This article, written by Subodh Asthana and further updated by Meenakshi Kalra, deals with Legislation as a source of law and why it is important. It also lists various kinds of legislation and its advantages and disadvantages.
Table of Contents
Introduction
To understand what the law is, we must understand where the law came from or what the sources of the law are. There exist many sources of law, such as legislation, custom, precedent, judicial decisions, commentaries, etc. In this article, our main focus shall be on legislation as a source of law.
The word legislation has been derived from the Latin terms legis and latum. Legis means Law, and Latum means to make or set. Legislation thus means making law. It is one of the primary sources of law. This means that legislation is one of the most authoritative sources of law from which other rules and regulations derive their validity.
Legislation is a source of law that requires a competent authority to make rules and regulations that are required to be followed by everyone. Legislation is also known as Statutes or Acts of Parliament. It is created by the Parliament and is in a written form.
Now that we have a basic idea of what legislation is, let’s try to understand what law and its other sources are briefly.
What is the law and its sources?
Simply put, the law just refers to a set of rules and regulations that control the behaviour of people who live in society. It is made up of other Statutes, Acts, rules and regulations, etc. People who break these rules can be punished by the State in the form of fines or imprisonment.
Many jurists, such as Austin, Salmond, Pound, etc., have given their definitions in an attempt to sum up what law means, but there is no single agreed-upon definition. This is because law is a wide concept and cannot be explained by a single definition.
The Constitution of India, 1950, under Section 13(3)(a) describes law as “any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India, the force of law.”
Sources of law
Customs
Customs are the oldest sources of law. A custom can be defined as a principle that has existed either in reality or hypothetically for a very long time and is backed by law in a certain territory, though it may not be consistent with or not steady with the general precedent-based law of the community.
Customs are of two types:
- Customs without sanction
- Customs with sanctions
Precedent
To put it simply, a precedent is a case that the court has already decided. A precedent uses a case that has already been decided by the court to settle similar matters in the present. In most cases, a lower court uses the precedents of a higher court.
Legislation
As discussed in the introduction of this article, legislation refers to the process of law-making. It involves making new laws, amending the present laws if the need arises or completely repealing an old law.
Legislation can also refer to the law or set of laws that have been passed by the Parliament. These laws can be made and enacted at the national, state, or local level.
Legislation as a source of law
Definition of legislation
Austin defined legislation as a lawmaking process by a sovereign authority which must be followed by all people.
Salmond also defined legislation and described it as the process of lawmaking by a competent and able authority.
According to Salmond: “Legislation is that source of law which comprises 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 the positivist school, “A run-of-the-mill law is a rule, and legislation is the typical source and form of lawmaking.” Most exponents of this school do not agree that courts can create laws. They also rejected the idea that customs are a source of law and only consider legislation to be law.
According to the historical school, legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to improve and make more effective customs that have naturally developed among the people. The historical school usually does not perceive legislation as a form of law.
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 that is entrusted with the work of lawmaking, and also there is no scope for any alteration as such because of codified and watertight laws, which leave a very minuscule range for the amendment.
Types of legislation
Legislation can have many functions. They are made by a competent authority to fulfil the needs of the society. Let’s look at different types of legislation that exist to better understand the role of legislation:
Supreme legislation
This type of legislation was given by Salmond along with subordinate legislation. Supreme legislation is made by the sovereign authority of a country. It cannot be repealed, declared invalid or administered by any other authority. In India, the Parliament is the sovereign authority that has the power to legislate.
Subordinate legislation
Subordinate legislation was also given by Salmond as one of the types of legislation that exist. Under subordinate legislation, laws are made by an authority other than the supreme authority. The powers of the supreme authority are given to a subordinate authority. The supreme authority also sets limits to the power of subordinate authority under which it must work. It can be cancelled and abrogated anytime by the power of the sovereign authority, and therefore, it must make way for sovereign laws. Subordinate legislation is liable to parliamentary control. There are five kinds of subordinate legislation, which are given below:
Colonial legislation
The nations which are not autonomous and are under the control of some other state have no independent authority to make laws. Such countries can be in different classes, such as colonies, domains, secured or trust regions, and so forth. The laws made by them are subject to the supreme legislation of the state under whose control they are. Therefore, it is subordinate legislation.
