to foresee all contingencies that might
arise in the future and provide for them in the bill when it is being passed by Parliament.
Control of delegated legislation
Delegated legislation is controlled in the following ways:

(a) Parliamentary Control: Parliament has always general control. When a bill is before it,
it can modify, amend or refuse altogether the powers which the bill proposes to
confer on a minister or some other subordinate authority.
(b) Parliamentary Supervision: A second way of controlling delegated legislation is that
laws made under delegated legislation should be laid before the legislature for
approval and the legislature may amend or repeal those laws if necessary.
(c) Judicial Control: While parliamentary control is direct, the control of courts is indirect.
Courts cannot annul subordinate enactments, but they can declare them inapplicable in
particular circumstances. The rule or order frowned on by the courts, though not actually
abrogated, becomes a dead letter because in future no responsible authority will attempt
to apply it. If it is applied, nobody will submit to it. Judicial control operates through the
doctrine of ultra vires. All delegated legislation is subject to the test whether or not it falls
within the periphery of the power thus conferred. If they do not, they are of no effect.
Courts also possess certain direct power over the acts and procedures of public
authorities. The most important of them are called writs. The other methods are
injunctions and declarations.
(d) Trustworthy Body: An internal control of delegated legislation can be ensured if the
power is delegated only to a trustworthy person or body of persons.
(e) Publicity: Public opinion can be a good check on the arbitrary exercise of delegated
statutory powers. Public opinion can be enlightened by antecedent publicity of the
delegated laws.
f) Expert's Opinions: In matters of technical nature, opinions of experts should be taken. That
will minimize the danger of vague legislation and "blanket" delegation.
Legislation and Precedents
❑ It may be desirable to compare legislation with precedents and customary law. As regards
legislation and precedents, the former has its source in the law-making will of the State. On
the other hand, precedent has its source in the ratio decidendi and obiter dicta of the
judicial decision.
❑ Legislation is imposed on courts by the legislature but precedents are created by the courts
themselves.
❑ Legislation is the formal and express declaration of new rules by the legislature, but
precedents are the creation of law by the recognition and application of new rules by
courts in the administration of justice.
Ratio decidendi of a judgment may be defined as the principles of law

formulated by the Judge for the purpose of deciding the problem

before him whereas obiter dicta means observations made by the

Judge, but are not essential for the decision reached.

❑ It is a judicial decision which provides a rule of law for subsequent decisions. Legislation
creates statute law and precedents create judge-made law. Legislation comes before a
case arises requiring its application.
❑ Precedent comes after the cause has arisen. Legislation is expressed in a general and
comprehensive form but precedent is in a particular and limited form. Legislation is
abstract but precedent is definite.
❑ However, a precedent primarily settles a particular dispute between definite parties. It is
easy to interpret a statute than to interpret a precedent. While legislation is ordinarily
prospective, precedent is retrospective only.
Legislation and Custom
❑ As regards legislation and customary law, legislation grows out of theory but customary law
grows out of practice. While the existence of legislation is essentially de jure, the existence
of customary law is essentially de facto Legislation is the latest development of law-making
tendency, customary law is the oldest form of law.
❑ Legislation is the mark of advanced society and a mature legal system. Customary law is the
mark of primitive society and an undeveloped legal system.
❑ Legislation expresses a relationship between men and the State but customary law
expresses the relationship between man and man
•In law and government, de facto describes practices that exist in

reality, even though they are not officially recognized by laws.

•In law and government, de jure describes practices that are legally

recognised, regardless of whether the practice exists in reality.

❑ Legislation is complete, precise and easily accessible, but the same cannot be said about
customary law
❑ Legislation is jus scriptum but customary law is pas non scriptum
❑ Legislation is the result of a deliberate positive process but customary law is the outcome
of necessity, utility and imitation
❑ According to Keeton: "In early times, legislation either de fined or supplemented custom,
today the relative positions of custom and legislation have been reversed. Statute law is
the principal source
 Advantages of Legislation over Precedent

(1) Legislation is both constitutive and abrogative, but precedent is merely constitutive.

Legislation is not only a source of new law but also the most effective instrument of

abolishing the existing law.

(2) Legislature attends to the work of legislation and judiciary attends to the work of

interpreting and applying the law.

(3) Legislation is superior in form to precedent. It is brief, clear, easily accessible and

knowable. Case-law is buried from sight and knowledge in the huge and daily growing

mass of the records of litigation.

4. Legislation satisfies the requirement of natural justice that laws shall be known before

they are enforced. Law is declared in the form of legislation and the same is later on

enforced by the courts. Law is formally declared to the people and if after that they dare

to violate the same, they are punished. However, that is not the case with precedent.

5. Legislation makes rules for cases that have not yet risen but precedent must wait until

the actual concrete incident comes before the courts for decision.
 Advantages of Precedent over Legislation

1. According to Dicey: "The morality of the courts is higher than the morality of the
politicians.“

2. According to Salmond, case law enjoys greater flexibility than statute law. Statute law

suffers from the defect of rigidity. Courts are bound by the letter of law and are not

allowed to ignore the same. In the case of precedent, analogical extension is allowed.

3. According to Amos, law does not become more uncertain when it is based on precedents

than when it is founded on enacted law.

4. According to Gray, case law is not only superior to statute law but all law is judge-made

law. To quote him: "In truth, all the law is judge made law. The shape in which a statute is

imposed on the community as a guide for conduct is that statute as interpreted by the

courts. The courts put life into the dead words of the statute.
Codification
1. According to the Oxford Dictionary: "Code is a systematic collection of statutes, body of

laws, so arranged as to avoid inconsistency and overlapping.“

2. Codification implies collection, compilation, methodical arrangement, systematization

and reduction to coherent form the whole body of law on any particular branch of it so as

to present it in the form of a systematic, clear and precise statement of general principles

and rules.
Conditions for the codification of law
According to Roscoe Pound, the following important conditions lead to codification:
(1) The exhaustion for the time being of the possibilities of juristic development of existing
legal materials, or where the legal institutions have become completely mature, or where
the country has no juristic past, the non-existence of such material.
(2) The unwieldiness, uncertainty and archaic character of the existing law.
(3) The development of an efficient organ of legislation. The need for one uniform law in a
political community whose sever al sub-divisions had developed or received divergent
local laws.
Kinds of Codification Codes may be of the following kinds:
(1) A creative code is that which makes a law for the first time without any reference to any
other law. It is law-making by legislation.
(2) A consolidating code is that code which consolidates the whole law-statutory, customary
and precedent-on a particular subject and declares it. This is done for systematizing and
simplifying the law.
(3) A code may be both creative and consolidating. It may make new law as well as
consolidate the existing law on a particular subject.
Merits/Advantages
(1)The one great merit of codification is that law can be known with certainty. The certainty
of law avoids confusion in the public mind..
(2) Another advantage of codification is that the evils of judicial legislation can be avoided.
(3)Codification is necessary to preserve the customs which are suited to the people of a
country.
(4)The codification of law is necessary to bring about a sense of unity in the country.
Demerits/Disadvantages
(i) Codification is not an unmixed blessing. It has its demerits also.
Codification brings rigidity into the legal system.
(ii) Codification results in the regimentation of the life of the people. A code
gives a uniform law to the whole country. It does not bother about the
differences in the sentiments, convictions, aspirations, customs and
traditions of the people living in different parts of the country.
(iii) Codification makes the law simple and thereby enables the knaves to
flourish. They know the law and before committing a crime, they can
provide against the same.
IV. A code is likely to disturb the existing rights and duties of the people by creating new

rights and duties in place of the old ones.

V. No code can be complete and self-sufficing.