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]
§ 51. =Supreme and Subordinate Legislation.=
Legislation is either _supreme_ or _subordinate_. The former is that
which proceeds from the supreme or sovereign power in the state, and
which is therefore incapable of being repealed, annulled, or controlled
by any other legislative authority. Subordinate legislation is that
which proceeds from any authority other than the sovereign power, and is
therefore dependent for its continued existence and validity on some
superior or supreme authority. The legislation of the Imperial
Parliament is supreme, for “what the parliament doth, no authority upon
earth can undo.”[114] All other forms of legislative activity recognised
by the law of England are subordinate. They may be regarded as having
their origin in a delegation of the power of Parliament to inferior
authorities, which in the exercise of their delegated functions remain
subject to the control of the sovereign legislature.
The chief forms of subordinate legislation are five in number.
(1) _Colonial._—The powers of self-government entrusted to the colonies
and other dependencies of the Crown are subject to the control of the
Imperial legislature. The Parliament at Westminster may repeal, alter,
or supersede any colonial enactment, and such enactments constitute,
accordingly, the first and most important species of subordinate
legislation.
(2) _Executive_.—The essential function of the executive is to conduct
the administrative departments of the state, but it combines with this
certain subordinate legislative powers which have been expressly
delegated to it by Parliament, or pertain to it by the common law. A
statute, for example, occasionally entrusts to some department of the
executive government the duty of supplementing the statutory provisions
by the issue of more detailed regulations bearing on the same matter. So
it is part of the prerogative of the Crown at common law to make laws
for the government of territories acquired by conquest, and not yet
possessed of representative local legislatures.
(3) _Judicial_.—In the same way, certain delegated legislative powers
are possessed by the judicature. The superior courts have the power of
making rules for the regulation of their own procedure. This is judicial
legislation in the true sense of the term, differing in this respect
from the so-called legislative action of the courts in creating new law
by way of precedent.
(4) _Municipal_.—Municipal authorities are entrusted by the law with
limited and subordinate powers of establishing special law for the
districts under their control. The enactments so authorised are termed
by-laws, and this form of legislation may be distinguished as municipal.
(5) _Autonomous_.—All the kinds of legislation which we have hitherto
considered proceed from the state itself, either in its supreme or in
one or other of its many subordinate departments. But this is not
necessarily the case, for legislation is not a function that is
essentially limited to the state. The declaration of new principles
amounts to legislation not because it is the voice of the state, but
because it is accepted by the state as a sufficient legal ground for
giving effect to those new principles in its courts of justice. The
_will_ of the state is, indeed, as we have already seen, the one and
only _formal_ source of law; but it does not follow from this that the
_word_ of the state is the sole form of that _material_ source of the
law which is called legislation. In the allowance of new law the state
may hearken to other voices than its own. In general, indeed, the power
of legislation is far too important to be committed to any person or
body of persons save the incorporate community itself. The great bulk of
enacted law is promulgated by the state in its own person. But in
exceptional cases it has been found possible and expedient to entrust
this power to private hands. The law gives to certain groups of private
individuals limited legislative authority touching matters which concern
themselves. A railway company, for example, is able to make by-laws for
the regulation of its undertaking. A university may make statutes
binding upon its members. A registered company may alter those articles
of association by which its constitution and management are determined.
Legislation thus effected by private persons, and the law so created,
may be distinguished as _autonomic_.