Executive legislation
The executive helps in the implementation of laws that are made by the legislature. The executive is also given the power to make subordinate legislation that works with the supreme legislation. This is because it helps in the proper implementation of the supreme legislation.
Judicial legislation
The judiciary has also been given the power to make rules. The higher courts have the power to make rules regarding their procedures and administration. This is different from the concept of precedent.
Municipal legislation
Municipal bodies can make laws for the area under their supervision. They can make bylaws for town planning, roads, waste disposal, etc.
Autonomous legislation
Autonomous legislation refers to the legislation made by organisations for their internal functioning. For example, rules of conduct made by universities. Another example is the railways as an independent body, which makes bylaws for the guidelines of its organisation, and so on.
Delegated legislation
Delegated legislation refers to those laws which are made by people or bodies to whom parliament has delegated law-making powers. Where Acts are made by Parliament, a principal Act may cause arrangements for subsidiary legislation to be made, which indicates who can make laws as such under that Act. Delegated legislation can only exist in connection with an empowering or parent act and not independently.
Delegated legislation includes the detailed rules and regulations needed to ensure that the main law functions smoothly and effectively. This type of legislation might be enacted and applied by Government Departments, Local Councils or Courts.
Guidelines and statutory rules are the most common forms of delegated legislation, which are created by the executive or a minister and applied to the general public. Bylaws and sometimes ordinances are made by local government authorities and apply to people living in that specific area. The main or parent Act usually outlines the legal process to be followed if there is an issue with a delegated law.
Sub-delegation
Sub-delegation is the process through which power that has been delegated to a person or entity by a higher authority is further delegated to some other person or entity. The maxim “Delegatus non potest delegare”, which means a delegatee cannot further delegate authority, means that a delegator without statutory authority cannot transfer their authority to another party.
In this case, the initial decision maker, who acts as the first delegating authority, transfers authority to a third party who acts as the sub-delegate and has the authority to use the powers of delegated authority. There are three kinds of sub-delegation:
Full or partial
Full sub-delegation occurs when all the authority is given to another authority to be exercised. Partial delegation occurs when the person who has been delegated the authority needs to take permission and directions from the delegating authority before exercising the power given to them through sub-delegation.
Conditional delegation
Conditional sub-delegation refers to when the action taken by the delegated authority can be revised and is subject to examination by the superior authority before giving any confirmation, or the sub-delegation comes with certain conditions. Under unconditional delegation, the person given the power has the same level of authority as the person who gave it to them.
Skeleton legislation
Under this legislation, the higher authority only makes a skeleton or a structure for the legislation, it is then the delegated authority’s duty to make the provisions and policies under it. The delegated authority is required to follow the guidelines issued to them while making the provisions without fail.
Interpretation of legislation or statutes
Interpretation means to give meaning to the statutes or legislation. Statutes are the most important part of the legal system, without which it cannot exist. Statutes are the main source of law in most countries. They help in regulating the people who exist in a society.
The judiciary is the main organ that is responsible for the interpretation of statutes and various laws. Interpretation of statutes is a hard and complex task, but it helps in making sure that the law is applied fairly and uniformly.
People often confuse the interpretation of statutes with the construction of statutes. These two concepts are interlinked with each other and very helpful in promoting the rule of law. Interpretation is used as a way of understanding and extracting the meaning of the language that has been used in the statute. After the meaning of the statute has been understood, it is time to apply the same in a practical situation, and this is where construction comes in. Construction is used to implement and enforce the law that was interpreted.
Objective of interpretation of statutes
The objective of interpretation is to find the intention of the legislature. This intention can be found by analysing the text of the statute. The statutes should be read and understood in their normal grammatical sense unless there is ambiguity that arises in the words.
The courts are supposed to make decisions by properly interpreting them. They cannot arbitrarily judge the cases, because of which various rules have been developed. These rules are known as the rules of interpretation.
