LEGISLATION AS A SOURCE OF LAW

JURISPRUDENCE ASSIGNMENT

FACULTY OF LAW
JAMIA MILLIA ISLAMIA

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 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher Mr. Eqbal
Hussain as well as our Dean Professor Nuzhat Parveen Khan, who gave me this
golden opportunity to do this assignment on the topic, Legislation as a source of
law, which also helped me in doing a lot of research and I came to know about so
many new things. I am really thankful to them. Secondly, I would also like to
thank my parents and friends who helped me a lot in finalizing this project within
the limited time frame.

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 CONTENTS

Introduction………………………………………………….4
Concept of Legislation………………………………………5
Types of Legislation…………………………………………7
Delegated Legislation………………………………………...9
Delegated and Executive Legislation…………………………10
Growth of Delegated Legislation……………………………..10
Legislation vs. Precedent……………………………………12
Legislation vs. Custom………………………………………13
Conclusion……………………………………………………14
Bibliography………………………………………………….15

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LEGISLATION AS A SOURCE OF LAW

INTRODUCTION
The Term ‘sources of law’ has been interpreted differently by different writers and used in
divergent senses. Under modern jurisprudence, in one sense it means the source i.e. the sovereign
authority from where the law emanates. In another sense, it means the place or source where one
must resort to get at law. Now meaning of term sources cleared we have to resort to what are
these sources. The main sources of law include: Custom, legislation, precedent and other sources
including religion, historical texts, writings of philosophers, etc. All these sources have
contributed to development of law and content of legal philosophy during different times.
Custom helped in development of law during ancient and medieval times, precedents and
legislations helped in development of law in later centuries. These sources have been imperative
in development of law and have contributed to its development. Legislation mostly becomes the
exclusive source of new law with the advancing civilization. The power of supreme legislation
such as the Parliament of India or the U.S. Congress is strictly defined by a written Constitution.
The constitutional validity of a particular legislation may, however, be challenged before a
competent court having jurisdiction. Legislation is considered as the most important source of
law. It is regarded as most important for two reasons, firstly it involves laying down of legal
rules by legislature which the recognizes as law, and secondly, it has force and authority of state.
Legislation has become the commonest source of new laws or of law reform since around the
Seventeenth century. So when we think of laws in modern times, we often think of sections in an
Act of Parliament.

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CONCEPT OF LEGISLATION

Since the emergence of legislatures in 13th century, legislation has emerged as the chief source
of Law. Traditionally, the State depended upon customs and the decrees or orders of the King for
regulating the behaviour of the people. Later on, the legislature emerged as an organ of the
government. It began transforming the customary rules of behaviour into definite and enacted
rules of behaviour of the people. The King, as the sovereign, started giving these his approval.
Soon legislation emerged as the chief source of law and the legislature got recognition as the
Legal Sovereign i.e. law-making organ of the State. In contemporary times, legislation has come
to be the most potent, prolific and direct source of law. It has come to be recognized as the chief
means for the formulation of the will of the State into binding rules.

Legislation is considered as the most important source of law in today’s environment. . The
legislature is that organ of the state whose primary function is to make laws. To Leacock the
legislatures deliberate, discuss and make laws. Thus, law can be defined as the opinion of the
majority legislators. They are recorded in the Statute Book. When the legislature is not in
session, the executive is empowered to issue ordinances, decrees etc. which are as good as the
laws made by the legislatures. It is considered as most important source for a variety of reasons
because it involves laying down rules of law through enactment by legislature which is
recognized by the State as law and secondly because legislation has force of law. Thus this
deliberate law making by legislature is indispensable for efficient regulation of modern state.

The term legislation is derived from latin words, legis meaning ‘law’ and lactum which means
“to make” or “set”. Thus the word ‘legislation’ means making of law. It is also called as
‘statute’. Legislation is that source of law which consists of the declaration of legal rules by a
competent authority. It is a law promulgated by legislature or any other competent authority.
Before a law is passed by the legislature i.e. has not received the assent of President it remains a
bill. The term ‘legislation’ has been used in different senses. In it’s broader sense legislation

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means all methods of law making. In it’s technical sense, it means every expression of will of
legislature, whether making law or not. Legislation consists of that source of law which consists
in promulgates of legal rules by a competent authority. It is sometimes called Jus Scriptum
(written law).

