7/6/2020 Compare the relative importance of Legislation with Custom and Precedent.

ecedent. Also explain the advantages and disadvantages of Legislation…

Compare the relative importance of Legislation

with Custom and Precedent. Also explain the
advantages and disadvantages of Legislation as a
source of law
By Avantika Goel - 21/12/2016

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

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7/6/2020 Compare the relative importance of Legislation with Custom and Precedent. Also explain the advantages and disadvantages of Legislation…

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 —

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7/6/2020 Compare the relative importance of Legislation with Custom and Precedent. Also explain the advantages and disadvantages of Legislation…

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.

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7/6/2020 Compare the relative importance of Legislation with Custom and Precedent. Also explain the advantages and disadvantages of Legislation…

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.

Avantika Goel
Lawyer

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