Jurisprudence
Legislation as a Source of Law
At a Glance ▪ The word comes from legis (of law, genitive of lex) and latum (laid down, the supine of ferre): the laying down of law. Salmond: legislation is 'that source of law which consists in the declaration of legal rules by a competent authority'. ▪ Supreme legislation cannot be repealed or controlled by any other legislative authority; subordinate legislation (colonial, executive, judicial, municipal, autonomous) depends on a superior authority. Indian legislatures are not supreme in the Austinian or English sense: they are bound by the Constitution and judicial review. ▪ Salmond's advantages of legislation over precedent: abrogative power, efficiency through division of labour, formal declaration before application, prospective operation, provision for cases not yet arisen, and better form and accessibility. ▪ Bentham coined the word codification; Austin favoured codes; Savigny opposed Thibaut's proposed German code (1814). India's codes began with the First Law Commission (1834, Macaulay); the BNS (2023) now replaces the IPC. ▪ Delegated legislation is inevitable but controlled: parliamentary, procedural and judicial controls; essential legislative functions cannot be delegated (In re Delhi Laws Act, 1951). ▪ 'Judicial legislation' has two senses: rules of court made by judges under delegated power, and judge-made law through precedent. Keep them apart. |
Custom is like a footpath across a field: no one plans it, but it forms as people walk the same way for years. Precedent is like widening that path one step at a time, each time someone stumbles. Legislation is like a planned road: an authority sits down, surveys the ground, decides where the road should go, and builds it in one go, even across land where nobody has walked before. That is its power and its danger. A road can open up whole new areas and replace old paths at a stroke, but a badly planned road, drawn on a map by people who never walked the field, can go nowhere. This note explains legislation as a source of law, its kinds, its merits against precedent, codification, delegated legislation and the question whether judges legislate.
Figure: The kinds of legislation in Salmond's scheme: supreme legislation, and the five kinds of subordinate legislation (colonial, executive or delegated, judicial, municipal, autonomous) that depend on it
1. Meaning and Definitions
Textbooks derive legislation from the Latin legis, 'of law' (the genitive of lex), and latum, 'laid down' or 'carried', the supine of ferre, to bear. It means the laying down of law. In the wide sense, every method by which law is made, including judicial decision and custom, may be called legislation. In the strict and proper sense it means the deliberate making of law by an authority competent to make it, expressed in an authoritative written form. It is the most direct of the sources: the rule is created consciously, stated in a text, and given force from a fixed date.
Classic Definitions ▪ Salmond: 'Legislation is that source of law which consists in the declaration of legal rules by a competent authority.' ▪ Austin: all law is the command of the sovereign; legislation is its direct and proper expression, and judge-made law exists only by the sovereign's tacit permission. ▪ Gray (The Nature and Sources of the Law, 1909): legislation means the formal utterances of the legislative organs of society; for Gray a statute is a source of law, which becomes law when applied by the courts. ▪ Bentham: legislation is the science and art of making good laws, guided by the principle of utility; he called censorial jurisprudence the art of legislation. |
2. Supreme and Subordinate Legislation
Salmond divided legislation into two kinds. Supreme legislation proceeds from the sovereign power in the State and cannot be repealed, annulled or controlled by any other legislative authority. Subordinate legislation proceeds from an authority other than the sovereign power and depends for its continued existence and validity on some superior authority. The classic model of supreme legislation is the Parliament of the United Kingdom, which in Dicey's account can make or unmake any law, and whose Acts no court may set aside.
This picture must be qualified for India. Parliament and the State legislatures are 'supreme' only in the limited sense that, within their constitutional fields, no other legislative body can override their Acts. They are not sovereign in the Austinian or English sense. Their powers are divided by Arts. 245 and 246 and the Seventh Schedule; their Acts are void if they violate fundamental rights (Art. 13(2)); and even Parliament's power to amend the Constitution cannot destroy its basic structure (Kesavananda Bharati, 1973). Indian courts can and do strike down Acts of Parliament. The truly supreme source in India is the Constitution itself (Note 38 on sovereignty).
