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Analysis of Legislation As a Source of Law

What is law?

The word law is derived from a Teutonic word Lag which means definite. On this basis it can be defined as defined rules and regulations which are need to be followed by the beings. Law is important in various parts in the lives of people and the system. A single word cannot suffice the characters of law. The law can be understood in relation to something or in an analogy. For example- law and temple, it can be said that both are built up so that one can attain peace and harmony in place. Law and love, both are inexpressible in nature that is they both cannot be explained in a word, but both of these affects the human actions.

A relationship can be drawn among law and ocean. Both law and ocean are immense and as a drop adds to the amount of water in the sea, similarly every judgment adds itself to numerous points of reference. Likewise, there is no existence without water, there is no existence without law.

Law helps in maintaining proper order in the society and prevents the happening of chaos in the system. The law not only provides rules and regulations which are need to be followed by the individual living in the society, but it also provides rights to its citizens, which can be enforced by the citizens without any exception or restrictions.

The rights of the citizens are given utmost preference by the law of any democratic country. While law provides the rights to be enforceable by the people associated with it, it also imposes some duties on its people which are to be followed by them without any excuse and exception (apart from those explicitly provided by the law). Apart from duties, law also provides sanctions and restrictions, that what people are not supposed to do.

There is no complete or perfect definition for the word law in the current scenario, because of its universal and dynamic nature, it is applicable to each and every thing in the universe and it keeps on changing according to the needs of the people and the system which governs them.

Still various authors and jurists tried to give definition of law in the most acceptable manner they can, given below are some of these definitions according to:
Sir John William Salmond[1]- Law may be defined as the body of principles recognized and applied by the state in the administration of justice. All in all, law comprises of rules perceived and followed up on by the Courts of Justice.

Oliver Wendell Holmes
[2]- The prophecies of what the courts will do in fact, and nothing more pretentious.

John Austin- Law is the aggregate set of rules set by a man as politically superior, or sovereign to men, as political subjects. Hence, this definition characterizes law as a bunch of rules to be trailed by everybody, paying little mind to their position.

Aristotle- As an embodiment of reasons whether in individual or the community.

Of all the definitions, Salmond's definition is considered the most apt definition. Still there is no complete and perfect definition of law.

Article 13 (3) of the Indian Constitution also defines law, it states- In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.[3]

Sources of Law

Each country's judicial structure has its own origin of laws, with some higher preference to on source than the others. According to the categories of the countries, they rely more on a particular source and give more preference to that source of law. Given below are some of the major or the primary sources of law:
  1. Legislation
    The term 'Legislation' originates from the Latin words 'Legis' which means guidelines or rules and 'latum' which means making. So, legislation can be said as a process of making of law, it is made by the parliament of any state or country and is binding on all. The legislation is considered an essential source of law in India, legislation has a wide ambit and it is utilized to manage, approve, to empower, to give grants, to endorse, to authorize, award, proclaim, or to limit. The governing body is outlined by the parliament as new acts, new laws, cancelation, and revision of old laws. The making process for this is in the constitution of India.

    According to Salmond: Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes, legal ground for their recognition as law: for the future by the tribunals of the state.[4]
  2. Legislation as a source of law is broadly classified in three types:
    • Supreme legislation:
      The Supreme legislation is the legislation embraced by the sovereign force of the state. As such, some different parts which are the organ of the state can't handle or check it. It is viewed as exceptional just as legally ground-breaking. There is no real limitation on its purview. Indian parliament is similarly transcendent. Despite the fact that there are distinctive established revisions upon its purview, it isn't dependent upon some other personnel inside the state. Along these lines, the sovereign locale of the state can't be disavowed, dropped, or compelled by some other legitimate organ of the state.
    • Subordinate legislation:
      Subordinate legislation is a legislation by some other authority than the Supreme expert in the state. It is made under the forces assigned by the Supreme power. Such legislation owes its existence, authenticity, and continuation to the supreme master. It very well may be dropped and revoked whenever by the intensity of the sovereign position and in this way, it should offer a way to deal with sovereign legislation. Subordinate legislation is obligated to parliamentary control. Sub categories or example of subordinate legislations can be- Colonial Legislation, Executive Legislation, Judicial Legislation, Municipal Legislation, Autonomous Legislation.
    • Delegated legislation:
       'Delegation' can be defined as a demonstration of entrusting an individual with the force or enabling him to follow up for that individual who has given him that power or to go about as his representative or delegate. 'Delegated legislation' signifies the practicing of administrative force by a specialist who is lower in position to the Legislature, or who is subordinate to the Legislature. 'Delegated legislation', moreover insinuated as helper legislation, is a sanctioning made by an individual or body other than Parliament.

      Parliament, through an Act of Parliament, can permit another person or someone to make sanctioning. An Act of Parliament makes the arrangement of a particular or specific law and will in general contain a diagram of the motivation behind the Act. By assigning the legislation by Parliament to the Executive or any subordinate, it enables various individuals or bodies to incorporate more subtleties to an Act of Parliament.

