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View Full Version : Q14. Define legislation? How it is superior to precedent. (2002) (1999)



vustudents
09-06-2011, 11:55 PM
1. Introduction:
Law may be found to proceed form many legal sources. One of which is enacted law having its source in legislation and the other is case law having its source in precedent. As regards legislation, it has its source in the law making will of the state on the other hand, precedent has its source in the ratio decidendi and obiter dicta of the judicial decision. Both legislation and precedent has advantages over each other.
2. Definition Of Legislation:
I. According To Salmond:
“Legislation in that source of law which consists in the declaration of legal rules by the competent authority.”
II. According To Gray:
“Legislation means the formal utterances of the legislative organs of the society.”
3. Definition Of Precedent:
I. According To Prof. Osborn:
“Precedent is a judgment or decision of a Court of law cited as an authority for deciding a similar set of facts.”
II. According To Prof. keeton:
“A judicial precedent is a judicial decision to which authority has in some measure been attached.”
4. Advantages Of Legislation Over Precedents:
Following are the advantages which legislation has over precedent.
(i) Abrogative power:
Legislation has abrogative power. It can abolish the existing law, which necessary for legal reform. Precedent dose not enjoy the abrogative power and it cannot reverse the existing law.
(ii) Advantage of efficiency:
In legislation, the doctrine of separation of power results in increased efficiency. The duty of making laws is reserved for the legislature, while that of interpreting it for the judiciary so in case of precedents, the functions of legislation and interpretation are combined and that is hardly desirable.
(iii) Satisfaction of principle of natural justice:
Legislation satisfies the requirement of natural justice that laws shall be knows before they are enforced. Law is formally declared to the proper and will be subject to punishment if they violate the same. In case of precedent, it is created and declared in the very act of applying and enforcing it.
(iv) Law for future cases:
Legislation making rules for cases that have not yet arisen, but precedent must wait until the actual concrete incident comes before the Courts for decision.
(v) Power to make anticipatory rules:
New points may be arisen in both a statute and case law. There may be an omission which has to be made good or a doubt to be settled or a defect cured. Legislature can settle this in on time, when is existence is brought to its notice. But precedent must wait, until by chance, the very case arises or the decision is challenged in a superior Court.
(vi) Superior in form:
Legislation is superior in form to precedent. It is brief, clear easily accessible and knowable while the quest for the principle of law in a judicial decision entails a long search through multitudinous reports.
(vii) General Supremacy over precedent:
Legislation is a superior over precedent as law can be made against some precedent but the precedent cannot exist opposed to statute law.
(viii) Suitable for fact changes:
Legislation is some suitable for fast changes which time needed. According to prof Friedman “It will be difficult to deny that in modern circumstances development of law through precedent is slow, costly, cumbrous and often reactionary. It is therefore less suitable for a time of fast changes and restlessness.
5. Conclusion:
To conclude I can say, that both legislation and precedent are equally important and one cannot achieve its object without the other. For a planned progress legislation is necessary. To interpret it and to apply and to adapt it to particular case, case , law is equally necessary. Both these sources contribute equally to the development of law.