Written by:Adv. Pooja Gupta

Legislation as a Source of Law in Jurisprudence

Introduction of the Legislation as a source of law in Jurisprudence: – The act of enacting laws is referred to as “legislation.” “Legis” signifies “law,” and “Latum” signifies “making,” so it indicates lawmaking. Legislation is a method of making laws in which the appropriate government is responsible for drafting and implementing legislation in a specific region. It is also asserted to be a rigorous principle of the legislative process because there is only one authority entrusted with the responsibility of lawmaking, and there is very little space for any developments because the legislation is codified as well as airtight, leaving a very limited proportion of modification.

Law and the sea have a connection. Both the law and the ocean are vast, and every judgment, like a drop in the sea, adds to the number of points of reference. Similarly, there is no life without water, and there is no existence without the rule of law.

Law helps to maintain appropriate order in society as well as prevents chaos from occurring in the system. The legislation not only contains guidelines and regulations that must be followed by individuals living in society, but it also provides citizens with rights that can be enforced by citizens without exceptions or restrictions.

Legislation’s  Definition

In the current situation, there is no comprehensive or perfect interpretation of the term law because, due to its global as well as dynamic nature, it is applicable to everything in the world and it constantly changes with respect to the necessities of the people & the mechanism that regulate them.

Nonetheless, a number of authors & jurists have attempted to define law in the most appropriate manner possible; some of these interpretations are listed below:

Sir John William Salmond The body of principles respected & adhered to by the government in the administration of justice is referred to as the law. Overall, the law is made up of rules that are perceived and enforced by judicial proceedings.

Law, according to John Austin, is the aggregate set of rules established by a man as politically superior, or sovereign, to men as political subjects. As a result, this definition characterizes law as a set of rules that must be followed by everyone, regardless of their position.

Salmond’s definition is widely regarded as the most precise of all. There is still no perfect & complete interpretation of the law.

According to him, legislation can also be used as a source of law in 3 different ways, including:

Strict Sense or First Sense

The legislation serves as the foundation for the rules of law promulgated by appropriate authorities.

Second Sense or Broadest Sense

The legislation encompasses all approaches to making laws, whether direct or indirect.

Third Sense

The legislation encompasses all expressions of the legislature’s will, whether making law or not.

Sources of Law

Each country’s judicial structure has its own source of laws, with some giving higher significance to one source than others. According to the categories, they rely more on a specific source and prefer that source of law. Some of the major or primary sources of law are listed below:

Legislation

The legislation comes from the Latin phrase ‘legis’ (guidelines or rules) and ‘latum’ (law) (making). So, legislation can be defined as the process of creating law; it is created by the legislature of any region or nation and is binding on all. In India, legislation is recognized as an essential source of legislation. It has a broad scope and is used to supervise, authorize, empower, endorse, grant, proclaim, or restrict. The parliament defines the governing body as new acts, new laws, revocation, and modification of old laws. The process for creating this is outlined in India’s constitution.

Kinds of legislation

Legislation is broadly classified as a source of law into three different categories.

Supreme legislation

The supreme legislation is that which has been recognized by the government’s sovereign power. As a result, some of the state’s organs are unable to handle or control it. It is thought to be exceptional as well as legally revolutionary. Its scope is unrestricted in any manner. Similarly, India’s parliament is transcendent. Regardless of the fact that there are various established revisions on its purview, it isn’t reliant on any other state personnel. As a result, the state’s sovereign region cannot be denied, dropped, or compelled by any other lawful organ of the state.

Subordinate legislation

Subordinate legislation is laws passed by authorities other than the state’s Supreme Expert. It is created using the forces delegated by the Supreme Power. The supreme authority is responsible for the origin, provenance, and continued existence of such regulation. It may be dropped & revoked at any time due to the strength of the sovereign position, and in this way, it should provide a method of dealing with sovereign legislation. Subordinate legislation is scrutinized by the legislature. Subordinate legislations include

  • Autonomous Legislation.
  • Judicial Legislation,
  • Colonial Legislation,
  • Municipal Legislation, and
  • Executive Legislation.

Delegated legislation:

‘Delegation’ can be described as the act of entrusting an individual with authority or empowering him to act as a delegate or representative for the person who has provided him that authority. The term ‘delegated legislation’ refers to the use of authoritative power by a specialist who is lower in rank than the Legislature or is subordinate to the Legislature. ‘Delegated legislation,’ also known as ‘assistant legislation,’ is a sanction issued by a person or organization other than Legislature.

Parliament can authorize another person or entity to make a sanctioning decision through an Act of Parliament. An Act of Parliament establishes a particular or specific law and it will generally include an outline of the Act’s motivation. By delegating legislative authority from Parliament to the Executive or any subordinate, various individuals or bodies are able to add finer details to a Parliamentary Act.

Thus, through basic authorization (for example, an Act of Parliament), Parliament approves others to make laws and regulations through delegated legislation. An authorized individual must sanction in accordance with the explanation provided in the Act of The parliament.

Customs

Customs are non-codified guidelines that have acquired official or obligatory status. In primitive social hierarchies, practices were regarded as one of the primary sources of law; indeed, it was regarded as the sole source of law. With the passage of the period & the increasing prevalence of modern human progress, the impact of custom as a source of legislation hindered, & new sources, such as judicial precedents and legislation emerged.

To be legal, a custom must be accompanied consistently and without interruption for an exceptionally significant period of time. Furthermore, a specific practice must be upheld for a long time, but it should also be upheld by a population assessment as well as ethical quality. Regardless, every custom does not have to be made into law. The Hindu Marriages Act of 1955, for example, prohibits relationships that fall within the prohibited levels of relationship. However, if there is an expressed custom within a specific social group, the Act actually allows relationships within the forbidden level of a relationship.

Judicial Precedents

The court itself is another source of law. Any higher court in this country that issues a valid judgment within its jurisdiction establishes regulations or rules for all court systems that are subordinate to it. As per this assertion, if the apex court, delivers a decision on a specific case, it will become the rule of law as well as the norm for all other courts subordinate to it in India.

This concept is known as judicial precedent, and it is also a source of law. Judicial precedents are based on the ideology of ‘stare decisis,’ which is also discussed in Art. 141 of the constitution, which states that the law declared by S.C is binding on all courts. The Apex court Court’s ruling of law is binding on the court throughout India. For instance, if the S. C settles on a specific instance & a comparative situation goes to the lower court, the lower court will consider the case the same & pass the same judgment as done by S.C.

This is due to the fact that S.C has set a precedent for the lower courts to follow. A judicial precedent can only establish new legislation, but it cannot change existing law. They become additionally significant only when there are inconsistencies in current legislation. Its capability is to close loopholes in the law through new legislation. Adjudicators will unquestionably implement an established legal guideline.

Other sources

The Indian constitution establishes numerous rules and regulations, as well as the duties and responsibilities, that are available to those who are a part of it. When the constitution comes into force, it included significant contributions from several other countries. The framers of the Indian constitution took relevant aspects from the constitutions of numerous other countries and incorporated them into the Indian constitution.

As a result, the constitutions of other countries serve as a source of law in India. For example, the concept of single citizenship & the rule of law was adapted from the British constitution.

Some other sources also include Religion, legal opinions, online & offline sources, conventions, treaties, etc. These are all secondary legal sources.

Conclusion of the Legislation as a Source of Law in Jurisprudence

To sum up, legislation is an extremely essential source of law in the present era. It seems to be more persuasive when compared to other sources of law. Legislation has been further divided into various types to guide knowledge & understanding. It’s become a requisite for modern society in terms of delegated legislation.

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