1) Introduction -
Legislation is an art of lawmaking. Among all the sources of law, legislation is one of the most patent and sovereign source lawmaking. There are two kinds of Legislation - Supreme Legislation and Subordinate Legislation. Salmond classified Subordinate legislation into five kinds - Municipal Legislation, Executive Legislation, Colonial Legislation, Autonomous Legislation and Judicial Legislation.
2) Meaning of Legislation --
The term "legislation" is derived from two Latin words, legis meaning law and latum meaning to make, put or set. entomologically legislation means the making or the setting of law. The legislation is a rule or body of rules passed by the legislature which is binding on all individuals in the society. In other words, legislation means an act or enactment passed by the legislature to regulate human behavior. Supreme and subordinate legislation are the two kinds of legislation. Legislation has its own merits and demerits also.
3) Definition of Legislation -
Definitions of Legislation are as follows-
According to Salmond, "Legislation is that source of law which consists in the declaration of legal rules by a competent authority".
Prof. Gray :
According to Prof. Gray Legislation is nothing but the formal utterance of the legislative organs of the society.
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, " 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.
4) Kinds of Legislation -
As above mentioned, there are two kinds of Legislation - Supreme Legislation and Subordinate Legislation. Salmond classified Subordinate legislation into five kinds - Municipal Legislation, Executive Legislation, Colonial Legislation, Autonomous Legislation and Judicial Legislation. See in details... Kinds of Legislation.
5) What is Precedent?
Precedent means decision given by the superior courts is binding on inferior courts and to be followed in future in similar cases Doctrine of Precedent bring certainty, predictability and uniformity in the law.
See in detail...What is Precedent and what are advantages of Precedent?
6) Merits of Legislation over Precedent
(1) The Legislation has its source in lawmaking will of the state whereas Precedent has its source in judicial decisions.
(2) The legislation is imposed on courts by the legislature on the other hand Precedents are created by the courts by themselves.
(3) Legislation denotes formal declaration of law by the Legislature whereas Precedents are recognition and application of New Principles of law by the court in the Administration of Justice.
(4) Legislation is enacted before a case arise but the precedents come into existence only after the case has arisen and taken for decision before the court
(5) Legislation is expressed in comprehensive form but the scope of judicial precedent is limited to similar cases only.
(6) Legislation is generally prospective whereas precedent is retrospective
(7) Legislation is declared or published before it is brought into force but precedent comes into force at once. i.e., as soon as a decision is pronounced.
(8) Legislation is done with the intention of lawmaking but it is not so in the case of precedent. The precedent, which includes ratio decidendi and obiter dicta (See...Difference between Ratio Decidendi and Obiter Dicta, is intended to settle a specific dispute on the point of law once for all.
(9) It is not Difficult for the public to know the law enacted by the legislature but the precedent based on case law is not easily known to the public. At time Lawyers who deal with the law are ignorant about the existence of a particular ruling of the Court
(10) Legislation involves lawmaking by deductive method whereas case law is created by resort to inductive method.
Doctrine of 'Precedent' in India
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