SUMMARY.
| Sources of law | Formal—source of the authority of the law. |
| Material—source of the contents of the law. | |
| Material sources | Legal—immediate and legally recognised. |
| Historical—remote and not legally recognised. | |
| Legal sources | 1. Legislation—enacted law. |
| 2. Custom—customary law. | |
| 3. Precedent—case-law. | |
| 4. Professional opinion—juristic law. | |
| 5. Agreement—conventional law. | |
| Grounds of the recognition of these sources. | |
| Operation of sources | Constitutive—adding new law to old. |
| Abrogative—substituting new law for old. | |
| Extent of abrogative power possessed by the sources. | |
| Relation between sources of law and sources of rights. | |
| Legal principles | Ultimate—without legal sources. |
| Derivative—drawn from legal sources. | |
CHAPTER VII.
LEGISLATION.
§ 50. The Nature of Legislation.
Legislation is that source of law which consists in the declaration of legal rules by a competent authority. It is such an enunciation or promulgation of principles as confers upon them the force of law. It is such a declaration of principles as constitutes a legal ground for their recognition as law for the future by the tribunals of the state.
Although this is the strict and most usual application of the term legislation, there are two other occasional uses of it which require to be distinguished. It is sometimes used in a wide sense to include all methods of law-making. To legislate is to make new law in any fashion. Any act done with the intent and the effect of adding to or altering the law is, in this wider sense, an act of legislative authority. As so used, legislation includes all the sources of law, and not merely one of them. “There can be no law,” says Austin,[[111]] “without a legislative act.” Thus when judges establish a new principle by means of a judicial decision, they may be said to exercise legislative, and not merely judicial power. Yet this is clearly not legislation in the strict sense already defined. The law-creative efficacy of precedent is to be found not in the mere declaration of new principles but in the actual application of them. Judges have in certain cases true legislative power—as where they issue rules of court-but in ordinary cases the judicial declaration of the law, unaccompanied by the judicial application of it, has no legal authority whatever. So the act of the parties to a contract, in laying down rules of special law for themselves to the exclusion of the common law, may be regarded as an exercise of legislative power. But though they have made law, they have made it by way of mutual agreement for themselves, not by way of authoritative declaration for other persons.
The writers who make use of the term in this wide sense divide legislation into two kinds, which they distinguish as direct and indirect. The former is legislation in the narrow sense—the making of law by means of the declaration of it. Indirect legislation, on the other hand, includes all other modes in which the law is made.[[112]]
In a third sense legislation includes every expression of the will of the legislature, whether directed to the making of law or not. In this use, every act of Parliament is an instance of legislation, irrespective altogether of its purpose and effect. The judicature, as we have seen, does many things which do not fall within the administration of justice in its strict sense; yet in a wider use the term is extended to include all the activities of the courts. So here, the legislature does not confine its action to the making of law, yet all its functions are included within the term legislation. An act of Parliament may do no more than ratify a treaty with a foreign state, or alter the calendar, or establish a uniform time throughout the realm, or make some change in the style and title of the reigning sovereign, or alter the coinage, or appropriate public money, or declare war or make peace, or grant a divorce, or annex or abandon territory. All this is legislation in a wide sense, but it is not that declaration of legal principles with which, as one of the sources of law, we are here alone concerned.
Law that has its source in legislation may be most accurately termed enacted law, all other forms being distinguished as unenacted. The more familiar term, however, is statute law as opposed to the common law; but this, though sufficiently correct for most purposes, is defective, inasmuch as the word statute does not extend to all modes of legislation, but is limited to acts of Parliament. Blackstone and other writers use the expressions written and unwritten law to indicate the distinction in question. Much law, however, is reduced to writing, even in its inception, besides that which originates in legislation. The terms are derived from the Romans, who meant by jus non scriptum customary law, all other, whether enacted or unenacted, being jus scriptum. We shall see later, that according to the older theory, as we find it in Blackstone and his predecessors, all English law proceeds either from legislation or from custom. The common law was customary, and therefore, adopting the Roman usage, unwritten law. All the residue was enacted, and therefore written law.[[113]]