Legislations can have a number of purposes such as to regulate, control, authorize, to provide, to
sanction, etc. rules regarding some subject. Examples of legislation are Indian Penal Code, Code
of Civil Procedure, etc. The different jurists have expressed divergent opinions regarding
legislation as a source of law. Salmond prefers to call it enacted law. As per Bentham and Mill,
the concept of legislation includes both the process of law making as well as the law enacted as a
result of such process.

Gray pointed out that legislation includes “formal utterances of the legislative organs of the
society”.
Referring to legislation as a source of law in England, Blackstone pointed out that the law that
has its source in legislation which may be most accurately termed as enacted law, and all other
forms may be distinguished as un-enacted law. In England, the former is called statute law and
latter is called common law.

Austin observes that legislation includes activities which result into lawmaking or amending,
transforming or inserting new provisions in the existing law. Thus, there can be no law without a
legislative act.1 Austin further holds that when a judge establishes a new principle by means of
his judicial decisions, he is said to exercise legislative power and not judicial power.

Salmond observes that legislation is that source of law which consists in declaration of legal
rules by competent authority.2

Legislation is the product of the will of politicians who are affected by the popular feelings and
passions. That is why the judiciary often denounces statutes as wrong, tyrannical, unjust or
contrary to fundamental principle laid down in the written Constitution.” John Salmond points
out that enacted law is rigid, strictly bound w within the limits of authoritative formulae, while
the case-law, with all its imperfections, is flexible. In the case of statute law the letter of the law

1
Austin: Jurisprudence, Vol. III, p. 555.
2
Salmond: Jurisprudence (12th ed.), p. 115.

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supersedes the true spirit of law. The phraseology may fail to convey the true meaning intended
by the enactment, but the courts are bound by the literal expression.

TYPES OF LEGISLATION

Legislation may be of two main kinds:

1. Supreme Legislation
2. Subordinate Legislation

SUPREME LEGISLATION

Supreme legislation is that legislation which emanates from the sovereign authority, which
cannot be repealed, altered or controlled by any other legislative authority. The source of
supreme legislation is a sovereign body. For example, the parliament of Britain is a sovereign
body and acts passed by it are supreme legislation, in India constitution is a supreme legislation.
No authority within the state can, in no way control or check it. It is considered not only supreme
but legally omnipotent. It is not subject to any other legislation within the state. It cannot be
repealed, annulled or controlled by any legislative authority.

SUBORDINATE LEGISLATION

Subordinate legislation is legislation by any other authority then the supreme authority in the
state. It is made under the powers delegated by the supreme authority. Such legislation owes it’s
existence, validity and continuance to the supreme authority. It can be repealed by and must give
way to sovereign legislation. Subordinate legislation is subject to parliamentary control.
Subordinate legislation can be classified into five categories:

1. Colonial Legislation

The countries which are not independent and are under the control of some other state have no
Supreme power to make law. Such countries are of various classes: as colonies, dominions,

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protected or trust territories etc. The laws made by them are subject to the supreme legislation of
the state under whose control they are. Thus it is subordinate legislation. The laws made by them
for the self-government are subject to alternation, repeal or supersession by the legislation of the
British Parliament. As the colonies are fast achieving independence, and almost all the British
dominions have uncontrolled power for legislation, therefore in the near future, we may not have
this class f subordinate legislation.

2. Executive Legislation

When legislative powers are delegated to the executive, it is called as executive legislation.
Though the important function of executive is to implement the laws and carry on the
administration, it is always entrusted with some subordinate legislation powers also. Today,
practically every law enacted by the legislature contains delegation clauses conferring law
making power on the executive to supplement the statutory provisions.

3. Judicial Legislation

Powers are given to the judicature to make rules for the regulation of it’s procedure. In India, the
Supreme Court and the High Court both have the power to make rules for their respective
procedure and administration.

4. Municipal Legislation

Municipal bodies are given power to make bye-laws concerning their local matters. Bye-law
made by a local body operates within it’s respective locality. In India, such municipal bodies are
municipal corporations, municipal boards, Zila parishad, etc. There is move for granting very
wide powers to Panchayats.3

5. Autonomous legislation
When the Supreme authority confers powers upon a group of individuals to legislate on the
matters entrusted to them as a group, the law made by the latter is called autonomic law and the
body is known as autonomous body. A railway is a autonomous body. It makes bye-laws for the
regulation of its administration, etc. A university is also an autonomous body.

3
http://www.lawnotes.in/Sources_of_Law.

