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QUAID E AZAM LAW COLLEGE LAHORE

LLB-III

ENGLISH JURISPRUDENCE

LEGISLATION AS A SOURCE OF LAW

Ms. Amna B. Malik

1. INTRODUCTION
Legislation is that source of law which consists in the declaration of legal rules by a
competent authority. It is the laying down of legal rules by a sovereign or subordinate
legislator.

2. DERIVATION

Legislation

Legis Latum

Law Process

Law making process

3. INTERPRETATION OF TERM

LITERAL MEANING:
An act or process of legislating

LEGAL CONNOTATION
“The process of making or enacting the positive law in written form according to some type
of formal procedure by branch of government, constituted to perform this process”

Black’s Law Dictionary, 11th Edition, page 1038

4. JURISTIC EXPOSITION

Austin (1790-1859)
“There can be no law without legislative act”

Gray
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“The formal utterances of the legislative organs of the society”

Holland (1835-1926)

“The making of general orders by our judges is as true legislations carried on by the crown.”

Salmond (1862-1924)

“The source of law which consist in the declaration of legal rules by competent authority”

5. VIEWS OF DIFFERENT SCHOOLS

Legislation as a source of law many be discussed by analyzing the following

approach.

I. Analytical Approach:

The view of the analytical school is that typical law is a statute and legislation is the normal
process of law making. They neither approve of the usurpation of the legislative functions by the
judiciary, nor considered custom as a source of law.

II. Historical Approach:

The view of the Historical school is that legislation is the least creative of the sources of law. It
has no independent creative role at all. Its only legitimate purpose is to give better from and made
more effective the custom.

Criticism:

Both analytical and Historical school goes to extremes. The mistake by the analytical school is
that, it regards legislation as a sole source of law and does not attach any importance to the
custom and precedent. The mistake of the Historical school is that, it does not regard legislation as
a source of law.

According to Dean Pound:

Legislation is of two types, organizing and creative. The existence of the creative cannot be
doubted in modern times when there is abnormal legislative activity.

6. LEGISLATION IN STRICT AND WIDER SENSE

Wider sense:

It includes all methods of law making where ever law making process is in progress that is
called legislation

Strict sense:
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Only the law making by sovereign or subordinate

7. KINDS OF LEGISLATION

SUPREME LEGISLATION SUBORDINATE LEGISLATION

Colonial Executive Judicial Municipal Autonomous

8. SUPREME LEGISLATION
According to Salmond:
“Legislation is either Supreme or Sub-ordinate. 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.

According to Austinian Theory:

It is logically impossible for there to be any legal limitations on the sovereign authority.
Sovereign on Austin’s definition owes obedience to on one.

For instance:

In England, Parliament is the supreme legislation authority. An Act of parliament

cannot be held void for unreasonableness or it seems upon any other ground.

The Parliament of Pakistan, possess the power of supreme legislation.

9. SUBORDINATE LEGISLATION
Subordinate legislation is that which proceed from any authority other than the
sovereign power and is therefore dependent for its continued existence and validity on some
superior authority.
Example:
Legislation made by the Municipal Corporation is the subordinate legislation.

Kinds of Legislation:
Salmond refers to five kinds of subordinate legislation which are discussed as below.
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10. COLONIAL LEGISLATION

The power of self-government entrusted to the colonies and other dependencies of the crown
are subject to the control of the impartial legislation which may repeal, alter or supersede any
colonial enactment.
However it is be noted, that after passing of The Statute of West Minster Of 1931, the
dominion legislation have been given powers to make may any law they please.

For instance:
In Fisher v. Lane 1772,
It was stated that ‘the colonies could not 'make a law contrary to the law of England,
but they may make any law agreeable thereto, and to the principles of justice, but not contrary
to the principles of justice'

11. EXECUTIVE LEGISLATION

The legislature quite often delegates its rule making power to certain department of the Executive
organ of the government. The laws made by the executive body in order to regulate the
administrative functions of the state. The Executive may also frame detailed rules and legislation
as supplementing the statutory provisions of the legislature. There are certain checks or control on
executive legislation vie.

(a) Parliamentary control which can modify, amend or refuse altogether the powers.

(b) Parliamentary supervision

(c) Judicial control

(d) Power must be handed over to trustworthy persons.

(e) Public opinion

(f) Experts opinion

For instance:
- Government agencies and regulators are sometimes given the power to make delegated
legislation.
- The Commissioner of Taxation, for example, has statutory powers to make certain rules
and regulations.
- Under A New Tax System (Goods and Services Tax) Act 1999, the Commissioner of
Taxation may make certain determinations in relation to how much GST is payable on
taxable importations.

12. JUDICIAL LEGISLATION

The Superior Courts [Constitutional/ Appellate/ Higher] have the power of making rules for
the regulation of their own procedure these rules are termed as judicial legislation.
For instance:
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- High Court Rules and Orders, 1963

- Supreme Court Rules, 1980

Difference between Judicial Legislation and Precedent

Judicial Legislation is procedural rules to apply administratively whereas

Precedent is a decision of a Higher Court in any case before it.

13. MUNICIPAL LEGISLATION

Municipal authorities are entrusted by the law with powers of establishing special law
for the districts under their control called municipal legislation. These are legislation of local
bodies such as municipal or corporations.
For instance:
- The Municipal Corporations Act, 1882
- Public Health Act, 1875-76

14. AUTONOMOUS LEGISLATION

These are the formal utterances of private persons or groups of them who are given a
limited legislative authority to make laws which concerns them

For instance:
- The Lahore Development Authority
- Railway companies in UK
- Universities

Both Salmond and Gary have held that Autonomous Legislation is not properly speaking
statutory law of the state at all, although it is law within the community which has imposed it.

