Legislation: Sources of Law | Jurisprudence - CLAT PG PDF Download

Sources of Law

The sources of law include codified laws, judicial precedents, customs, juristic writings, expert opinions, morality, and equity. With the rise of constitutionalism, legislations and precedents have become central to the sources of law. Let's explore these sources in detail.

Meaning

• The term "sources of law" varies in meaning among different writers.
• Positivists refer to the sovereign or the State as the source of law. The historical school looks at the origins of law, while others consider the causes or subject matter of law.
• Prof. Fuller, in his "Anatomy of the Law," explains that judges apply rules from various places known as "sources" to decide cases. Common sources include codified laws, judicial precedents, customs, juristic writings, expert opinions, morality, and equity.
• Holland defines sources of law as the sources of knowledge about law.

Classification

• Salmond identifies two main sources of law: formal and material.
• Formal sources are those from which law derives its validity and force, such as the will of the State expressed through statutes and judicial decisions.
• Material sources are divided into legal sources and historical sources.
• Legal sources include legislations, precedent, custom, agreement, and professional opinion. These are authoritative and followed by courts as a matter of right.
• Historical sources are originally found in an unauthoritative form and are later accepted as legal principles. For example, domestic precedents are legal sources, while foreign precedents are historical sources.
• Critics find Salmond's classification unsatisfactory, leading to a direct classification into legal and historical sources.

Keeton's Classification

• Keeton critiques Salmond's classification by defining sources of law as materials from which law is fashioned through judicial activity.
• He classifies sources into binding sources and persuasive sources.
• Binding sources, such as legislations, judicial precedents, and customs, must be followed by courts.
• Persuasive sources, like foreign precedents, professional opinions, and principles of morality or equity, come into play when there are no binding sources.

Legislation as a Source of Law

Definition of Legislation

• According to Salmond:"Legislation is that source of law which comprises in 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 examples of this school don't affirm that the courts additionally can figure law. They don't concede the case of custom as a wellspring of law. Consequently, they view just legislation as the form of law.
• According to the Historical School:"The legislation is the least innovative of the forms of law. The authoritative motivation behind the legislation is to give the better framework and increasingly viable the custom which is unexpectedly created by the general population." Historical School usually do not perceive the legislation as a form of law.

Types of Legislation

• Supreme Legislation: This type of legislation is adopted by the sovereign authority of the state and is considered supreme and legally powerful. There are no legal restrictions on its capacity. For example, the Indian Parliament has supreme legislative power, although its capacity is subject to constitutional amendments.
• Subordinate Legislation: This type of legislation is made by authorities other than the supreme authority of the state, under powers delegated by the supreme authority. Subordinate legislation owes its existence, legitimacy, and continuation to the supreme authority and can be canceled by it. It is also subject to parliamentary control. Subordinate legislation can be categorized into various types, including colonial legislation, executive legislation, judicial legislation, municipal legislation, and autonomous legislation.
• Colonial Legislation: Countries under the control of another state have no supreme power to make laws. Laws made by such countries, such as colonies, territories, or trust regions, are subject to the supreme legislation of the controlling state. For example, laws made by British colonies were subject to modification by the British Parliament.
• Executive Legislation: When legislative powers are delegated by the legislature to the executive, it is called executive legislation. The executive is primarily responsible for executing laws and managing the administration, but it operates under some subordinate legislative powers.
• Judicial Legislation: Powers granted to the judiciary to create and enforce their own laws to maintain transparency and independence in the judicial system. This ensures that no other government organ interferes in the governance of the judicial system.
• Municipal Legislation: Municipal bodies are empowered to create byelaws concerning local matters. Byelaws made by a municipal body operate within its designated area. In India, municipal bodies such as municipal corporations, municipal boards, and zila parishads have the authority to make such byelaws. There is also a move to grant extensive powers to Panchayats, potentially increasing this type of subordinate legislation.
• Autonomous Legislation: When the supreme authority delegates powers to a group of individuals to govern specific issues, the laws made by this group are known as autonomous laws, and the group is called an autonomous body. Examples of autonomous bodies include railways and universities, which have the authority to create byelaws for their governance.
• Delegated Legislation: Delegated (subordinate or subsidiary) legislation refers to laws made by individuals or bodies to whom Parliament has delegated law-making powers. Principal Acts may provide for subsidiary legislation and specify who can make laws under that Act. Delegated legislation ensures the effective implementation of the Act's provisions and may be regulated by Government Departments, Local Councils, or Courts. Common forms of delegated legislation include Rules, Statutory Rules, By-laws, and Ordinances.

