Q. 18 (c). Compare the relative importance of Legislation with Custom and Precedent. Also explain the advantages and disadvantages of Legislation as a source of law.
Ans. Importance of Legislation as a Source of Law—Legislation as a source of law is gaming more and more importance in modem times so much so that the significance of custom and precedent is receding gradually. Historically also legislation has always been recognised as an important source of law as compared with other sources. There are two obvious reasons for legislation being regarded as one of the most important sources of law. Firstly, it involves laying down of legal rules by the legislatures which the State recognises as law. Secondly, it has the force and authority of the State. It is for this reason that Dias and Hughes have rightly said that deliberate law-making by an authoritative power i.e., the State is called `legislation’ provided that authority is duly recognised as the supreme power by the courts. Relative Merit of Legislation Over Precedent—
I . The legislation has its source in the law making will of the State whereas precedent has its source in judicial decisions.
2. Legislation is imposed on courts by the legislature but prece-dents are created by the courts themselves.
3. Legislation denotes formal declaration of law by the legislature whereas precedents are recognition and application of new principles of law by courts in the administration of justice.
4. Legislation is enacted before a case arises but the precedent comes into existence only after the case has arisen and taken for decision of 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 retro-spective in nature.
7. Legislation is declared or published before it is brought into force but precedent comes into force at once, i.e., as soon as decision is pronounced.
8. Legislation is done with the intention of law-making but it is not so in the case of the precedent. The precedent which includes ratio decidend i 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 legis-lature but the precedent based on the case law is not easily known to the public. At times the lawyers who deal with law are ignorant about the existing case-law.
10. Legislation involves law-making by deductive method whereas case-law is created by resort to inductive method.
Relative Merits of Legislation Over Custom —
I. The existence of legislation is essentially de jure whereas cus-tomary law exists de facto.
2. Legislation grows out of theoretical principles but customary law grows out of practice and long existence.
3. Legislation as a source is historically much latter as compared with custom which is the oldest form of law.
4. Legislation is an essential characteristic of modern society whereas the customary law developed in primitive societies.
5. Legislation is complete, precise, written in form and easily accessible, but customary law is mostly unwritten am non scriptum) and is difficult to trace.
6. Legislation results out of the deliberations but custom grows within the society in natural course.
Advantages of Legislation — The main advantages of Legislation are as under —
I. Abrogative Power—It has power to alter or abolish old law, which power is not possessed by other sources.
2. Efficiency—It divides the functions of making law and adminis-tering it between the Legislature and the judiciary.
3. Declaration — It provides that rules of law shall be known before they are enforced.
4. dependence of Accidental Legislation — Legislation is indepen-dent arises litigation, it need not wait until the actual litigation
5. Superior in Form —It is superior in form, brief, clear, easily ac-cessible and knowable as against case law which is a gain of sense in a ton of useless matter.
Disadvantages of Legislation — The defects of legislation are–
I. Rigidity—Law in the legislation is rigid whereas law in the precedents is elastic and flexible.
2. Based on Hypothesis — Legislation mostly proceeds on hypothetical facts, and as such enacted law is often found to be imperfect in its application to the complex problems arising in actual life whereas prece-dents grow out of the practical exigencies and expediency.
3. Too Much Importance to the Wordings—Legislation attaches too much importance to its wordings, and so, if the expression be defective the law in it gets easily twisted. In the precedents, the wording matters little; the actual preamble employed alone counts.
Taking into account the advantages and disadvantages of legislation as compared to other forms of legal development, we find that its advantages do greatly outweigh its defects.