Bentham and Austin signify by the term “legislation” as any form of law-making. The term is, however, restricted to a particular form of law-making, viz., the declaration in statutory form of rules of law by a competent authority. It denotes the enunciation or promulgation of law by the legislature of the State. The law that has its source in legislation is called enacted law, statute law or written law.
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Gray defines legislation as “the formal utterance of the legislative organs of the society.” This definition is quite adequate and more explicit than that of Salmond who defines legislation as “that source of law which consists in the declaration of legal rules by a competent authority.”
ADVERTISEMENTS:
Legislation is the most potent and sovereign source of law-making. It is the only source which has all powers of enacting law, repealing old laws and modifying current laws. It is, therefore, to be distinguished from law derived from judicial decisions, for, though the judiciary may be said to have power to make law, it has no power to lay down general rules.
Legislation may be divided into two forms supreme legislation and subordinate legislation. Supreme legislation is that which proceeds directly from the supreme or sovereign power in the State. It is supreme because no other authority can annul, modify or control it.
Legislation by any other authority is subordinate legislation and is capable of being controlled by the supreme authority.
Subordinate forms of legislation derive their authority to legislate only by delegation, express or implied, of the supreme power. Municipal corporations, university bodies, railway companies and clubs have got powers to make rules and order governing themselves and their members.
ADVERTISEMENTS:
The chief forms of subordinate legislation, according to Salmond, are the following:
1. Colonial Legislation:
Legislation by the legislature of the colonies or other dependencies of the Crown enjoying the powers of self-government is subject to the control of the Imperial Legislature. In view of the Statute of Westminster 1931, the Dominion Legislature, now enjoy sovereign power.
2. Executive Legislation:
It is legislation by the executive of a State for supplementing the statutory provisions by the issue of more detailed regulations pertaining to the subject.
3. Judicial Legislation:
ADVERTISEMENTS:
It is the rule-making power of the courts for the regulation of their procedure.
4. Municipal Legislation:
The bye-law making power of municipal authorities is another form of subordinate legislation.
5. Autonomous Legislation:
Legislation by autonomous bodies like universities or railway companies is also termed subordinate legislation.
Codification of Law:
A code is a consolidation of the statute law, a statute collecting all the laws relating to a particular subject. According to Salmond codification is the reduction of the whole corpus jurist to the form of enacted law. Codification acts a check whereby the determination of a particular law is not left to the caprices of judges.
In the beginning England was averse to codification and Ben- than had to publish his work in the French language in France. It was not until those works were translated into English and gained popularity that legal opinion turned towards codification.
According to Bentham, it was possible to frame an ideal code which would determine every possible legal controversy and leave no loophole for the making of law by judicial decisions.
The most complete instance of codification in history is that of Justinian’s. That great Emperor reduced to one compact and consolidated body the whole mass of statutory law.
In India we have a Code for all the time, the Code of Manu, where law and the religion are interwoven. Hindu law was compiled by Raghunandan Shastri of Bengal at the instance of Aurangzeb, called Fatwai- Alamgiri. In 1919 Sir Hari Singh Gaur brought out Hindu law in the form of a Code.
After the integration of Indian States into Indian Union, the need for codification of law assumed great importance.
Real national unity could be achieved only when the several millions of inhabitants were welded together under the domain of common codified sets of law applicable to all citizens throughout the Indian Territory relating to inheritances, succession, property, taxation and other fiscal matters. In the case of law relating to marriage, divorce, adoption and religious and charitable endowments there could be separate sets of codified laws for Hindus, Muslims, Christians, Sikhs, Parsecs and Buddhists’.
The advantages of enacted law are so great that they outweigh all the defects of the statute law. Enacted laws are uniform and certain; they are protection against arbitrary and faulty decisions and they protect the administration of justice from the errors of individual judgment. They tend to tender the law readily ascertainable and obtain unity over a large area.
It is sometimes supposed that codification dispenses with the case law altogether. This is a faulty notion. Case law will continue to grow even when the codes are complete.
It is true that in an age capable of producing a code, the law cannot keep pace with social conditions of life that are changing at a rapid pace. But codification is meant to benefit the laymen, who can easily lay their hands on the enacted or codified law.
By simplifying law and making it accessible in a particular statute, they are saved of the worry of wading through bulky records and discovering the ratio decided of each case. It need not necessarily involve any change in the matter of the law though the occasion for codification docs afford an opportunity to effect desirable reforms in the existing law. A carefully close-knit codec greatly assists the judge in dispensing justice.
Salmond observes that codification does not mean the total disappearance of ease law, but merely the reversal of this relation between it and statute law. The function of precedent will be lo supplement, to interpret, to reconcile, and to develop the principle which the code contains.
Saving objects that a code stereotypes the natural growth of law, “you lend to incorporate your ignorance with your knowledge.” Bui a codec marks the full maturity of a system of law. There is bound to be a regular and scientific revision of the code.
Another objection levelled against codification is that a code cannot possibly deal with every particular case that may arise. A code never attempts to achieve that end. Experience has shown that the less detailed and more generalised a code is, the greater is its success.
Codification brings about simplicity, symmetry, intelligibility and logical coherence.