Rules of interpretation
Literal rule
It is also known as the plain reading rule. It is used to understand the words in their plain and ordinary meaning. This is done without any addition or exclusion of other words.
Golden rule
This rule is also known as the British rule. This rule allows the courts to move away from the literal meaning of the word. It allows them to be flexible if the interpretation gives absurd results.
Rule of harmonious construction
This rule is also known as the thumb rule of interpretation. It is used to remedy the conflict between two statues by harmonising them. This is done in a way that none of the statutes or provisions cancel out each other, and they can work together.
Mischief Rule
This rule is also known as Heydon’s rule. It is used to find any mischief or ambiguities in a statute. The mischief is then fixed and remedied. This is done by finding out the true intention of the statute.
Ejusdem generis rule
According to this rule, when general words are followed by a list of words, then such words shall be constrained to the category in which those specific words fall.
Noscitur a sociis rule
Under this rule, the meaning of the words can be understood by the context in which they have been used by analysing the other words used in their surroundings.
Expressio unius est exclusio alterius rule
This rule can be translated into express or include one thing imply the exclusion of the other, or the alternative. This means if one thing has been included in the statute, then other things are excluded from it.
Advantages of legislation as a source of law
Legislation has many advantages as a source of law, as it is used as an important tool for creating rules and laws:
Abrogative power
Unlike the other sources of law, legislation can modify and even cancel old laws with the changing needs of society.
Efficiency
Legislation helps in the separation of powers between the organs of the government. The law is made by the legislature and implemented and overseen by the Executive.
Independent Nature
Legislation is an independent source of law and is regarded as the strongest source of law. It is clear and available to all, unlike other sources of law.
Demerits of legislation as a source of law
No source of law is perfect and complete in its form and sense; some lacunas and loopholes could be easily found in every source of law which is as follows, in the case of legislation.
Enforcement
Proper implementation of legislation is very important. Without the proper implementation, legislation is not effective and thus, will have little to no impact on the people living in the society.
Limited Scope
There may be situations where a law to address an issue might not exist. Thus, legislation has a limited scope to address problems and issues.
Expensive
The process of making and enforcing the legislation can be expensive and time-consuming. It can put pressure on taxpayers, businesses and individuals alike.
Rigid Nature
Laws can be slow to change according to the needs of society, as the process to amend them is costly and time-consuming. Further, some people might oppose a law and be against it, making it even more difficult to modify it.
Difference between precedent and legislation
Legislation and precedent are both sources of law, but they differ in several ways:
The legislation has its source in the process of law, which is 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 as it is made by the Legislature. However, precedents are made by the courts themselves.
Legislation signifies a 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 established before a court case arises, whereas a precedent is set after the court has given its decision in a case.
Legislation is basically of an exhaustive structure, while the extent of legal precedent is restricted to legal issues involved in the case.
Legislation is typically prospective in application, while precedent is retrospective in its application.
Legislation is announced or published before it takes effect, whereas a precedent takes effect after the decision of the court is announced.
A law is rules and regulations which control the behaviour of people. Precedents on the other hand are past decisions of the court which are used to judge similar cases in the future.
Legislation involves creating laws through a deductive approach, whereas a precedent is developed using an inductive method.
Some material differences can be summarised as below:
| Basis | Legislation | Precedent |
| Source | Enacted and enforced by the State through the legislative process | Originates from historic judicial pronouncements |
| Authority | Made by the Legislature, carrying authoritative force on courts. | Created by the courts themselves. |
| Nature of Law | Formal declaration of law by the governing body. | Acknowledgement and use of new legal standards in court decisions. |
| Structure and application | Exhaustive in scope, covering a broad range of legal areas. Typically prospective, applied to future situations. | Limited to legal issues involved in a particular case. Retrospective in nature, based on past cases and applied to future similar cases. |
| Objective | Provides general rules and guidelines. | Resolves a particular dispute and guides future cases. |
| Methodology | Created using a deductive approach. | Developed using an inductive approach. |
Difference between legislation and custom
One of the main differences between custom and legislation is that legislation is made, whereas customs grow from the practices of people over time. Legislation is made deliberately by the State. Customs are practices that come into being without any express enactment.