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DELEGATED LEGISLATION

Because of several pressing reasons like paucity of time, lack of expertise and increased demand
for law-making, the legislature of a State finds it essential to delegate some of its law-making
powers to the executive. The executive then makes laws/rules under this system. It is known as
Delegated Legislation. Currently, Delegated Legislation has come to be a big source of Law.
However, Delegated Legislation always works under the superior law-making power of the
Legislature.

Delegated Legislation is a kind of subordinate legislation. Generally the delegated legislation

mans the law made by the executive under the powers delegated to it by the supreme legislative
authority. It comes in the form of orders bye-laws, etc. The committee of ministers powers set
that the term delegated legislation has two meanings. Firstly, it means the exercise of power that
is delegated to the executive to make rules. Secondly, it means the output or the rules or
regulations, etc. made under the powers so given.

The Delegated Legislation may therefore be declared void under the following situations:

(a) The Enabling Act is ultra vires.

(b) The subordinate legislation violates the Constitution, and

(c) The subordinate legislation runs counter to the provision of the Enabling Act.

SUB-DELEGATION

It is also a case in Indian legal system. The power to make subordinate legislation is derived
from existing enabling act. It is fundamental that a delegate on whom such power is conferred
has to act within the limits of the enabling act. Its purpose is to supplant and not to supplement

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the law. Its main justification is that sometimes legislature does not foresee the difficulties that
will come while enacting the law. Therefore, delegated legislation fills in those gaps which are
not seen while formulation of the enabling act. Delegated legislation gives flexibility to law and
there is ample scope for adjustment in the light of experiences gained during the working of
legislation.

DELEGATED LEGISLATION DIFFERENTIATED FROM

EXECUTIVE LEGISLATION

Delegated legislation is different from executive legislation. Delegated Legislation stands for
laws made by the authorities other than the legislative bodies on whom the legislature delegates
its legislative powers. The executive legislation stands for laws made by the President and the
Governor respectively under Articles 123 and 213 of the Constitution of India. These laws are in
the form of ordinances which have the force of law. Such ordinances are issued by the respective
executive heads on the ground of urgency when legislature is not in session and they cease to
have effect if not ratified within six weeks after the assembly of the legislature.

GROWTH OF DELEGATED LEGISLATION

1. The newly developed concept of welfare state has caused tremendous increase in the
work of the government which necessitated a huge bulk of legislation. The Parliament
hardly has time to deal with this wide range of legislation efficiently and therefore, it
concentrates only on defining the essential legislative principles and leaves the details to
be worked out by the executive.
2. The Parliament found it difficult to lay down details especially in certain fields of
technical nature and therefore, entrusted this task to the departments and ministers
concerned.

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 3. Besides the pressure of work on the Parliament and lack of adequate technical knowledge
about certain subjects, delegated legislation is also deemed necessary to meet unforeseen
contingencies.
4. Delegated legislation is further deemed necessary to meet the cases of emergency arising
out of war, insurrection, floods, economic depressions, etc.4

CONTROLS OVER DELEGATED LEGISLATION

Direct Forms of Control:

1. Parliamentary Control
2. Parliamentary Supervision

Indirect Forms of Control:

1. Judicial Control- This is an indirect form of control. Courts cannot annul subordinate
enactments but they can declare them inapplicable in special circumstances. By doing so, the
rules framed do not get repealed or abrogated but they surely become dead letter as they become
ultra vires and no responsible authority attempts to implement it.

2. Trustworthy Body of Persons- Some form of indirect control can be exercised by entrusting
power to a trustworthy body of persons.

3. Public Opinion can also be a good check on arbitrary exercise of Delegated Powers. It
can be complemented by antecedent publicity of the Delegated Laws.

NEED FOR DELEGATED LEGISLATION

4
http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf.

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Delegated legislation means that the Government can make changes to a law without the need
for a completely new Act of Parliament. Delegated legislation means that Parliament does not
have to take too much time out of its timetable to deal with every minute detail of the Act, it can
concentrate on the aims of the Act. The technical knowledge of experts can be used and
consultation can be made with the relevant interested parties. Delegated legislation can be passed
quickly and can be used to deal with emergency situations such as the Foot and Mouth epidemic.
Delegated legislation is more flexible and can be amended more easily and quickly. Delegated
legislation allows more precise and accurate detail to be added at a later date. Finally, local
people with local knowledge can deal with matters which have an affect on their local area in the
form of bylaws. It is probably too simplistic to say that Parliament does not have the time to
make endless legislation. Parliament only has a limited amount of time so there is a need for
other bodies to create delegated legislation. One could argue that the government should be able
to manage the programme of legislation that it wishes to introduce, and this will involve being
practical about the amount of legislation that can realistically be included in any programme.