The kinds of subordinate legislation
Salmond's five kinds ▪ Colonial legislation. Law made by a colony's legislature, subordinate to the imperial Parliament. Historically important for British India; of no present force. ▪ Executive (delegated) legislation. Rules, regulations, orders and notifications made by the executive under powers delegated by statute. The largest category today. ▪ Judicial legislation (rules of court). Rules of procedure framed by the higher courts under constitutional or statutory power, such as rules made by the Supreme Court under Art. 145 or by High Courts under the Code of Civil Procedure. ▪ Municipal legislation. Bye-laws made by municipalities, panchayats and other local bodies for their areas under statutory authority. ▪ Autonomous legislation. Rules made by autonomous bodies, such as universities, companies (articles of association) and registered societies, for their own affairs within the powers the law allows. Salmond counted this in the class of subordinate legislation. |
A warning about 'judicial legislation'. The phrase has two senses. In Salmond's scheme it means rules of court, a kind of subordinate legislation made under delegated power. In ordinary usage it means judge-made law, the creation of new rules through precedent and interpretation, as in Vishaka (1997). An answer must make clear which sense it uses.
3. Legislation and Precedent Compared
Salmond set out the advantages of legislation over precedent, and they remain the standard exam answer.
Salmond's advantages of legislation ▪ Abrogative power. Legislation can repeal or amend existing law, including bad precedent, at a stroke; precedent can only be undone slowly by higher courts, and cannot override statute. ▪ Efficiency: division of labour. The legislature makes law and the courts apply it, so each function is performed by the body best suited to it. ▪ Formal declaration before application. Legislation is made and published before it is applied, so people know the rule in advance; case law is declared in the very act of applying it to parties. ▪ Prospective operation. Legislation normally operates for the future; precedent operates retrospectively on the parties to the case. ▪ Provision for cases not yet arisen. The legislature can anticipate situations; courts must wait for a dispute to come before them. ▪ Form and accessibility. Statutes are brief, clear, systematic and easily found; case law lies scattered in a mass of reports and must be extracted from reasoning. |
Precedent has counter-advantages. It grows out of real facts rather than abstract prediction; it is flexible and can adapt to new situations case by case; it is made by trained lawyers with the benefit of full argument; and it avoids the rigidity and hasty drafting that can mar legislation. The historical school valued exactly these qualities, and Savigny thought his age unfit to legislate. The two sources are complementary: legislation makes broad policy and reform; precedent refines and adapts it (Note 24).
Basis | Legislation | Precedent |
|---|---|---|
How made | Deliberately, by a competent authority | Incidentally, in deciding a dispute |
Time of operation | Prospective, declared in advance | Retrospective as between the parties |
Power to abrogate | Can repeal statutes and overrule precedent | Cannot override statute; overruling is slow |
Form | Abstract general rules in an authoritative text | Principles drawn from concrete facts |
Strength | Certainty, reform, accessibility | Flexibility, closeness to real facts |
Weakness | Rigidity; risk of hasty drafting | Bulk; uncertainty; dependence on litigation |
Against custom, legislation is deliberate and fast where custom is slow and unconscious, and in a conflict valid legislation prevails. Custom, however, stays close to the life of the people, which is why the historical school preferred it (Note 25).
4. Codification
Codification is the reduction of the whole law on a subject, from statute, precedent and custom, into a single systematic and authoritative code. Bentham coined the word and spent much of his life urging codes on governments across the world. Austin also favoured codification. On the Continent, the famous controversy of 1814 set Thibaut, who called for a general civil code for Germany, against Savigny, whose pamphlet On the Vocation of Our Age for Legislation and Jurisprudence opposed codification as premature: law grows from the Volksgeist and cannot be manufactured (Note 13). Germany eventually enacted its Civil Code (BGB) in 1896, in force from 1900.