      Parliament thusly, through basic authorization (for instance an Act of Parliament), licenses others to make laws and rules through delegated legislation. The sanctioning made by an approved individual should be made according to the explanation set down in the Act of Parliament.
  3. Customs
    Customs are basically those non-codified guidelines that have procured official or compulsory character. In antiquated social orders, the customs were considered as quite possibly the main sources of law; indeed, it was considered as the genuine source of law. With the progression of time and the approach of current human advancement, the significance of custom as a source of law decreased and different sources, for example, legislations and judicial precedents came into being.

    A custom, to be legitimate, should be followed persistently for an exceptionally lengthy timespan with no interference. Further, a particular practice should be upheld for quite a while, yet it should likewise be upheld by the assessment of the overall population and ethical quality. Notwithstanding, every custom need not become law. For instance, the Hindu Marriages Act, 1955 disallows relationships that are inside the precluded levels of relationship. Be that as it may, the Act actually allows relationships inside the disallowed level of a relationship if there is a demonstrated custom inside a specific social group.

    Custom defined in the Case of Tanistry[5]: It is a jus non sciptum and made by the people in respect of the place where the custom obtains. For where the people find any act to be good and beneficial and apt and agreeable to their nature and disposition, they use and practice it from time to time, and it is by frequent iteration and multiplication of this act that the custom is made and being used from time to which memory runneth not to the contrary obtains the force of law.
  4. Judicial Precedents
    Another source of law is the court itself. Any higher court in this country giving a valid judgement in its jurisdiction, sets as a rules or guidelines for all those courts which are subordinate to it. According to this statement, if the apex court that is the Supreme Court of in India gives a judgement on a particular case then it will become the rule of law, and norms for all the other court subordinate to it in India.

    This notion is called as judicial precedent which is also a source of law. Judicial Precedents lays on the doctrine of 'stare decisis' which is also mentioned in Article 141 of the constitution[6], Law declared by Supreme Court to be binding on all courts. The law declared by the Supreme Court shall be binding on all courts within the territory of India for example, if the Supreme court settles on a specific case and a comparative circumstance goes to the lower court, the lower court will treat the case the same and pass the judgment same as done by the Supreme court.

    This is on the grounds that the Supreme court has started a trend for the lower court and the lower court will undoubtedly follow it. A judicial precedent can just make new law yet can't change a current one. They become possibly the most important factor just when there are loopholes in the current law. Its capacity is to fill the loopholes with new law. Where there is a settled guideline of law, the adjudicators will undoubtedly follow it.
  5. Other sources
    The Indian constitution lays down the various rules and laws, rights and duties which are available to the people associated with it. The constitution when drafted was a contribution of various other countries also. The Indian constitution framers picked up appropriate elements of constitution of various other countries and added it to the Indian constitution.

    Therefore, the constitution of other countries is also a source of law in India. For example- the concept single citizenship, rule of law was taken from the constitution of Britain.
    Some other sources also include, treaties, conventions, online and offline sources, legal opinions, religion etc. These are all the secondary sources of law.

Legislation: A comparative Analysis

As discussed above in the study the various sources of law, each source is different and important in one or the other way. There is no one source which can be considered superior among the many sources of law. Each one of the sources have their advantages and disadvantages.

As the study focuses on the comparative analysis of legislation as a source of law, therefore, some of the advantages of legislation as a source of law are given below:
Irrefutably, the legislation has reliably been seen as a huge source of law as differentiated and various sources. There are two clear clarifications behind the legislation is seen as an exception among the main wellsprings of law. First thing, it incorporates setting down genuine standards by the law-making bodies which the State sees as law.

Furthermore, it has the force and authority of the State. It is henceforth said by Dias and Hughes that cognizant law-creation by an authentic force, for example, the State is called 'legislation' which gave that sovereign is effectively seen as the incomparable force by the courts.

Comparison between Legislation and Precedents as a source of law:

