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Report No. 60

1.7. Legislation as principal means of growth.-

Pound has called attention to the fact that legislation is the principal characteristic and means of growth in mature legal systems1. As has been observed2 National development, as we understand it in the world today, involves a vast amount of governmental planning "and programming, not only to expedite the process of development, but to direct their course along desired lines. A great volume of legislative enactments is required to validate plans and programmes and the actions necessary for their implementation. For these reasons, enacted or statutory law has acquired predominant importance in modern developing nations."

"Taken by itself, statutory law, that is, law consciously and purposely adopted to meet social needs as they arise, is certainly a higher stage of legal development than customary law Not a few of us may look forward to a time when with us, as with most other Western Nations, practically all law shall be statutory3."

The importance of increase in the tempo of legislative activity was stressed, in the United States, by the late Justice Felix Frankfurter. He pointed out that the proportion of cases coming before the United States Supreme Court which did not involve statutory issues, had fallen from 40 per cent. in 1875 to 5 per cent. in 1925, and almost to zero in 19474.

1. Pound Sources and Forms of Law, (1946) 22 Notre Dame Lawyer 1, cited in Sands Statutory Construction and National Development, (1969) 18 ICLQ 206.

2. Sands Statutory Construction & National Development, (1969) 18 ICLQ 206, 210.

3.Ernest Bruncken The Common Law and Statutes, (1920) 29 Yale LJ 516, 522.

4. Frankfurter Some Reflections on the Reading of Statutes, Sixth Annual Benjamin N. Cardozo Lecture delivered before the Association of the Bar of the City of New York, March 18, 1947; (1947) 2 Record of the Association of the Dar of the City.of New York, No. 6 (1947): 47 Columbia L Rev 527; quoted by Sands Statutory Construction and National Development, (1969) 18 ICLQ 206, 210.

1.8. It should be pointed out that legislation has not been regarded always as a mere supplement to, or taking out of common law or customary law. On the contrary, an older view was that enacted law was the normal type, and customary law a mere makeshift to which men resorted, for want of enactment, to prevent a failure of justice. Roman law after Justinian was a body of enactments, and this idea is very prominent from the sixth century to the rise of the school at Bologna in the twelfth century.1

The Roman Jurist Gaius2 classified statutes as one form of "law", and Justinian's Corpus Juris was, as legislation of the Emperor, regarded as binding statute law for centuries on the continent. For some time, even a view prevailed that the rules of the common law had their origin in forgotten statutes.3 It was the rise and development of vigorous body of judge-made law in the King's courts, and the paucity of legislation from the time of Henry the 2nd until Henry the 8th, which rendered legislation unimportant in the growing period of the English legal system.4

1. Pound Common Law and Legislation, (1907-1908) 21 Harvard Law Review 383, 388.

2. Gaius I. 2.

3. Janka Law and Politics in the Middle Ages, p. 1.

4. See Pound Common Law and Legislation, (1907-1908) 21 Harvard Law Review 383, 389.



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