Legislation:
Q what is the meaning of legislation as a source of law and its effect on supreme and subordinate legislation
Q what is legislation? Explain the kinds of legislation.
Q write in detail about the legislation, its nature, meaning and its kinds.
Q difference between supreme and subordinate legislation
Legislation is the process of making and enacting laws, it is the most modern and important source of law. In wide sense it includes all methods of law making, and therefore, would take in judge-made laws also. In the strict sense, however, legislation is the laying down of legal rules by the sovereign or subordinate legislator.
During the past ages, laws were mostly customs of the people, they were conceived as jus, the principle of justice, rather than lex, the will of the state. The function of the state in its earlier conception is the enforcement of law, the law in the sense of immemorial customs sanctioned by religious faith or practisse and sometimes claiming origin in the divine being. This primitive alliance of law , religion and custom gradually gave place to the idea that law depended for its material contents on the tacit or express will of the state, that political rulers could change and subverts the laws. Thence started the beginning of this most powerful instrument of the state, namely, the making of law.
In democratic and representative governments, the function of making or amending the laws is performed by the legislature or the law-making organ of the government. Legislatures lays down rules for the future and are not concerned with an actual dispute. Sometimes customs and religious laws are incorporated into the legislative enactments or laws. Law making is the central function of legislature. However legislature has other functions as well.
Functions of legislature:
Following are the other functions of the legislature:
Making of new laws, amending or repealing the old ones
they may ratify a treaty
alter the coinage
declare war
annex or abandon territories through passing of acts
kinds of legislations
there are two kinds of legislations:
supreme
subordinate legislation.
Supreme legislation: supreme legislation proceeds from the supreme or sovereign power in the state and is incapable of being repealed annulled or controlled by any other legislative authority. In other words soverieng legislator is that which has no rival in the state. Sovereignty does not involve that the legislators power are unlimited in every way. sovereignty is the question of law rather than of fact and hence sovereign is not so much the body enjoying obedience in fact as the body whose decrees qualify as law within a legal system. The existence of a sovereign entails the existence of rules of law. these will define:
the identity and composition of the sovereign
the procedure according to which he will legislate
the area within which he is competent to legislate.
In England in legal theory doctorine of parliamentary sovereignty implies supremacy and omnipotence of the parliament. This is an accepted principle of constitutional law. It means that there is no legal limit upon the power of parliament. The law passed by the legislator are called statue or act of parliament.
Subordinate legislation: legislation by bodies inferior to the sovereign constitutes subordinate legislation. Subordinate legislation proceeds from any authority other than the sovereign power and is therefore dependent for its continued existence and validity on some superior or supreme authority. it is subordinate in many senses: it can be repealed, altered or amended by the supreme legislature.
Forms of subordinate legislation:
colonial: Colonial legislation is such legislation which is made by the legislatures of colonies or other authorities.
Executive: in regards to enforcement of law, implemented by courts the executive government is entrusted with the function of supplementing statutory provisions by framing detailed rules and regualtions.
Judicial: the higher judiciary often frame rules for the regulation of their own procedure and also that of the subordinate judiciary.
Municipal: they can frame bye-laws for carrying out various activities entrusted to them.
Autonomous: the law gives to certain groups of private individuals limited legislative powers touching matters which concern themelves. A university any be given power to make rules binding upon its members
Legislation and precedent: there are some advantages of legislation over precedent which has been explained in detailed below:
-Legislation has the virtue of abrogative power; it can undo what it has ill-done, it can abolish what already exists. Precedent, however can claim only constitutive efficacy.
-secondly, the formal declaration of a statute satisfies the normal requirement of natural justice that law shall be known.
-lastly the advantage of legislation is that it can make rules of law by way of anticipated circumstances.
Interpretation of enacted laws:
By interpretation is meant the process by which the court seek to ascertain the meaning of the legislature. Interpretation is of two kinds, grammatical and logical.
Logical / harmonious meaning (golden rule): it seeks for some more satisfactory evidence of the true intent of the legislature. the traditional view is that the duty of the judge is to discover and to act upon the true intention of the legislature, sententia legis. It is also called the golden rule of statutory interpretation which may be applied where an application of the literal rule would lead to an absurdity. The courts may then apply a secondary meaning
Literal meaning: it regards exclusively the verbal expression of the law. the courts in this regard have framed various rules in this direction:
The courts may look at the dictionaries; for scientific words it can look at the technical words in which the words are used.
If there has been judicial interpretation, that interpretation may be binding, according as the court in which the case comes up.
Another rules ejusdum juris serves to restrict the meaning of generak words to things or matters of the same kind (genus) as the preceding particular words.
