Legislation

SOURCES OF LAW
Legislation
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 Incapable of being repealed, annulled or controlled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.

CODIFICATION
Code 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 Codes
Savigny:
 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

Legislation

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