Advantages of Legislation as a Source of Law

• Legislation involves the establishment of legal principles by legislative bodies, which the State recognizes as law.
• Legislation has the power and authority of the State behind it. According to Dias and Hughes, conscious law-making by a legitimate authority, i.e., the State, is called 'legislation,' provided that the sovereign is correctly recognized as the supreme power by the courts.

The relative merits of legislation over precedent and customs are discussed below:

Some main advantages of legislation are as follows:

• Abrogative Power—It can change or annul old law; which control isn't controlled by different sources.
• Effectiveness—It separates the elements of making law and overseeing it between the Legislature and the legal executive.
• Declaration—it gives that principles of law will be known before they are authorized.
• Reliance on Accidental Legislation—Legislation is independent and emerges out of as the authoritative source of law it need not hold up until the original case of legislation.
• Unrivaled in Form—It is predominant in structure, brief, clear, effectively available, and understandable as against case law, which is an increase of sense in a considerable amount of pointless issue.

Precedent and Legislation

• Legislation has its source in the process of law which is basically 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 by the assembly. However, precedents are made by the courts themselves.
• Legislation signifies 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 ordered before a case emerges. However, the precedent appears simply after the case has developed and taken for the choice of the court.
• Legislation is basically of an exhaustive structure while the extent of legal precedent is restricted to comparable cases as it were.
• Legislation is commonly and generally forthcoming while precedent is retrospective in nature.
• Legislation is announced or distributed before it is brought into power, on the other hand, precedent comes into power on the double, i.e., when the choice is articulated.
• Legislation is finished with the goal of the lawmaking process, yet it is not so on account of the precedent. The precedent which incorporates ratio decidendi and obiter dicta are expected to settle a particular contest on the purpose of law once for all.
• It isn't hard for people, in the general, to realize the law instituted by lawmaking body yet the precedent dependent on the case law isn't effectively known to the general population. Now and again, the attorneys who manage law are themselves oblivious about the current case-law. Therefore, it makes a precedent of an ambiguous nature.
• Legislation includes law-production by deductive strategy while case-law is made by resorting to an inductive technique.

Legislation and Custom

• The presence of legislation is basically by law, while customary law is wholly accepted in a particular boundary.
• Legislation is enacted out of hypothetical standards. However, customary law becomes is adopted because of its very well and long presence in history.
• Legislation as a source is indeed a long-lasting nature of law, as contrasted to the custom which is the most established type of law and is followed by a particular sect.
• The legislation is a fundamental characteristic for a present-day society while the customary law was created in a crude social order.
• Legislation is finished, exact, written in the structure and effectively open. However, customary law is generally unwritten am non-scriptum and is hard to follow.
• Legislation results out of the deliberations while custom develops inside the public in the ordinary course.

Demerits of Legislation

• Unbending nature—Law in the legislation is inflexible though the law in the precedents is versatile and adaptable.
• In view of Hypothesis—Legislation, for the most part, continues speculative certainties, by considering the existing environment and surrounding in which the established law is frequently observed to be blemished in its application to the mind-boggling issues emerging in genuine life though piece-scratches develop out of the commonsense exigencies and convenience.
• An excessive amount of Importance to the Wordings—Legislation appends a lot of significance to its wordings. Thus, if the articulation is faulty, the law gets effectively turned. In the precedents, the wording matters close to nothing as there is a genuine introduction which performs separate checks on the applicability of precedent as a source of law. Same goes with the customary law as well.

Conclusion

• Legislation is regarded as the most important source of law in contemporary times.
• It is the codified form of law mandated by the sovereign to the general populace.
• Despite its shortcomings, legislation is seen as the authoritative source of law.
• It is one of the primary and crucial sources of law in today's world, with most countries considering it an essential means of lawmaking.
• While there are gaps and shortcomings in the current form of legislation, the challenges faced are relatively less compared to those arising from other sources of law, such as custom and precedent.
• Legislation strives to bring uniformity by minimizing ambiguity