  1. Repudiating power of legislation:
    It is its abrogative force and altering characteristic that gives legislation prevalence over precedents. legislation in both constitutive and abrogative while precedent simply has constitutive adequacy. The legislation isn't just a wellspring of law. Precedent, then again, can't repeal the current principle of law in spite of the fact that it might deliver better law and in some regard in a way that is better than legislation. What it does, it does for the first and last time. It can't backtrack its position.
  2. Proficiency:
    Legislation permits a profitable division of work by separating the two elements of making law and managing it. This outcome in expanded effectiveness. Precedence, unexpectedly, clubs both the work that is making and implementing of law.
  3. Declaration:
    Justice states that law should be known before it is applied and upheld by the law courts, however the case law worked reflectively, being applied to realities that are earlier in date to the law itself. statute law only occasionally reviews in its activity. At that point, legislation withstands the trial of a translation of the resolution by the official courtrooms. In the event that any modifications are proposed in the ordered law, they are distributed and assessments welcomed. Case law, despite what might be expected, is made and pronounced at very much the same time.
  4. Structure or form:
    Statue law is incredibly better than case law in the purpose of the structure. Statute law is positive, brief, clear, and effectively justifiable. In Precedence, to know standards and rules one should investigate the subtleties of the case. As Salmond notices, case-law is gold in mine � a couple of grams of valuable metal to the huge load of futile material � while rule law is the coin of the domain, prepared for guaranteed use.
  5. Clearness and Accessibility:
    A statute is communicated in theoretical terms as a progression of general principles. It is, accordingly, clear and compact and might be perceived by the layman. A law settled on by legal choices, then again, exists no place in a general and conceptual structure. In precedence, rules and standards are set somewhere near the inductive strategy. In legislation, the deductive strategy is turned to. The courts take the standard from the resolution and apply it to a specific case.
  6. Coherency:
    Judiciary law will undoubtedly be deficient with regards to incoherency and fulfilment since it is limited to the specific case just at without fail. Through legislation, then again, the law fits precise treatment. This is no mean bit of leeway to legislation over case-law.

Comparison between legislation and custom as a source of law:

  1. Existence:
    Legislation has a de-jury authority, for example, it has a legitimate presence, on the other hand, the customs are true for example they are the matter of realities, they are de-facto. The presence of legislation relies on the communicated authority given by the state, yet the presence of customs relies on the inferred authority of the state and the communicated will of the individuals.
  2. Evolution:
    Custom as a source of law was widely accepted in the system during the primitive age, but in the current scenario, the legislation is given more recognition in the system as a verifiable and codified source of law. The legislation is a central trademark for a present-day society while the customary law was made in an unrefined social request.
  3. Acceptability:
    Legislation as a source is surely a durable nature of law, as differentiated to the custom which is the most settled kind of law and is trailed by a specific faction.
  4. Codification:
    The legislation is done, definite, written in the structure, and adequately open. Be that as it may, the custom is by and large unwritten am non-scripted, and is difficult to follow.
  5. Details and deliberations:
    Legislations results out of the thoughts while custom creates inside the overall population in the customary course. Therefore legislations may have more accuracy as compared to the customs, as a particular practice that may be followed by a group may not have a universal acceptance with the other sections, while legislations are deliberated and discussed, and then given acceptability.

As mentioned earlier in the study that no source of law is complete and perfect in itself, the same goes for legislation for the following reasons:

  1. Unyielding nature:
    Law in the legislation is rigid however the law in the precedence is flexible and versatile.
  2. Taking into account Hypothesis:
    Legislation, generally, proceeds on theoretical assurances, by thinking about the current climate and encompassing in which the setup law is oftentimes seen to be flawed in its application to the issues arising in practical life however piece-scratches create out of the realistic exigencies and accommodation.
  3. An extreme measure of Importance to the Wordings:
    Legislation adds a great deal of essentialness to its phrasings. Hence, if the enunciation is flawed, the law in itself gets adequately turned. In the precedence, the phrasing matters near nothing as there is a certified presentation that performs separate tests of the material-ness of precedence as a wellspring of law. The equivalent goes for the customary law too.
It can be said that legislation being an important source of law means laying down or enacting laws in codified forms by the sovereigns or any other authority to whom it delegates its authority.

It is generally rigid in nature as any changes to it can be made only after enacting a new law on the same subject or by amending it through a proper procedure. It is also based on the idea that sufficient laws shall be made by the proper authority before happening of any incident on this behalf so as to protect the rights of the people beforehand.

Legislation as a source of law is sometimes claimed to be superior to other sources of law but it is controversial and entirely depends on the definitions and understandings of the jurists.

The study includes the meaning of the law, its definition by various authors which are widely accepted in the current scenario, since there is no particular definition of law, Salmond's definition of law is considered the aptest definition of law. Since the law is involved in everyday actions and activities of the people and is directly engaged with the people's life. It is important to understand the various sources through which a particular law is enacted, so as to get a proper essence of the law enacted.

Further, the study discussed the various sources of law, which are broadly divided in primary and secondary sources. The major or the primary sources are legislations, judicial precedents, and customs. The meaning and definitions of each source were discussed and on doing a comparative analysis on the same the legislation as a source of law had some advantages over the other sources of law, but it also had its own disadvantages.

On doing the analysis it can be said and also it is a well-established fact that no source of law is complete or apt in itself, each one of the sources has its own importance, the essence or importance of which can vary from time to time, as the needs and requirements of the people in the society changes.

  1. J.W Salmond, Law of Tort, 11 (18th edition, 1907).
  2. Holmes O. W, Common Law (Stuart E. Thiel, January 2000).
  3. Indian Const. art. 13, cl. 3.
  4. Sir John Salmond, Jurisprudence, 171 (6th ed. 1920).
  5. 30 ER 516.
  6. Indian Const

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