5 Chief Advantages of Legisla­tion over Precedent as Sources of Law

The chief advantages of legisla­tion over precedent are the following:

1. Abrogative Power:

Legislation is both constitutive and ab­rogative whereas precedent merely possesses constitutive efficacy. Legislation is not only a source of law, but it is equally effective in amending or annulling the existing law.

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Precedent, on the other hand, cannot abrogate the existing rule of law although it may produce very good law and in some respects better than legislation. What it does, it docs once for all. It cannot retrace its steps. Legislation as a destructive and reformative agent has no equal.

2. Efficiency:

Legislation allows an advantageous division of labour by dividing the two functions of making the law and adminis­tering it. This results in increased efficiency. President, however, unites those two functions in the same hands.

3. Declaration:

Justice demands that law should be known before they are applied and enforced by the law courts, but the ease law operates retrospectively, being applied to facts which are prior in date to the law itself. Statute law is seldom retrospective in its opera­tion.

Then legislation withstands the test of an interpretation of the statute by the courts of justice. If any alterations are proposed in the enacted law, they are published and opinions invited. Case law, on the contrary, is created and declared at one and the same time.

4. Provision for future cases:

Legislation can make rules in anticipation for cases that have not as yet arisen, whereas precedent must wait for the occurrence of some dispute before the court can create any definite rule of law. Precedent is dependent on, and legis­lation is independent of, the accidental course of legislation.

Legisla­tion can till up vacancy or settle a doubt in legal system as soon as the defect is Drought to the notice of the legislature. This is not possible in the case of precedent. Case law, therefore, is incomplete, uncertain and unsystematic.

5. Form:

Legislation is superior in form brief, clear, easily accessible and understandable, whilst valuable part of case law has to be extracted from a ton of dross. One has to wade through the whole judgment before the ratio decided can be found out or case law discovered. Figuratively, as Salmond observes, ease law is gold in mine a few grams of precious metal to the ton of useless material while statute law is coin of the realm, ready for immediate use.

The advantages of precedent over statute law may also be stud­ied. “The morality of the courts”, says Professor Dicey “is higher than the morality of politicians.

Legislation is the product of the will of politicians who are affected by the popular feelings and passions. That is why the judiciary often denounces statutes as wrong, tyranni­cal, unjust or contrary to fundamental principle laid down in the writ­ten Constitution.”

John Salmond points out that enacted law is rigid, strictly bound w within the limits of authoritative formulae, while the case-law, with all its imperfections, is flexible.

In the case of statute law the letter of the law supersedes the true spirit of law. The phraseology may fail to convey the true meaning intended by the enactment, but the courts are bound by the literal expression.