15. Differences between Supreme Legislation and Subordinate Legislation are as follows:
Supreme Legislation

a. Salmond defines: “Supreme legislation proceeds from the supreme or sovereign power in
the state, and which is therefore incapable of being repealed, annulled or controlled by
any other legislative authority”.
b. Supreme legislation is one and parliament has the supreme authority.
c. It cannot be repealed, annulled or controlled by any other legislative authority, except
parliament.

Subordinate Legislation

a. Salmond defines: “Subordinate legislation is that which proceeds from any authority
other than the sovereign power, and is therefore dependent for its continued existence and
validity on some superior or supreme authority”.
b. Subordinate legislation is of several kinds. All other forms of legislative activity
recognized by the law are subordinate legislation.
c. It can be repealed, annulled or controlled by parliament.
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16. Advantages Of Legislation Over Precedents:

i. Abrogative power:
Legislation has abrogative power. It can abolish the existing law, which necessary for
legal reform. Precedent dose not enjoy the abrogative power and it cannot reverse the
existing law.
ii. Accessibility:
Statute law is easily accessible and therefore everyone may consult the law affecting
themselves. If law is accessible, people will come to know what it is and are therefore
more likely to follow it.
iii. Benefits to lawyers/profession:
The logically articulated skeleton of the law due to codified legislation makes it easy
even for lawyers to extract the principles of law.
iv. Advantage of efficiency:
In legislation, the doctrine of separation of power results in increased efficiency. The
duty of making laws is reserved for the legislature, while that of interpreting it for the
judiciary so in case of precedents, the functions of legislation and interpretation are
combined and that is hardly desirable.
v. Satisfaction of principle of natural justice:
Legislation satisfies the requirement of natural justice that laws should be known
before they are enforced. Law is formally declared to the proper and will be subject to
punishment if they violate the same. In case of precedent, it is created and declared in
the very act of applying and enforcing it.
vi. Law for future cases:
Legislation can make rules for cases that have not yet arisen, but precedent must wait
until the actual concrete incident comes before the Courts for decision.
vii. Power to make anticipatory rules:
New points may be arisen in both a statute and case law. There may be an omission
which has to be made good or a doubt to be settled or a defect cured. Legislature can
settle this in on time, when its existence is brought to its notice. But precedent must
wait, until by chance, the very case arises or the decision is challenged in a superior
Court.
viii. Superior in form:
Legislation is superior in form to precedent. It is brief, clear easily accessible and
knowable while the quest for the principle of law in a judicial decision entails a long
search through multitudinous reports.
ix. General Supremacy over precedent:
Legislation is a superior over precedent as law can be made against some precedent
but the precedent cannot exist opposed to statute law.
x. Suitable for fact changes:
Legislation is some suitable for fast changes which time needed. According to Prof.
Friedman “It will be difficult to deny that in modern circumstances development of
law through precedent is slow, costly, cumbrous and often reactionary. It is therefore
less suitable for a time of fast changes and restlessness.
xi. Collective/socialist measures can be undertaken:
Legislation allows the government to undertake collective welfare schemes through
welfare laws. Common law which is based upon individualism is incapable of doing
so.
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xii. Democratization of law:

The pro legislation proponents argue that it is the People who elect the Parliament
which in turn makes the law; therefore indirectly it is the people who make the law. It
is further argued that “what you yourself make, you tend to obey”.
xiii. General in application:
Judge-made-law is specific and deals with particular circumstances. Legislation lay
down general rules and therefore, wider ranges of cases are covered.
xiv. Codified law:
D.D. Field in his book Codification argues that no country which has once exchanged
codified law for the unwritten law has ever changed back which means that codified
law is good or better compared to judge-made law and constitutes a step forward in
the development of the legal system.
xv. Initiating change:
Many a times the government wishes to initiate change in society, which it is unable
to do without legislation. As we know, sudden and drastic changes do not take place
in society very quickly, for mankind by its inherent nature is averse to change.
xvi. No slavish obedience:
Friedman points out that just because there is a code, it does not mean that a judge
has to obey it like a slave. Judicial discretion and maneuverability exists in a spite of
codes.
xvii. Unification:
Codes are also useful in unifying diverse jurisdictions.
xviii. Logical arrangement:
Codified laws can be arranged in a simple, coherent and logical manner. They may
further, be indexed and therefore there is case of reference which in turn saves time
and is simpler to understand.
xix. Bulk is reduce:
Common law as enunciated in precedent is too bulky as there is a multiplication of
cases and a maze of precedents. Statute law is in general, brief; while case law is
buried from sight and knowledge in the mass of records of bygone litigation.
xx. Functions of legislature:
Legislature attends to the work of legislation and judiciary attends to the work of
interpreting and applying law.

17. Disadvantages of legislation:

i. Rigid:
It is not possible to legislate on every possible legal situation. Unforeseen situations
will always come-up which have not been incorporated into the code/legislation.
ii. Not reduced to simple language:
Technical matters cannot be reduced into simple language.
iii. Approved/Accepted:
A code takes years to be drafted, approved, accepted etc. in the meantime, society
goes ahead.
iv. Codes can be misused:
Badly written codes can be misused by bad elements of society.
v. Uncertainty:
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An ambiguous code or legislation leads to uncertainty, until that ambiguity is clarified

by the court.
vi. Complex legislative process:
A code once enacted can be changed only by a very complex legislative process.
vii. Difficult language:
Codes written in a language alien to the masses do not serve the purpose.
viii. Politically volatile issue:
The choice of the people who will draft the code is always a politically volatile issue and
allegations of bias are heaped.
18. CONCLUSION