LEGISLATION

INTRODUCTION :

“Legis” means law and “latum” means making. Legislation means lawmaking. It
also refers to the law made by the legislature. It may also be defined as the
promulgation of legal rules by an authority which has the power to do so. It is the
formal declaration of the legal rules by the legislative organ of the body politic.
In a wider sense, it includes all the sources of law, any act done with the effect of
adding to or altering the law. When a judge establishes a new principle in a judicial
decision, it is possible to say that he has exercised legislative power and it is also
legislation. It frames new laws, amends the old laws and cancels existing laws in all
countries.
DEFINITIONS OF JURISTS:
ACCORDING TO SALMOND:

According to Salmond, "Legislation is that source of law which consists in the

declaration of legal rules by a competent authority".

ACCORDING TO AUSTIN:

According to John Austin, legislation includes an activities, which results into

law making or amending, transforming or inserting new provisions in the existing
law. Thus "there can be no law without a legislative act.

ACCORDING TO HOLLAND:

According to Holland, “the making of general orders by our judges is as true

legislation as is carried on by the Crown", but we confine ourselves to the use of
them term legislation in the sense which is commonly understood.
THE LEGISLATION IS GENERALLY USED IN A MORE LIMITED SENSE :
It denotes the laying down of legal rules by a sovereign and subordinate legislature.
An important distinction between lawmaking by legislature and lawmaking by a
court must be clearly understood. When the legislature makes a law, it does not have

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any actual disputes before it and it lays down general rules for the future, without
reference to any actual dispute.
Courts, on the other hand, are engaged in the settlement of disputes and any law
making that they may do is only with reference to actual disputes before them and
only in so far as is necessary for their solution. Thus we may say that judicial
lawmaking is incidental to the solving of legal disputes; while lawmaking is the main
function of the legislature.
A legislation is most accurately termed as the enacted law, all other forms being
distinguished as un-enacted. However, in a jurisprudential sense, Legislation
includes only an expression of the will of the legislature directed to the making of
the rules of law.
“CASE LAW IS GOLD IN THE MINE-A FEW GRAINS OF THE
PRECIOUS METAL TO THE TONS OF USELESS MATTER-WHILE STATUTE
LAW IS A COIN OF THE REALM READY FOR IMMEDIATE USE.” – SALMOND
Legislation or “Statutory law” is a law or the process of making a law which is
“enacted” by a legislature while the legislature is the body or chamber of people who
make, amend or repeal laws. An item or piece of legislation is known as a bill before
it becomes a law. The “paramount consideration “in enacting laws in a ‘Welfare
State’ should be “the best interests of the people, “particularly women and
children, in which a standard is echoed throughout the legal instruments on women
and children’s rights, Scheduled Castes, Scheduled Tribes and other backward
classes.
PURPOSE OF LEGISLATION:
Legislation can have many purposes, for example, to regulate, to authorize, to
prescribe, to provide, to sanction, to grant, to declare or to restrict and repeal.

LEGISLATION AS A SOURCE OF LAW:

But legislation as a source of law is very strict concept according to which only the
lawmaking by an authorized body or defined person will be termed as legislation.
Customary or conventional laws and judicial decision do not constitute legislation
as a source of law and hence a concept of jurisprudence.

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SUPREMACY OF LEGISLATION OVER OTHER SOURCES OF LAW:
It is entirely a controversial topic that whether legislation is superior source of law
or the precedent. The analytical jurists claim the superiority of legislation whereas
other jurists claim otherwise.
According to Austin and Bentham legislation is superior because it is made only
after due consideration of all circumstances and after a detailed discussion between
the parliamentarians as to what should be in the best interest of the people. Precedent
on the other hand is laid down in a haste of disposing of a case at the earliest.
Other jurists are of belief that precedent is made only after looking behind the facts
of each case and practical applicability of law whereas legislation is merely a rigid
form and hence is abstract in nature.
According to Salmond, “Case laws with all its imperfections has at least this merit
that it remains in living contract with reasons and justice of matters and draw from
this source a flexibility and power of growth and adaption which are too much
wanting in the litera scripta of the enacted law.”
According to Gray. “Case law is not only superior to statute law but all the law is
judge made law.”
CLASSIFICATION OF LEGISLATION:
Legislation may be broadly classified as Supreme, subordinate legislation. It is
Supreme when the sovereign authority itself make the law, as the law made by Indian
Parliament. It is subordinate when the sovereign power is delegated to any other
authority to make law, as the power delegated to a corporation to make law.
SUPREME LEGISLATION:
The Supreme legislation is by the sovereign power of the state. Therefore, any other
authority within the state can, in no way, control or check it. It is considered not only
supreme but legally omnipotent. A classical exposition of this principle can be found
in Dicey’s book, ‘The Law of the Constitution’. There is no legal limitation on its
power. Pakistan parliament is also supreme. Though there are certain constitutional
restrictions upon its power, it is not subject to any other legislative authority within

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the state. It cannot be repealed, annulled or controlled by any other legislative
authority.
SUBORDINATE LEGISLATION:
Subordinate legislation is legislation by any other authority than the Supreme
authority in the state. It is made under the powers delegated by the Supreme
authority. Such legislation owes its existence, validity, and continuance to the
Supreme authority. It can be repealed by and must give way to sovereign legislation.
Subordinate legislation is subject to parliamentary control. Five different forms of
subordinate legislation can be identified. These are:
I. COLONIAL LEGISLATION:
The countries which are not independent, and are under the control of some
other state have no Supreme power to make law. Such countries are of various
classes: as colonies, dominions, protected or trust territories etc. The laws
made by them are subject to the Supreme legislation of the state under whose
control they are. Thus it is subordinate legislation. Britain has had many
colonies and dominions. The laws made by them for the self-government are
subject to alteration, repeal or supersession by the legislation of the British
Parliament. As the colonies are fast achieving independence, and almost all
the British dominions have uncontrolled power for legislation, therefore in the
near future, we may not have this class of subordinate legislation.

II. EXECUTIVE LEGISLATION:

When legislative powers are delegated to the executive, it is called executive
legislation. Though the important function of the executive is to implement
the laws and carry on the administration, it is always entrusted with some
subordinate legislation powers also. Today, practically every law enacted by
the legislature contains delegation clauses conferring law-making powers on
the executive to supplement the statutory provisions.

III. JUDICIAL LEGISLATION:

Judiciary is given powers to make certain rules to regulate the procedure. Such
act of court during judicial proceeding is called judicial
legislation. Balochistan High Court Rules, which are rules governing
Balochistan High Court and matter coming before this Court.

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IV. MUNICIPAL LEGISLATION:
Municipal authorities are provided with the power of establishing special laws
for the districts under their control. They are allowed to make bye-laws for
limited purposes within their areas. These are legislation of local bodies such
as municipal or corporations.

V. AUTONOMOUS LEGISLATION:
When the Supreme authority confers powers upon a group of individuals to
legislate on the matters entrusted to them as a group, the law made by the latter
is called the autonomic law and the body is known as an autonomous body. A
railway is an autonomous body. It makes bye-laws for the regulation of its
administration, etc. A university is also an autonomous body.

CONCLUSION:
Hence it may be concluded that legislation being an important source of law means
laying down or enacting the laws in a codified form by the sovereign or by any other
authority to whom it delegates its power.
It is generally rigid in nature as any changes to it can be made only after enacting
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 a proper authority before
happening of any incident in this behalf so as to protect the rights of people
beforehand.
Legislation as a source of law is sometimes claimed to be superior to other source of
law but it is a controversial topic and entirely depends on the definition of law given
by various different jurists.