There is a close resemblance between autonomic law and conventional law,
but there is also a real distinction between them. The creation of each
is a function entrusted by the state to private persons. But
conventional law is the product of agreement, and therefore is law for
none except those who have consented to its creation. Autonomic law, on
the contrary, is the product of a true form of legislation, and is
imposed by superior authority _in invitos_. The act of a general meeting
of shareholders in altering the articles of association is an act of
autonomous legislation, because the majority has the power of imposing
its will in this respect upon a dissentient minority. All the
shareholders may in fact agree, but the law-creating efficacy of their
resolution is independent of any such accidental unanimity. We may say,
if we please, that with respect to consenting shareholders the
resolution is an agreement, while with respect to dissentients it is an
act of legislative authority. The original articles of association, on
the other hand, as they stand when the company is first formed,
constitute a body of conventional, not autonomic law. They are law for
all shareholders by virtue of their own agreement to become members of
the company, and are not the outcome of any subsequent exercise of
legislative authority vested in the majority.[115]
§ 52. =Relation of Legislation to other Sources.=
So great is the superiority of legislation over all other methods of
legal evolution, that the tendency of advancing civilisation is to
acknowledge its exclusive claim, and to discard the other instruments as
relics of the infancy of law. The expressed will of the state tends to
obtain recognition not only as the sole formal source of law, but as its
exclusive material source also. Statute law has already become the type
or standard, from which the other forms are more or less abnormal
variations. Nothing is more natural than this from our modern point of
view, nothing less natural from that of primitive jurisprudence. Early
law is conceived as _jus_ (the principles of justice), rather than as
_lex_ (the will of the state). The function of the state in its earlier
conception is to _enforce_ the law, not to _make_ it. The rules so to be
enforced are those rules of right which are found realised in the
immemorial customs of the nation, or which are sanctioned by religious
faith and practice, or which have been divinely revealed to men. It is
well known that the earliest codes were the work, not of mortal men, but
of the gods.[116] That the material contents of the law depend upon the
express or tacit will of the state, that principles sanctioned by
religion or immemorial usage are laws only so long as the prince chooses
to retain them unaltered, that it is within the powders and functions of
political rulers to change and subvert the laws at their own good
pleasure, are beliefs which mark considerable progress along the road of
political and legal development. Until such progress has been made, and
until the petrifying influence of the primitive alliance of law with
religion and immutable custom has been to some extent dissolved, the
part played by human legislation in the development of the legal system
is necessarily small, and may be even non-existent. As it is the most
powerful, so it is the latest of the instruments of legal growth.
In considering the advantages of legislation, it will be convenient to
contrast it specially with its most formidable rival, namely precedent.
So considered, the first virtue of legislation lies in its abrogative
power. It is not merely a source of new law, but is equally effective in
abolishing that which already exists. But precedent possesses merely
constitutive efficacy; it is capable of producing very good law—better
in some respects than that which we obtain by way of legislation—but its
defect is that, except in a very imperfect and indirect manner, its
operation is irreversible. What it does, it does once for all. It cannot
go back upon its footsteps, and do well what it has once done ill.
Legislation, therefore, is the indispensable instrument, not indeed of
legal growth, but of legal reform. As a destructive and reformative
agent it has no equivalent, and without it all law is as that of the
Medes and Persians.
The second respect in which legislation is superior to precedent is that
it allows an advantageous division of labour, which here, as elsewhere,
results in increased efficiency. The legislature becomes differentiated
from the judicature, the duty of the former being to make law, while
that of the latter is to interpret and apply it. Speaking generally, a
legal system will be best administered, when those who administer it
have this as their sole function. Precedent, on the contrary, unites in
the same hands the business of making the law and that of enforcing it.
It is true, however, that legislation does not necessarily involve any
such division of functions. It is not of the essence of this form of
legal development that it should proceed from a distinct department of
the state, whose business it is to give laws to the judicature. It is
perfectly possible for the law to develop by a process of true
legislation, in the absence of any legislative organ other than the
courts of justice themselves. We have already noticed the existence of
this judicial legislation, in considering the various forms of
subordinate legislative power. The most celebrated instance of it is the
case of the Roman praetor. In addition to his purely judicial functions,
he possessed the _jus edicendi_, that is to say, legislative powers in
respect of the matters pertaining to his office. It was customary for
each praetor at the commencement of his term of office to publish an
_edictum_ containing a declaration of the principles which he intended
to observe in the exercise of his judicial functions. Each such edict
was naturally identical in its main outlines with that which preceded
it, the alterations made in the old law by each successive praetor being
for the most part accepted by his successors. By this exercise of
legislative power on the part of judicial officers, a very considerable
body of new law was in course of time established, distinguished as the
_jus praetorium_ from the older _jus civile_. Powers of judicial
legislation, similar in kind, though less in extent, are at the present
day very generally conferred upon the higher courts of justice. Yet
though not theoretically necessary, it is certainly expedient, that at
least in its higher forms the function of law-making should be vested in
a department of the state superior to and independent of the judicature.
A third advantage of statute law is that the formal declaration of it is
a condition precedent to its application in courts of justice. Case-law,
on the contrary, is created and declared in the very act of applying and
enforcing it. Legislation satisfies the requirement of natural justice
that laws shall be known before they are enforced; but case-law operates
retrospectively, being created _pro re nata_, and applied to facts which
are prior in date to the law itself.[117]
Fourthly, legislation can by way of anticipation make rules for cases
that have not yet arisen, whereas precedent must needs wait until the
actual concrete instance comes before the courts for decision. Precedent
is dependent on, legislation independent of, the accidental course of
litigation. So far as precedent is concerned, a point of law must remain
unsettled, until by chance the very case arises. Legislation can fill up
a vacancy, or settle a doubt in the legal system, as soon as the
existence of this defect is called to the attention of the legislature.
