LEGISLATION:

Legislation is a law making body. Among all the sources of law, legislation is one of the most patent and
sovereign source law making. It has all the powers of enacting laws and repealing old laws. The term
"legislation" is derived from two Latin words, legis meaning law and latum meaning to make, put or set.
Entomologically legislation means the making or the setting of law. There are two kinds of legislation-
Supreme legislation and subordinate legislation.

Definition of Legislation:

Some important definitions of legislation are as follows -

Salmond-

According to Salmond, "Legislation is that source of law which consists in the declaration of legal
rules by a competent authority".

Austin -

According to John Austin, legislation includes an activities, which results into law making or
amending, transforming or inserting new provisions in the existing law. Thus "there can be no law
without a legislative act.

Holland-

According to Holland, “the making of general orders by our judges is as true legislation as is
carried on by the Crown", but we confine ourselves to the use of them term legislation in the sense
which is commonly understood.

Kinds of Legislation -

According to Sir John Salmond, legislation is either supreme or subordinate.

I) Supreme legislation:

Supreme legislation is that which proceeds from the sovereign power in the state. It cannot be
repealed, annulled or controlled by any other legislative authority. It is enacted by the highest law-
making authority in the state.

II) Subordinate legislation:

Subordinate legislation is legislation made by the authority or other than the supreme authority in
the state in the exercise of the power delegated to it by Supreme authority. This is controlled by the

Prepared By: Kamran Zaib 1|P a g e

supreme authority. Thus legislative authority is dependent for its continued existence and validity on
the supreme authority. It can be repealed. Subordinate or delegated legislation increased in 19th and
20th century because of number of a reaction.

Kinds of subordinate legislation -

According to Salmond, delegated legislation is that which proceed from any authority other than
sovereign power. Salmond refers to five Kinds of Subordinate Legislation which are as follows -

(1) Municipal legislation

(2) Executive legislation
(3) Colonial legislation
(4) Autonomous legislation
(5) Judicial legislation

(1) Municipal legislation:

The municipal authorities are given limited powers to enact laws for their governance. It is
called Municipal legislation. It also called bye-laws. The power is conferred by Supreme legislation. For
example, Quetta Municipal Corporation, etc.

(2) Executive legislation:

These powers are expressly delegated to the executive by the Parliament. Executive consists of
President, Prime Minister, Governor, and govt. officers, who are interested, with the working
administrative department of the State. Parliament simply delegates its functions to the executive to
make their own laws. E.g. Defense of Pakistan. President can make a rule for himself to regulate his
office.
(3) Colonial legislation:
It is the outcome of colony or colonies by way of settlement. The colonies of British Empire were
delegated with certain legislative authority for their own government. Such legislation is called colonial
legislation. For example, laws passed by the Indian legislature before independence.
(4) Autonomous legislation:
Sometimes the state allows private persons like universities, Railway companies, etc. to make bye-
laws which are recognized and enforced by law courts. Such legislation is usually called
autonomic. Railway Company may make bye-laws for the regulation of its undertaking. Likewise, a
University may take students for the Government of its members.
(5) Judicial legislation:

Judiciary is given powers to make certain rules to regulate the procedure. Such act of court during
judicial proceeding is called judicial legislation. Balochistan High Court Rules, which are rules governing
Balochistan High Court and matter coming before this Court.

Prepared By: Kamran Zaib 2|P a g e

PRECEDENT

Precedent is meant by anything said or done which is quoted and cited as authority for subsequent
conduct. Precedent is created by judicial decision pronounced by courts which may be given either by a
superior or a subordinate Court. A judicial decision is a precedent when is creates a new rule; otherwise
it is a judgment as between the parties.

Nature of Precedent:

A precedent is purely constitutive and in no degree abrogation. This means that a judicial decision can
make a law but cannot alter it. Where there is a settled rule of law, it is the duty of the judges to follow
the same. They cannot substitute their opinions for the established rule of law.

Precedent occupies in important position on English Law. Much of the English law has been created by
the Judges. It is only in the British legal system that precedent is recognized as of binding authority if
before the time of James. Precedents were cited merely indicating true law.

Binding force of Precedent:

Precedent has binding force because:-

 Administration of Justice has been concentrated in the hands of judges.

 The judges as a body of legal experts can properly law down the law for the bar.

 When a case is decided, it is presumed that the decision is correct. A point once decided between
the parties become a re judicta and cannot again be litigated upon, even if a decision be
incorrect.