LEGISLATION OVER PRECEDENTS:

1. Abrogation- By exercising the power to repeal any legislation, the legislature can abrogate
any legislative measure or provision that has become meaningless or ineffective in the changed
circumstances. Legislature can repeal a law with ease. However, this is not the situation with
courts because the process of litigation is a necessary as well as a time-consuming process.

2. Division of function- Legislation is advantageous because of division of functions.

Legislature can make a law by gathering all the relevant material and linking it with the
legislative measures that are needed. In such a process, legislature takes help of the public and
opinion of the experts. Thus, public opinion also gets represented in the legislature. This cannot
be done by the judiciary since Judiciary does not have the resources and the expertise to gather
all the relevant material regarding enforcement of particular principles.

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3. Prospective Nature of Legislation- Legislations are always prospective in nature. This is
because legislations are made applicable to only those that come into existence once the said
legislation has been enacted. Thus, once a legislation gets enacted, the public can shape its
conduct accordingly. However, Judgments are mostly retrospective. The legality of any action
can be pronounced by the court only when that action has taken place. Bentham once said that
“Do you know how they make it; just as man makes for his dog. When your dog does something,
you want to break him off, you wait till he does it and beat him and this is how the judge makes
law for men”.5

4. Nature of assignment- The nature of job and assignment of a legislator is such that he/she is
in constant interaction with all sections of the society. Thereby, opportunities are available to
him correct the failed necessities of time. Also, the decisions taken by the legislators in the
Legislature are collective in nature. This is not so in the case of Judiciary. Sometimes, judgments
are based on bias and prejudices of the judge who is passing the judgment thereby making it
uncertain.

5. Form- Enacted Legislation is an abstract proposition with necessary exceptions and

explanations whereas Judicial Pronouncements are usually circumscribed by the facts of a
particular case for which the judgment has been passed. Critics say that when a Judge gives
Judgment, he makes elephantiasis of law.

LEGISLATION OVER CUSTOMS:

1. Legislation has its source in theory whereas customary law grows out of practice.
2. The existence of Legislation is essentially de Jure whereas existence of customary law is
essentially de Facto.
3. Legislation is the latest development in the Law-making tendency whereas customary law is
the oldest form of law.
4. Legislation is a mark of an advanced society and a mature legal system whereas absolute
reliance on customary law is a mark of primitive society and under-developed legal system.

5
http://www.desikanoon.co.in/.

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5. Legislation expresses relationship between man and state whereas customary law expresses
relationship between man and man.
6. Legislation is precise, complete and easily accessible but the same cannot be said about
customary law. Legislation is jus scriptum.
7. Legislation is the result of a deliberate positive process. But customary law is the outcome of
necessity, utility and imitation.

CONCLUSION
Legislation is, now, the most prolific and direct source of law. Law is regarded as the expression
of the will of the people and the will of the people is expressed through legislative assemblies
which are representative bodies. All other means of making laws have now been swallowed up
by this modern method of legislation. Custom and equity are being replaced by definite
legislative acts. The codification of law has limited the scope of judicial decisions, and scientific
commentaries are used simply to discuss cases. Legislation has, thus, tended to supplant other
sources of law. But we cannot ignore the practical utility of customs, equity, religious practices
and judicial decisions. Though all these forces have not remained direct sources of law, yet they
constantly influence its formulation.

Woodrow Wilson has beautifully expressed his views on the process of the development of law.
He says, “Custom is the earliest fountain of law but religion is a contemporary, an equally
prolific, and in the same stages of national development, an almost identical source.

Adjudication comes almost as authority itself, and from a very antique time goes hand in hand
with equity. Only legislation, the conscious and deliberate organisation of law, and scientific
discussion, the development of its principles, await an advanced stage of its growth in the body-
politic to assert their influence in law-making.”

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 BIBLIOGRAPHY

1. Dr. B.N. Tripathi: Jurisprudence: Legal Theory, Allahabad Law Agency, Allahabad.
2. Dr. N.V. Paranjape: Studies in Jurisprudence and Legal Theory, Central Law Agency,
Allahabad.
3. http://www.desikanoon.co.in/.
4. Austin: Jurisprudence, Vol. III, p. 555.

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