Code or event | Date | Significance |
|---|---|---|
Justinian's Corpus Juris Civilis | 529 to 534 | Code, Digest, Institutes (and later the Novels); the model for European law |
Code Napoleon (French Civil Code) | 1804 | The model modern civil code |
Thibaut and Savigny controversy | 1814 | The debate over whether Germany should codify |
First Indian Law Commission (Macaulay) | 1834 | Drafted the Indian Penal Code (enacted 1860) |
Indian Contract Act and Evidence Act | 1872 | Codification of major branches of private and procedural law |
Bharatiya Nyaya Sanhita | 2023 (in force 1 July 2024) | Replaced the IPC, with the BNSS and BSA replacing the CrPC and Evidence Act |
Codification and consolidation differ. Codification states the whole law on a subject, drawing on unwritten as well as written law, and often reforms it; the Hindu Succession Act, 1956 describes itself as an Act to amend and codify the law of intestate succession among Hindus. Consolidation only gathers the scattered statutes on a subject into one Act, with at most minor amendment; the Code of Civil Procedure, 1908 is described as an Act to consolidate and amend the laws relating to the procedure of the civil courts. The merits of codification are certainty, accessibility, systematic arrangement and the chance to reform. Its demerits are rigidity, the risk of freezing law, and the fact that a code soon gathers its own case law, as the history of the IPC shows.
5. Delegated Legislation
Delegated legislation is the rules, regulations, orders, notifications and bye-laws made by the executive or other bodies under power conferred by a statute (the parent Act). It now far exceeds primary legislation in volume.
Why delegated legislation has grown ▪ Pressure on legislative time. The legislature cannot enact every detail of a welfare State. ▪ Technicality. Detailed rules on subjects such as drugs, telecommunications or finance need expert knowledge. ▪ Flexibility and speed. Rules can be changed quickly to meet changing conditions and emergencies. ▪ Experiment and unforeseen situations. The executive can try out and adjust schemes, and deal with contingencies the legislature could not foresee. |
Control | How it works | Indian illustration |
|---|---|---|
Parliamentary | Rules are laid before the House (simple laying, or subject to affirmative or negative resolution) and scrutinised by committees | Committees on Subordinate Legislation of each House |
Procedural | Prior publication, consultation of affected interests, and official publication before rules take effect | Section 23 General Clauses Act, 1897 (previous publication); Harla v State of Rajasthan (1951): an unpublished law does not bind |
Judicial | Courts strike down rules that are ultra vires the parent Act, violate the Constitution, or rest on excessive delegation | In re Delhi Laws Act (1951); Hamdard Dawakhana (1960); Indian Express (1985) |
A Henry VIII clause is a provision in a parent Act that allows the executive, by delegated legislation, to amend or repeal the parent Act itself or other statutes. The name recalls the Statute of Proclamations (1539), which gave Henry VIII's proclamations the force of statute. Such clauses are viewed with suspicion because they let the executive alter primary law. Indian statutes often contain a narrower removal of difficulties clause, which courts read strictly so that it cannot be used to change the essential features of the Act.
In re Delhi Laws Act Supreme Court of India, 1951 (7 judges) On a Presidential reference, the Court held that the legislature may delegate subsidiary and ancillary powers but cannot delegate its essential legislative function, which is to determine legislative policy and enact it as a binding rule of conduct. A power to extend laws with modifications was upheld, but not a power to repeal or alter existing law in force. |
Hamdard Dawakhana v Union of India Supreme Court of India, 1960 A provision of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 allowed the Central Government to add diseases to the list for which advertisements were banned, without any guiding policy. The Court struck it down as excessive delegation: the legislature must lay down policy and standards. |
Gwalior Rayon Silk Manufacturing Co. v Assistant Commissioner of Sales Tax Supreme Court of India, 1974 The Central Sales Tax Act linked the rate of tax on certain sales to the rate fixed by the State. The majority upheld it, finding sufficient policy and guidance in the Act. Mathew J, concurring, took the view that there is no abdication so long as the legislature retains the power to repeal the delegation, a wider test that the Court has not generally adopted. |
Indian Express Newspapers v Union of India Supreme Court of India, 1985 Examining customs notifications on newsprint, the Court held that subordinate legislation does not enjoy the same immunity as a statute of a competent legislature. It may be challenged on any ground available against plenary legislation, and also for being ultra vires the parent Act or manifestly arbitrary. |
6. Do Judges Make Law?
The declaratory theory, stated by Hale and Blackstone, held that judges do not make law but only discover and declare a law that already exists; Blackstone called judges the 'living oracles' of the law. A decision that is overruled was therefore never law at all. Austin ridiculed this as 'the childish fiction employed by our judges, that judicial or common law is not made by them, but is a miraculous something made by nobody', merely declared from time to time. The modern view is that judges do make law, but interstitially: within the case, incrementally, subject to statute. Indian courts have openly used law-making devices such as prospective overruling (Golak Nath, 1967) and binding guidelines (Vishaka, 1997), while also warning against overreach.