Case-law, therefore, is essentially incomplete, uncertain, and
unsystematic; while if statute law shows the same defects, it is only
through the lethargy or incapacity of the legislature. As a set-off
against this demerit of precedent, it is to be observed that a rule
formulated by the judicature in view of the actual case to which it is
to be applied is not unlikely to be of better workmanship, and more
carefully adapted to the ends to be served by it, than one laid down _a
priori_ by the legislature.
Finally, statute law is greatly superior to case-law in point of form.
The product of legislation assumes the form of abstract propositions,
but that of precedent is merged in the concrete details of the actual
cases to which it owes its origin. Statute law, therefore is brief,
clear, easily accessible and knowable, while case-law is buried from
sight and knowledge in the huge and daily growing mass of the records of
bygone litigation. Case-law is gold in the mine—a few grains of the
precious metal to the ton of useless matter—while statute law is coin of
the realm ready for immediate use.
This very perfection of form, however, brings with it a defect of
substance from which case-law is free. Statute law is embodied in an
authoritative form of written words, and this literary expression is an
essential part of the law itself. It is the duty of the courts to apply
the letter of the law. They are concerned with the spirit and reason of
it only so far as the spirit and reason have succeeded in finding
expression through the letter. Case-law, on the contrary, has no letter.
It has no authoritative verbal expression, and there is no barrier
between the courts of justice and the very spirit and purpose of the law
which they are called on to administer. In interpreting and applying
statute law, the courts are concerned with words and their true meaning;
in interpreting and applying case-law, they are dealing with ideas and
principles and their just and reasonable contents and operation. Statute
law is rigid, straitly bound within the limits of authoritative
formulae; case-law, with all its imperfections, has at least this merit,
that it remains in living contact with the reason and justice of the
matter, and draws from this source a flexibility and a power of growth
and adaptation which are too much wanting in the _litera scripta_ of
enacted law.
§ 53. =Codification.=
The advantages of enacted law so greatly outweigh its defects that there
can be no doubt as to the ultimate issue of its rivalry with the other
forms of legal development and expression. The whole tendency in modern
times is towards the process which, since the days of Bentham, has been
known as codification, that is to say, the reduction of the whole
_corpus juris_, so far as practicable, to the form of enacted law. In
this respect England lags far behind the Continent. Since the middle of
the eighteenth century the process has been going on in European
countries, and is now all but complete. Nearly everywhere the old medley
of civil, canon, customary, and enacted law has given place to codes
constructed with more or less skill and success. Even in England, and
the other countries to which English law has spread, tentative steps are
being taken on the same road. Certain isolated and well-developed
portions of the common law, such as the law of bills of exchange, of
partnership, and of sale, have been selected for transformation into
statutory form. The process is one of exceeding difficulty, owing to the
complexity and elaboration of English legal doctrine. Many portions of
the law are not yet ripe for it, and premature codification is worse
than none at all. But the final result is not doubtful.
Codification must not be understood to involve the total abolition of
precedent as a source of law. Case-law will continue to grow, even when
the codes are complete. The old theory, now gradually disappearing, but
still true in most departments of the law, is that the common law is the
basis and groundwork of the legal system, legislation being nothing more
than a special instrument for its occasional modification or
development. Unenacted law is the principal, and enacted law is merely
accessory. The activity of the legislature is called for only on special
occasions to do that which lies beyond the constructive or remedial
efficacy of the common law. Codification means not the total
disappearance of case-law, but merely the reversal of this relation
between it and statute law. It means that the substance and body of the
law shall be enacted law, and that case-law shall be incidental and
supplementary only. In the most carefully prepared of codes subtle
ambiguities will come to light, real or apparent inconsistencies will
become manifest, and omissions will reveal themselves. No legislative
skill can effectually anticipate the complexity and variety of the
facts. The function of precedent will be to supplement, to interpret, to
reconcile, and to develop the principles which the code contains. Out of
the code itself, therefore, a body of case-law will grow, as a judicial
commentary and supplement. It will be expedient from time to time that
this supplementary and explanatory case-law be itself codified and
incorporated into successive editions of the code. But so often as this
is done, the process of interpretation will begin again with the like
results.
