Legislature
Legislature refers to a governing body that is charged with making laws and regulating them. This source of law consists of Acts and Ordinances created and approved by legislative entities . These legislative bodies can be identified as
- Parliament
- Congress
- Assembly
- Estates or state
The names used for legislative bodies vary based on the country. They are a branch of the government tasked with making laws for a country. Laws and legislature created must be approved by a majority for them to be enacted. Laws created by legislature are referred to as statutes.
Legislatives are used to develop law through
- Introducing new laws
- Alterations done to old laws
- Consolidating existing statutes
- Codifying exiting law of all sources.
Legislative bodies are unique to every country and few are as follows
| USA | The united states congress |
| UK | House of commons and house of lords |
| Kenya | Senate (upper house), National assembly (lower house) |
| India | Indian parliament that consists of a Lok Sabha and Rajya Sabha |
| Russia | State Duma, Federal assembly |
Forms of legislature in the world
- Supreme legislature
These legislature cannot be repealed, nullified or adjusted as they proceed from a supreme or superior power in the state. In UK, the parliament is identified as the supreme legislative authority and is expressed in the form of Acts of parliament.
- Subordinate legislature
Colonial legislations, executive legislations, judicial legislations, municipal legislations, and autonomous legislation are considered under this category. These are legislatures which are passed from other legislative authorities other than the supreme authority. They can be challenged, removed or altered by the supreme authority and they are under the power vested on the parliament.
For example, colonies of England during the 20th century adopted many acts and ordinances based on the legislature of UK parliament.
- Delegated legislature
The parliament vests some power upon a minister , government entity, or another party to create legislature. Such delegations remain under the power of the legislative body and can be challenged in courts.
Legislature is prominent compared to other sources as it has the ability to adopt to modern society, it is backed by the state, very easy to be interpreted. Supreme courts are tasked with the interpretation when legislature is unclear.
Judicial precedents
Judicial proceeding or case laws are created on past judgement of similar cases when a clear or exact law is unavailable within other sources of laws. Past records of proceeding can be used as a source of law to decide judgements for future cases.
There are two fundamental principles that govern case laws
- The doctrine of binding standard
- The hierarchy of the court system
The doctrine of binding standard
It is important to identify that judges are not bound to use all the judgments from similar cases, there are two factors to be considered when choosing which decisions are binding.
Ratio decidendi
The reasoning or the logic of the decision links the decision of the latter case of to the former case. The ratio is nothing to do with the specifics of the case.
Obiter dicta
Not all statements in a judgement is legally binding. Only statements based on facts found in a particular case and on which the decision is based on the ratio of the case. All other statements are merely comments of the judge, which are called obiter dicta (things said by the way or in passing)
Hierarchy of courts
The court’s judgment creates a precedence that must be followed in similar instances until and until it is reversed by a higher court than the one that initially formed it or by an Act of Parliament. For example, a case law originated in a lower court (i.e., crown, county and Magistrate court) can be overturned by a higher court (i.e. supreme court, court of appeal )
| Advantages | Disadvantages |
| It confirms certainty of a judgement | Chance of illogical decisions |
| Provide flexibility to uncommon cases and provide reforms to existing judicial precedents | Lack of details can lead to an unfair result |
| A much realistic source of law | Interpretation of cases are complex |
| Judge made laws are made by judges who are not democratically elected |
Equity
Common law is not the most perfect system and can have unprecedented defects. Few problems with common law are as follows
- They are too rigid and inflexible at times.
- Procedure is prioritized over flexibility, making justice slow and expensive to partake in.
- The only solution was compensation for damages, which was not favored by each and every victim. UK citizens petitioned the king directly and such cases were delegated to lord chancellor as appeals.
This led to the development of equity, which concentrated on fairness, justice , mortality rather than on previous judgements or pre-existing laws. It was initially developed in Great Britain.
Original objectives of equity were
- Development of laws or solutions for cases upon absence of a clear procedure in new complicated cases.
- Development of remedies to counter defects or injustices raised from the common law.
Simply, Equity is not intended to replace the common law. It is just a remedy for shortcoming of common law and a way to formulate new laws rather than a substitute.
Maxims of equity serves as a set of basic principles in which equity is formulated on.
They are
- Equity will not suffer a wrong to be without a remedy (ubi jus ibi remedium)
- He who seeks equity must do equity
- He who comes to equity must come with clean hands
- Delay defeats equity
- Equity acts in personam (against a person)
Equity cannot be described with a specific set of rules as its very different from other sources of law. It’s more of a concept of principles that propels law.
Religion
Most countries have a state religion included in legislature itself. Due to common acceptance of religious
Customs
Customs holds very basic presence in sources of law, but applicable when other sources fails.
Public International law
These laws originate through international treaties signed by the government. For example
- The Vienna Convention on the Law of Treaties (VCLT) and the Geneva Conventions covering humanitarian law
- Basic prohibitions against torture, genocide, and crimes against humanity
Opinions of the jurists/writers
There are popular literature that acts as a sources of law due of wide acceptance among their peers.
References
N.V. Paranjape, Studies in Jurisprudence & Legal Theory (9th ed. 2019).