vustudents
09-06-2011, 11:47 PM
Q. what do you understand by subordinate legislation. Discuss its chief forms. (2000)
Q. Define legislation. Distinguish between supreme and subordinate legislation. (1996), (1994)
Q. Explain supreme and subordinate legislation and describe various form of subordinate legislation. (1993)
1. Introduction:
The term legislation is derived from Latin words “legis” meaning law and “latum” meaning “to make”. Legislation means the making or setting of law. In wider sense, the term legislation is used to include all methods of law-making but in a restricted sense, it includes every expression of the legislation whether the same is directed to the making of law or not. The law that has its source in legislation is called enacted law, statute law or written law.
2. Definition Of Legislation:
I. According To Salmoned:
“Legislation is that source of law which consists in the declaration of legal rules by the competent authority.”
II. According To Gray:
“Legislation means the formal utterance of the legislative organs of the society.”
III. According To Holland:
“The making of general orders by our judges is as true legislation as is carried on by the crown.”
3. Legislation As Source Of Law:
Legislation as a source of law many be discussed by analyzing the following approach.
I. Analytical Approach:
The view of the analytical school is that typical law is a statute and legislation is the normal process of law making. They neither approve of the usurpation of the legislative functions by the judiciary, nor considered custom as a source of law.
II. Historical Approach:
The view of the Historical school is that legislation is the least creative of the sources of law. It has no independent creative role at all. Its only legitimate purpose is to give better from and made more effective the custom.
Criticism:
Both analytical and Historical school go to extremes. The mistake by the analytical school is that, it regards legislation as a sole source of law and does not attach any importance to the custom and precedent. The mistake of the Historical school is that, it does not regard legislation as a source of law.
According to Dean Pound:
Legislation is of two types, organizing and creative. The existence of the creative cannot be doubted in modern times when there is abnormal legislative activity.
4. Kinds Of Legislation:
According to Prof. Salmond, Legislation is of two kinds:
I. Supreme legislation
II. Subordinate Legislation
I. Supreme Legislation:
Supreme legislation is that which proceed from sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority.
According to Austinian Theory:
It is logically impossible for there to be any legal limitations on the sovereign authority. Sovereign on Austin’ s definition owes obedience to on one.
Example:
In England, Parliament is the supreme legislation authority. An Act of parliament cannot be held void for unreasonableness or it seems upon any other ground.
II. Subordinate Legislation:
Subordinate legislation is that which proceed from any authority other than the sovereign power and is therefore dependant for its continued existence and validity on some superior authority.
Example:
Legislation made by the Municipal corporation is the subordinate legislation.
A. Kinds Of Subordinate Legislation:
Salmond mentions five chief forms of subordinate legislation.
(i) Colonial legislation:
The laws made by the colonies and other dependencies of crown subject to the control of imperial parliament. However it is be noted, that after passing of the statute of West Minster of 1931, the dominion legislation have been powers to make may any law they please.
(ii) Executive legislation:
The laws made by the executive body in order to regulate the administrative functions of the state. The executive may also frame detailed rules and legislation as supplementing the statutory provisions of the legislature. There are certain checks or control on executive legislation vir.
(a) Parliamentary control which can modify, amend or refuse altogether the powers.
(b) Parliamentary supervision
(c) Judicial control
(d) Power must be handed over to trustworthy persons.
(e) Public opinion
(f) Experts opinion
(iii) Judicial legislation:
The superior Court are given limited powers to make general rules for the regulation of their own procedure. It is true legislation in the true sense to the term e. g., High Court rules and regulations.
(iv) Municipal legislation:
Municipal authorities are also allowed to make bye-laws for limited purpose within their areas. These are binding upon the people generally and offences against these by-laws are punishable.
(v) Autonomous Legislation:
These are the formal utterances of private persons or groups of them who are given a limited legislation authority to make laws touching matters which concerns themselves e. g, laws made by universities etc.
Both salmond and Gary have held that autonomous legislation it not properly speaking statutory law of the state at all, although it is law within the community which has imposed it.
5. Conclusion:
To conclude, I can say, that legislation consist in the declaration of legal rules by a competent authority conferring upon such rules, the force of law. It is either supreme or subordinate and difference between these two lies in a fact that the supreme legislation proceeds from the sovereign in the state while the subordinate legislation is dependent for its existence and validity on such sovereign authority.
