Legislation

SOURCES OF LAWLegislation

Dr.Rabbiraj.C

Legislation

Legislation is the source of law which consists of the

declaration of legal rules by a competent authority

Legislation is the laying down of legal rules by a

sovereign or subordinate legislator

Law that has its source in legislation may be most

accurately termed “enacted law” all other forms are

“unenacted”

KINDS OF LEGISLATION

SUPREME & SUBORDINATE LEGISLATION

DIRECT & INDIRECT LEGISLATION

DELEGATED LEGISLATION

CONDITIONAL LEGISLATION

Supreme Legislation: Legislation which proceeds from

the sovereign or supreme in the state

Incapable of being repealed, annulled or controlled

by any other legislative authority.

British parliament is true sovereign law making

body (No external restraint on absolute authority)

India-Parliament is sovereign but not supreme

although it possesses the power of supreme

legislation

Constitution is supreme, with true sovereignty

vesting in the people.

Subordinate Legislation: Legislation which proceeds from any authority other than sovereign power and is therefore dependent for its continues existence and validity upon some superior or supreme authority.

5 forms of subordinate legislations

(1)Colonial-powers of self government entrusted to colonies(2)Executive- Parliament delegates its rule making powers

to departments of the executive organ(3)Judicial-Superior courts making rules for regulation of

their own procedure.(4)Municipal-Municipal authorities law making powers for

the districts(5)Autonomous- eg., Railway companies, Universities.

DIRECT & INDIRECT LEGISLATION:

Direct Legislation:

Framing of laws by the legislature

Colonial legislation is a type of direct legislation

Indirect Legislation:

When legal principles are declared by some other sources

to whom law making power is confined by the legislature.

Except Colonial Legislation- All other forms of

subordinate are instances of indirect legislation.

DELEGATED LEGISLTION:When law making power confereed by the legislature upon some other body declare laws.

Growth of delegated legislation: Concept of Welfare State-more work-more

legislation-No time for parliament Difficult for parliament to lay down rules-Technical

in nature-delegated this work to departments & Ministers

Delegated legislation necessary to meet unforeseen contingencies

Flexibilty & Expediency-elements-good governance In cases-Emergency due to war-insurrection-floods

etc

CONDITIONAL LEGISLATION

1.Extend the operation of law to an area of territory

2.Determine the time of application of an Act to a given

area

3. Extend the duration of a temporary Act, subject to

minimum period fixed by legislature

4. Determine the extend & limits within with it should be

operative

5.Introduce a specail law if the contemplated situation

has arisen in the opinion of the government.

CODIFICATIONCode means:

A systematic collection of statues, body of laws, so

arranged as to avoid inconsistency and overlapping.

Compilation, promulgation, collection and

systematization of the body of law in a coherent form by

an authority in a state competent to do so.

Salmond : “ The reduction of the whole corpus juris so far

as practicable, in the form of enacted law”

Bentham: “A complete digest as such is the first rule.

Whatever is not in the code ought not be law”

CONDITIONS FOR CODIFICATION

Roscoe Pound:

Where legal institutions have become completely mature

or where the country has no juristic post, the non-

existence of such material.

Uncertainty & Archaic character of Law

Development of an efficient organ if legislation

The needs for one uniform law in a political

community whose several sub-divisions has developed or

received divergent local laws

CLASSIFICATION OF CODES

1.Creative : code which make laws for the first time

without any reference to any other law.

Eg., India Penal Code

2.Consolidating : code which consolidates the whole-

statutory, customary & precedent, on a particular

subject & declares it.

Eg., The Transfer of Property Act 1882

3.Creative & Consolidating: code which make law as well

as consolidate the existing law on a particular subject.

Merits

Certain

Simplicity

Logical Argument

Stability

Planned development

Unity

DEMERITS

Rigidity

Incompleteness

Hardship

Defective CodesSavigny: Incoherent & defective Not Necessary to produce code in an age which can

answer its needs Defects of law would become more obvious through

codification Due to codification existing rights & duties are disturbed