Vishaka v State of Rajasthan Supreme Court of India, 1997 Finding no law on sexual harassment at the workplace, the Court laid down guidelines, drawing on CEDAW, to be treated as law declared under Art. 141 until Parliament legislated. It is the leading example of judge-made law in the second sense, later replaced by the POSH Act of 2013. |
Divisional Manager, Aravali Golf Club v Chander Hass Supreme Court of India, 2008 Setting aside a direction to create posts and regularise workers, the Court warned that judges must exercise judicial restraint and must not encroach on legislative or executive functions, such as creating posts, on the ground that the other organs have failed. It is the counterweight to Vishaka. |
7. Evaluation
Legislation is the dominant source of modern law because only it can reform whole areas of law at once, operate prospectively and give people clear notice. Its weaknesses are rigidity and poor drafting, and the growth of delegated legislation shifts real law-making to the executive, which is why controls matter. In India, legislation is itself subordinate to the Constitution, and the courts both supplement it (Vishaka) and police its limits (Delhi Laws Act, Hamdard Dawakhana), while recognising their own limits (Aravali Golf Club).
Memory Aid ▪ Analogy: road versus footpath. Legislation is a planned road built in one go; custom is a footpath worn by use; precedent widens the footpath step by step. ▪ Salmond's six advantages: 'All Efficient Drafters Plan Perfect Forms'. Abrogative power; Efficiency (division of labour); Declaration before application; Prospective operation; Provision for cases not yet arisen; Form and accessibility. ▪ Five subordinate kinds: 'Can Every Judge Make Amendments?' Colonial, Executive, Judicial, Municipal, Autonomous. ▪ Codification: 'Bentham named it, Austin backed it, Savigny blocked it'. |
Exam Corner: Likely Questions ▪ Define legislation. Distinguish supreme and subordinate legislation. Is the Indian Parliament a supreme legislature? ▪ Discuss the advantages of legislation over precedent, as stated by Salmond. ▪ What is delegated legislation? Explain the reasons for its growth and the controls over it, with Indian cases. ▪ Examine codification with reference to Bentham, Savigny and the Indian experience. |
Exam Corner: MCQ Traps ▪ The word codification was coined by Bentham. Savigny opposed codification; Thibaut proposed it. ▪ The First Indian Law Commission (1834) was headed by Macaulay; the IPC was enacted in 1860 and is now replaced by the BNS. ▪ In re Delhi Laws Act (1951): essential legislative functions cannot be delegated. ▪ 'Childish fiction' (of the declaratory theory) is Austin's phrase. ▪ Latum is the supine of ferre; legislation literally means the laying down of law. |
8. Frequently Asked Questions
Q. Is the Indian Parliament a supreme legislature?
A. Only in a limited sense. Within its constitutional field no other legislative body can override its Acts, but it is bound by the Constitution: its laws may be struck down for violating fundamental rights or the division of powers, and its amending power cannot destroy the basic structure.
Q. What is the difference between codification and consolidation?
A. Codification states the whole law on a subject, from all sources, in one systematic code and often reforms it. Consolidation merely gathers existing statutes on a subject into one Act with little or no change of substance.
Q. What is a Henry VIII clause?
A. A provision allowing the executive, by delegated legislation, to amend or repeal the parent Act or other statutes. It is named after the Statute of Proclamations (1539) and is treated with suspicion because it lets the executive alter primary law.
See also: Note 22 (sources of law), Note 24 (precedent), Note 25 (custom), Note 42 (interpretation).
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