Q. Define legislation. Distinguish between supreme and subordinate legislation. (1996), (1994)
Q. Explain supreme and subordinate legislation and describe various form of subordinate legislation. (1993)
1. Introduction:
The term legislation is derived from Latin words “legis” meaning law and “latum” meaning “to make”. Legislation means the making or setting of law. In wider sense, the term legislation is used to include all methods of law-making but in a restricted sense, it includes every expression of the legislation whether the same is directed to the making of law or not. The law that has its source in legislation is called enacted law, statute law or written law.
2. Definition Of Legislation:
I. According To Salmoned:
“Legislation is that source of law which consists in the declaration of legal rules by the competent authority.”
II. According To Gray:
“Legislation means the formal utterance of the legislative organs of the society.”
III. According To Holland:
“The making of general orders by our judges is as true legislation as is carried on by the crown.”
3. Legislation As Source Of Law:
Legislation as a source of law many be discussed by analyzing the following approach.
I. Analytical Approach:
The view of the analytical school is that typical law is a statute and legislation is the normal process of law making. They neither approve of the usurpation of the legislative functions by the judiciary, nor considered custom as a source of law.
II. Historical Approach:
The view of the Historical school is that legislation is the least creative of the sources of law. It has no independent creative role at all. Its only legitimate purpose is to give better from and made more effective the custom.
Criticism:
Both analytical and Historical school go to extremes. The mistake by the analytical school is that, it regards legislation as a sole source of law and does not attach any importance to the custom and precedent. The mistake of the Historical school is that, it does not regard legislation as a source of law.
According to Dean Pound:
Legislation is of two types, organizing and creative. The existence of the creative cannot be doubted in modern times when there is abnormal legislative activity.
4. Kinds Of Legislation:
According to Prof. Salmond, Legislation is of two kinds:
I. Supreme legislation
II. Subordinate Legislation
I. Supreme Legislation:
Supreme legislation is that which proceed from sovereign power in the state. It cannot be repealed, annulled or controlled by any other legislative authority.
According to Austinian Theory:
It is logically impossible for there to be any legal limitations on the sovereign authority. Sovereign on Austin’ s definition owes obedience to on one.
Example:
In England, Parliament is the supreme legislation authority. An Act of parliament cannot be held void for unreasonableness or it seems upon any other ground.
II. Subordinate Legislation:
Subordinate legislation is that which proceed from any authority other than the sovereign power and is therefore dependant for its continued existence and validity on some superior authority.
Example:
Legislation made by the Municipal corporation is the subordinate legislation.
A. Kinds Of Subordinate Legislation:
Salmond mentions five chief forms of subordinate legislation.
(i) Colonial legislation:
The laws made by the colonies and other dependencies of crown subject to the control of imperial parliament. However it is be noted, that after passing of the statute of West Minster of 1931, the dominion legislation have been powers to make may any law they please.
(ii) Executive legislation:
The laws made by the executive body in order to regulate the administrative functions of the state. The executive may also frame detailed rules and legislation as supplementing the statutory provisions of the legislature. There are certain checks or control on executive legislation vir.
(a) Parliamentary control which can modify, amend or refuse altogether the powers.
(b) Parliamentary supervision
(c) Judicial control
(d) Power must be handed over to trustworthy persons.
(e) Public opinion
(f) Experts opinion
(iii) Judicial legislation:
The superior Court are given limited powers to make general rules for the regulation of their own procedure. It is true legislation in the true sense to the term e. g., High Court rules and regulations.
(iv) Municipal legislation:
Municipal authorities are also allowed to make bye-laws for limited purpose within their areas. These are binding upon the people generally and offences against these by-laws are punishable.
(v) Autonomous Legislation:
These are the formal utterances of private persons or groups of them who are given a limited legislation authority to make laws touching matters which concerns themselves e. g, laws made by universities etc.
Both salmond and Gary have held that autonomous legislation it not properly speaking statutory law of the state at all, although it is law within the community which has imposed it.
5. Conclusion:
To conclude, I can say, that legislation consist in the declaration of legal rules by a competent authority conferring upon such rules, the force of law. It is either supreme or subordinate and difference between these two lies in a fact that the supreme legislation proceeds from the sovereign in the state while the subordinate legislation is dependent for its existence and validity on such sovereign authority.