Legislation needs to be enforced, unlike a custom, which does not need any enforcement agency. If what is stated in legislation is not followed, one might be punished, but no penalty is given to a person who violates a custom.
Legislation is a clear and specific source of law, and it is definite. Customs are not clear or definite as they are not mentioned in a single book or in a single place.
Legislation is created by law, i.e. it is de jure, and customary law, on the other hand, exists because of its long practice, i.e. it is de facto. Therefore, it can be said that legislation is based on theory, whereas customary law arises out of long-term use.
Some material differences between custom and legislation as a source of law can be summarised below:
| Basis | Legislation | Customary law |
| Historical Role and Creation | Initially used to amplify customary law and created by the legislature. | Initially, the primary source of law now supports legislation and arises from long-term practice. |
| Validity | Valid as soon as it is enacted. | Valid only after long periods of consistent practice. |
| Nature | De jure (exists by law). | De facto (exists through practice). |
| Foundation and Age | Based on theoretical principles and a relatively new source of law. | Based on long-term social use and the oldest form of law. |
| Clarity, Structure and Accessibility | Clear, structured, and codified and easily accessible due to being written and codified. | Often unwritten and less structured, and hard to access and understand, as it is usually unwritten. |
Conclusion
Legislation refers to the process of law-making. Law-making is a practice that helps us convert an idea of law into an actual law. Law has different sources from which it is derived, such as Legislation, Custom, Precedent, etc.
Legislation is the most important and the strongest source of law. This is because it is clearer and more organised than the other sources. The State plays a vital role in making legislation as per the needs of the society. The State also keeps a check on the process of law-making and makes sure that once legislation has been passed, it is also properly implemented.
The process of law-making is based on concepts such as democracy, separation of powers and social state. It is these principles that help us decide what legislation is needed and when.
Frequently Asked Questions (FAQs)
What is the nature of law?
This question has come up time and again in both the fields of Jurisprudence and Philosophy of law. There are two points of view on this, one answer is given by natural law theory, and another has been given by legal positivism.
According to the natural law theory, law can be described by understanding the relationship between justice and morality. Legal positivists, on the other hand, believe that law is the command given by the sovereign, which is backed by punishment. Thus, the natural law theory is based on justice, and the legal positivism is based on control.
The nature of law is a relevant topic of discussion to date. A lot of thinkers and jurists have tried to sum up the nature of law, but there is still no clear answer.
What is the purpose of the law?
Law has many functions and purposes. It helps in the maintenance of peace and harmony in society. Without the law, there would be no check on the people. They would be free to do whatever they want without any fear or repercussions for engaging in wrongful acts.
Law also helps in establishing standards that should be followed by all. It tells us which behaviour is right and which is wrong. It helps in protecting the rights of the people. Without the law, anyone could just curtail the rights of people and hamper their freedom.
Law is necessary to uphold order in society. It acts as a guide and escorts people towards correct conduct. It also helps in the resolution of conflicts that arise between people. We need laws to protect our general safety and basic rights.
What is the rule of law?
The concept of the rule of law can be traced back to the time of the Ancient Romans when they established the first republic. The term rule of law has been derived from the French phrase le principe de légalité, which means the government based on principles of law.
According to this principle, the law should be treated as supreme and predominant without any influence of the arbitrary power of the government. Every person shall be equal in front of the law and there is no one above the law.
What are the types of legislatures?
A legislature is one of the organs of the government. It has the power to enact and amend the laws of a country. There are two types of legislatures:
Unicameral legislature refers to having only one legislative or parliamentary chamber. The single chamber is required to do activities like passing the budget, enacting laws, supervising the administration of the government, etc. The unicameral legislature can be found in countries like Sweden, Iran, Hungary, New Zealand, Norway, and China, among others.
Bicameral legislature refers to a country’s law-making body which has two separate houses or chambers to perform legislative activities such as making the law, enacting the law, passing a budget, etc. This type of legislature is found in countries like India, Canada, Japan, the United Kingdom, etc.
References
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