 The rule that the law as previously laid down must be followed induces confidence in the minds
of the litigants.

 Administration of justice becomes even handed and fair for a rule already laid down is followed
in all subsequent cases.

Classification of Precedent:

Precedents may be classified into three divisions; (i) according to the nature of the rule laid down, (ii)
according to the influence exercised by them on the course of future decisions, and (iii) according to the
nature of the authority. Those under (i) may be described as declaratory and original precedents, those
under (ii) as authoritative and persuasive precedents, and those under (iii) as precedents of absolute
authority and of condition authority. A seriatim description of these forms is given below;

A. Declaratory and Original Precedents -

I. Declaratory precedents:

Declaratory precedents are those which do not lay down a new rule of law but only declare a principle
of law already existing. When the law is already sufficiently well evidence, as when it is embodied in a
statute or set forth with fullness and clearness is some comparatively modern case, the reporting of

Prepared By: Kamran Zaib 3|P a g e

declaratory decisions is merely a needless addition to the great bulk of our case law. Such precedents
merely declare the law.

II. Original Precedents:

Original precedents are those which lay down a new rule of law. These are the outcome of the internal
exercise by the courts of their privilege of developing the law while sitting to administer it. Such
precedents make the law.

B. Authoritative and persuasive precedents -

I. Authoritative precedents:

Authoritative precedents are those which must be followed whether the Judge deems the principle laid
down as correct or not. Thus, the decisions of the High Court are authoritative precedents for the
subordinate Courts and the decisions of the Supreme Court are authoritative precedents for the High
Courts and all other subordinate Courts.

II. Persuasive precedents:

Persuasive precedents are those which the Courts may or may not follow. Thus, judgments of Indian
high courts and the Supreme Court of India or of other Foreign Courts are merely persuasive precedents
for the Courts in Pakistan.

C. Precedent of absolute authority and of conditional authority -

I. Precedents of absolute authority:

Precedents of absolute authority are those which are absolutely binding, however, unreasonable or
erroneous they may appear to be. In this sense also the precedents of superior Courts are precedents of
absolute authority for the inferior or subordinate courts. Similarly, a decision of the Full Bench is binding
on a Bench consisting of two or more judges of the same and subordinate courts.

II. Precedents of conditional authority:

Precedents of conditional authority are those which are binding but not absolutely. Thus, a decision of a
single judge of the High Court is only a conditional authoritative precedent for a Judge of the same or
another High Court.

Merits of Precedent:

1) It shows respect for the opinion of one’s ancestors. Jurists have supported the doctrine on this
ground as they say there must be some reasons behind the opinions. We may not understand
that but must look into.

2) Precedents are based on customs, therefore, they should be followed. In following precedents,
we follow customs which have been a general practice of a long time not only the opinion of a
judge.

Prepared By: Kamran Zaib 4|P a g e

 3) As a matter of convenience, it is necessary that a question once decided should be settled and
not be subject of re-argument in every case if ever arise in future. This way it will be time and
energy saving for courts.

4) A good law should always be certain. A precedent brings certainty in law by its binding force. If
courts do not follow precedent and the judges start deciding issues every time afresh law would
become most uncertain.

5) Precedents brings flexibility in law. Judges in giving their decisions are influenced by society and
prevailing conditions. They mold the law according to the changed conditions.

6) Precedents guide judges and consequently, they are prevented by committing errors. By
deciding cases on the basis of precedents it takes a shape of principle and strengthens the
judiciary.

7) As a matter of policy, decisions once made based on principles should not be departed from in
the ordinary course.

De-Merits of Precedent:

1) Precedents are published in law reports which are in a large number and its time consuming to
search particular case from voluminous legal literature.

2) Sometimes courts express a conflicting opinion on the same issue, their validity of precedent
becomes doubtful and any decision based upon that may be erroneous.

3) The law based on case laws is incomplete because judges focus and consider only the facts of a
particular case. Thus it is never complete and comprehensive.

4) It overlooks the fundamental rule of natural justice that law must be known before it is actually
enforced.

5) One of the greatest set back is that development of law through case laws more or less depends
on chance. Sometimes important points mat remain un-adjudicated.

6) If a decision of superior court is wrong and defective and subordinate court is bound to follow
that this way it creates problem for subordinate court judges.

Prepared By: Kamran Zaib 5|P a g e