Sources of Law Legislation Precedents Customs

Etymologically, legislation denotes the making or setting of law.

Basically, it is the laws as promulgated by the parliamentarians/legislators in the governing body i.e. Parliament of India at the Union level / State Legislature at the State level in case of India. In the words of renowned jurist Sir John William Salmond, legislation is that source of law which consists in the declaration of legal rules by a competent authority. John Austin, stated that ‘there can be no law without a legislative act’ meaning that the law is made by a supreme or a sovereign authority which must be followed by every stratum of the society.

 The clothing of Courts with power to try can only be done by law and the giving and defining of jurisdiction has always been recognised as the province of legislation. 

 Legislation is an expression of the general will of the people and is one of the main functions of the government, carried out for the purpose of authorising, regulating, sanctioning, granting, prohibiting, declaring, restricting etc.

The magnitude of legislation is evident from the very fact that on one hand it lays down the rules and regulations through the legislature and on the other hand it has authority of the State as such.

Further, it is reliable source of law as legislation is applicable, for social control; irrespective of the wrong done besides that the laws by virtue of legislation consider the changes in society. And in case legislation abridge the rights of individuals than they are subject to judicial reviews.

 Supreme and Subordinate Legislation

 Broadly, legislation is either supreme or subordinate. Supreme legislation is the one which proceeds from the sovereign power in the State and is checked and controlled by the sovereign only.

While the subordinate legislation proceeds from any authority subsidiary to supreme authority and is therefore, dependent on superior authority for its origin, existence and validity. Further, subordinate legislation may be colonial, executive, judicial, municipal, autonomous etc.

 As the British Parliament is sovereign, the laws enacted by it happen to be supreme legislation. In India, Parliament possesses the power of supreme legislation but the sovereignty of Parliament is subject to the Constitution of India, which is the hallmark for any law passed in our country, through judicial review.

Parliament has rights to amend the Constitution, but the modifications are valid subject to the framework of the Constitution itself. Thus, in spite of the parliamentary privilege to amend the Constitution, the Constitution itself remains supreme in India.

 Legislation and Custom

 The presence of legislation being written law (ius scriptum) is by the authority of State (de jure) and is thereby definite, while customs are unwritten law (ius non scriptum) wholly accepted in a particular boundary (de facto) and practiced for a long time. In primitive society, legislation was considered ancillary to customary law but in present times, it is other way round, because now customary law is considered auxiliary to the legislation as with the advancement of civilization, either they stand abrogated or embodied in legislation.

 As law, legislation controls the behaviour of the beings and maintains peace and harmony in the society. Although it is arguable issue whether legislation is superior source of law or not but legislation being codified and commanded by the sovereign, is today an authoritative source of law as it comes into being after ample debates, deliberations and discussions. To wrap up, Horace Gray has aptly said, legislation is ‘the formal utterances of the legislative organs of the society’.

 

Hart, H. L. A., Raz, J., & Green, L. (2012). The concept of law: Oxford university press.

Download Files

precedent.pdf (0.14 MB )