§ 54. =The Interpretation of Enacted Law.=
We have seen that one of the characteristics of enacted law is its
embodiment in authoritative formulae. The very words in which it is
expressed—the _litera scripta_—constitute a part of the law itself.
Legal authority is possessed by the letter, no less than by the spirit
of the enactment. Other forms of law (with the exception of written
conventional law, which in this respect stands by the side of statutory)
have no fixed and authoritative expression. There is in them no letter
of the law, to stand between the spirit of the law and its judicial
application. Hence it is that in the case of enacted law a process of
judicial _interpretation_ or _construction_ is necessary, which is not
called for in respect of customary or case-law. By interpretation or
construction is meant the process by which the courts seek to ascertain
the meaning of the legislature through the medium of the authoritative
forms in which it is expressed.
Interpretation is of two kinds, which Continental lawyers distinguish as
_grammatical_ and _logical_. The former is that which regards
exclusively the verbal expression of the law. It does not look beyond
the _litera legis_. Logical interpretation, on the other hand, is that
which departs from the letter of the law, and seeks elsewhere for some
other and more satisfactory evidence of the true intention of the
legislature. It is essential to determine with accuracy the relations
which subsist between these two methods. It is necessary to know in what
circumstances grammatical interpretation is alone legitimate, and when
on the contrary it is allowable to accept, instead, the divergent
results that may be attainable by way of logical interpretation. In
other words, we have to determine the relative claims of the letter and
the spirit of enacted law.
The true principles on this matter seem to be the following. The duty of
the judicature is to discover and to act upon the true intention of the
legislature—the _mens_ or _sententia legis_. The essence of the law lies
in its spirit, not in its letter, for the letter is significant only as
being the external manifestation of the intention that underlies it.
Nevertheless in all ordinary cases the courts must be content to accept
the _litera legis_ as the exclusive and conclusive evidence of the
_sententia legis_. They must in general take it absolutely for granted
that the legislature has said what it meant, and meant what it has said.
_Ita scriptum es_ is the first principle of interpretation. Judges are
not at liberty to add to or take from or modify the letter of the law,
simply because they have reason to believe that the true _sententia
legis_ is not completely or correctly expressed by it. That is to say,
in all ordinary cases grammatical interpretation is the sole form
allowable.
To this general principle there are two exceptions. There are two cases
in which the _litera legis_ need not be taken as conclusive, and in
which the _sententia legis_ may be sought from other indications. The
first of these cases is that in which the letter of the law is
_logically defective_, that is to say, when it fails to express some
single, definite, coherent, and complete idea.
The logical defects by which the _litera legis_ may be affected are
three in number. The first is ambiguity; for a statute, instead of
meaning one thing, may mean two or more different things. In such case
it is the right and duty of the courts to go behind the letter of the
law, and to ascertain from other sources, as best they can, the true
intention which has thus failed to attain perfect expression.
When a statutory provision is capable of two meanings, it is commonly,
though not invariably, the case that one of these is more natural,
obvious, and consonant with the ordinary use of language than the other.
The interpretation of an ambiguous law is therefore of two kinds,
according as it accepts the more natural and obvious meaning, or rejects
it in favour of another which conforms better to the intention of the
legislature, though worse to the familiar usages of speech. The former
mode of interpretation is termed literal or strict, and the latter may
be distinguished as equitable. The general principle is that
interpretation must be literal, unless there is some adequate reason to
the contrary. In the absence of sufficient indications that the
legislature has used words in some less natural and obvious sense, their
literal and ordinary signification will be attributed to them. The
maintenance of a just balance between the competing claims of these two
forms of interpretation is one of the most important elements in the
administration of statute law. On each side there are dangers to be
avoided. Undue laxity, on the one hand, sacrifices the certainty and
uniformity of the law to the arbitrary discretion of the judges who
administer it; while undue strictness, on the other hand, sacrifices the
true intent of the legislature and the rational development of the law
to the tyranny of words. _Scire leges_, said the Romans,[118] _non hoc
est verba earum tenere, sed vim ac potestatem_.[119]
A second logical defect of statutory expression is inconsistency. A law,
instead of having more meanings than one, may have none at all, the
different parts of it being repugnant, so as to destroy each other’s
significance. In this case it is the duty of the judicature to ascertain
in some other way the true _sententia legis_, and to correct the letter
of the law accordingly.
Lastly, the law may be logically defective by reason of its
incompleteness. The text, though neither ambiguous nor inconsistent, may
contain some _lacuna_ which prevents it from expressing any logically
complete idea. For example, where there are two alternative cases, the
law may make provision for one of them, and remain silent as to the
other. Such omissions the courts may lawfully supply by way of logical
interpretation. It is to be noted, however, that the omission must be
such as to make the statute _logically_ incomplete. It is not enough
that the legislature meant more than it said, and failed to express its
whole mind. If what it has said is logically complete—giving expression
to a single, intelligible, and complete idea—the courts have no lawful
concern with anything else that the legislature may have meant but not
said. Their duty is to apply the letter of the law, therefore they may
alter or add to it so far as is necessary to make its application
possible, but they must do nothing more.
It has been already said that there are two cases in which logical
interpretation is entitled to supersede grammatical. The first of these,
namely that of some logical defect in the _litera legis_, has been
considered. The second is that in which the text leads to a result so
unreasonable that it is self-evident that the legislature could not have
meant what it has said. For example, there may be some obvious clerical
error in the text, such as a reference to a section by the wrong number,
or the omission of a negative in some passage in which it is clearly
required.
In considering the logical defects of the _litera legis_, we have
tacitly assumed that by going behind the defective text it is always
possible to discover a logically perfect _sententia legis_. We have
assumed that the whole duty of the courts is to ascertain the true and
perfect intention which has received imperfect expression. This is not
so, however. In a great number of cases the defects of the _litera
legis_ are simply the manifestation of corresponding defects in the
_sententia_. If the legislature speaks ambiguously, it is often because
there is no single and definite meaning to be expressed. If the words of
the legislature are self-contradictory, it is possibly due to some
repugnancy and confusion in the intention itself. If the text contains
omissions which make it logically imperfect, the reason is more often
that the case in question has not occurred to the mind of the
legislature, than that there exists with respect to it a real intention
which by inadvertence has not been expressed.
What, then, is the rule of interpretation in such cases? May the courts
correct and supplement the defective _sententia legis_, as well as the
defective _litera legis_? The answer is that they may and must. If the
letter of the law is logically defective, it must be made logically
perfect, and it makes no difference in this respect whether the defect
does or does not correspond to one in the _sententia legis_ itself.
Where there is a genuine and perfect intention lying behind the
defective text, the courts must ascertain and give effect to it; where
there is none, they must ascertain and give effect to the intention
which the legislature presumably would have had, if the ambiguity,
inconsistency, or omission had been called to mind. This may be regarded
as the _dormant_ or _latent_ intention of the legislature, and it is
this which must be sought for as a substitute in the absence of any real
and conscious intention.[120]
In the case of the _sententia_, as formerly in that of the _litera
legis_, it is to be noticed that the only defects which the courts may
remedy are _logical_ defects. That the intention of the legislature is
ethically defective, is not a fact with which the judicature has any
concern. The _sententia legis_ might have been wiser, juster, or more
expedient, had it been wider, or narrower, or other than it actually is.
But the courts have no authority to detract from it, add to it, or alter
it, on that account. It may be that had a certain case been brought to
the notice of the legislature, the statute would have been extended to
cover it; but so long as it is logically complete and workable without
the inclusion of this case, it must stand as it is. If a statute makes a
provision as to sheep, which in common sense ought to have been extended
to goats also, this is the affair of the legislature, not of the courts.
To correct the _sententia legis_ on logical grounds is a true process of
interpretation; it fulfils the ultimate or dormant, if not the immediate
or conscious intention of the legislature. But to correct it on ethical
grounds is to assume and exercise legislative power.
SUMMARY.
Legislation—Its three senses:
1. All forms of law-making {Direct legislation.
{Indirect legislation.
2. All expression of the will of the legislature.
3. The creation of law by way of authoritative declaration.
Law {Enacted—Statute—Written.
{Unenacted—Common—Unwritten.
{Supreme—by the Imperial Parliament.
{ {1. Colonial.
Legislation { {2. Executive.
{Subordinate {3. Judicial.
{4. Municipal.
{5. Autonomous.
Historical relation of legislation to other sources of law.
Superiority of legislation over other sources of law.
Codification.
{Grammatical—based on the _litera legis_ exclusively.
{
Interpretation { { _Litera legis_ logically {Ambiguous.
{Logical { defective. {Inconsistent.
{ {Incomplete.
{ _Litera legis_ containing self-evident error.
Strict and equitable interpretation.
Extensive and restrictive interpretation.