The New International Encyclopædia/Legislation

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LEGISLATION. The creation, alteration, or repeal of law, by the act of the sovereign. In primitive society legislation as a source of law had little or no place, custom and usage supplying whatever rules were found to be necessary for the regulation of the common affairs of the community. In such a society the deficiencies of customary law were often supplied by commands issued by the King or chief, sometimes with the assent of his warriors or nobles. In some communities this power became vested in a special class of learned persons, as, for example, the Druids in Britain and the Brehons in Ireland. The disinclination to innovate upon the customary law, however, and the comparatively few legislative needs of a primitive society made the enactment of new law a rare occurrence. It is doubtful if the great ancient codes contained much new law, for it would have been a rash act for a lawgiver to presume to innovate upon the immemorial customs of the race. But with the growth of a more highly developed society and the advance of civilization new sources of law made their appearance. Legislation, says Sir Henry Maine, is one of the three agencies by which law is brought into harmony with society, the other two being legal fiction and equity. Bentham, however, using the term in a wider sense, includes both legal fiction and equity under the head of legislation, on the ground that all three processes involve the making of new law, the difference being only one of method. The term is more commonly employed in the special sense of the enactment or amendment of law by the direct action of the sovereign, or of a special organ of the State to which the legislative power is committed. As thus employed, it excludes the process of adjudication, which is, however disguised, one of the most prolific sources of law. Indeed, the complete separation of the two processes is a device of modern society, legislative and judicial functions not being distinguished in the earlier stages of legal development.

Legislation played an important rôle in the legal development of the Greek republics of antiquity, especially in the popular assemblies of Athens and Sparta, but it attained its highest development in the republican era of Rome. Here its chief organs were the comitia, or popular assembly of free citizens, and the Senate, whose decrees (senatus consulta) have been the model of succeeding ages. During the Imperial period the legislative function gradually passed out of the hands of the Senate, into those of the Emperor, whose judgments and decrees (known variously as constitutions, decrees, rescripts, and mandates) had the force of law without further sanction. The responses of the jurists (responsa prudentum), to whom the actual decision of doubtful cases was referred, likewise derived their authority from their confirmation by the Emperor.

During the mediaeval period legislation throughout Europe was a function of the prince, sometimes assisted by a council, but never controlled by it. Toward the close of the Middle Ages, however, the rise of Parliament in England led to the withdrawal of a considerable part of the legislative power hitherto exercised by the King, and its assumption by Parliament. (See Legislature.) Elsewhere this power was retained by the princes until the nineteenth century, during the course of which period representative legislative bodies were provided in all those countries which established constitutional systems of government. According to the modern idea of the term, legislation has reference to the formal enactments of those representative bodies especially created for purposes of law-making. But besides the body of legislation emanating from the legislatures there is another important body of law peculiar to modern States which goes by the name of organic or fundamental legislation, and is embodied in the various constitutions of government. This form of legislation differs from the preceding class both as to source and status. In the first place, it emanates usually from constituent assemblies, or, as they are popularly called in America, constitutional conventions; and, secondly, it takes precedence in authority over the body of law which emanates from the legislatures. There is still a third form of law-making commonly known as direct legislation, which results from the application of the principle of the referendum (q.v.). According to this method legislative projects are initiated by the legislature or by popular petition and submitted directly to the electorate for its approval or disapproval, the validity of the statute being conditioned upon its acceptance by a majority of the voters at the polls. This method of legislation is resorted to quite generally in Switzerland, both in the Federal and cantonal governments, as well as in many of the American States. Recently constitutional amendments have been submitted in several States of the Union for the establishment of a system of popular initiative in legislation, such as exists in Switzerland. There are undoubtedly signs of a growing tendency in the United States to accord a more general recognition to this method of legislation as a means of avoiding certain evils of the representative system.

The last form of legislation to be mentioned in this connection is that enacted by municipal and quasi-municipal corporations (counties, townships, etc.). This class of legislation deals with matters chiefly of local concern, but partly of interest to the State at large, and is enacted as a result of special grant from the legislature. In Europe, as a rule, there is a more general grant of legislative power to the localities. In the municipalities (q.v.) the organ of legislation is a representative council, sometimes consisting of a single chamber, sometimes of two, the right of veto usually being given to the mayor. In the counties it is usually a small representative board of commissioners or supervisors; in the townships it is sometimes a popular assembly of the voters, sometimes a smaller body of trustees or commissioners.

Statutory legislation in the United States is from the standpoint of its territorial application classified as general, when it applies to the State as a whole, and special, when its application is restricted to a particular locality. The abuses which have arisen from the practice of special legislation have recently led to the incorporation of provisions in many State Constitutions to prohibit this form of legislation, but they have frequently been evaded by a system of municipal classification. See Municipality.

Viewed from the standpoint of time of operation, legislation may be either prospective or retroactive. Retroactive legislation unless for curative purposes is generally objectionable and is generally regarded with disfavor. Such legislation when applied to criminal matters, or when it is intended to impair the obligations of contracts, is forbidden by the Constitution of the United States. Looked at from its content legislation may be either substantive or remedial. Legislation of the former character creates and defines individual rights; of the latter, provides remedies and affords protection.

The methods and processes of legislation roughly fall into two general classes: (1) the cabinet method, and (2) the congressional or committee method. According to the first method, which prevails everywhere in Europe, except in Switzerland and Germany, and even to a limited extent in Germany, the great mass of legislation is formulated and initiated by responsible ministers who have seats in the Legislature and may at the same time be members of that body. Whether members or not, the ministers take part in the debates advocating the adoption of the public measures which they wish to have enacted into law, defending them from the attacks of the opposition and finally resigning when defeated upon any important measure. (See Cabinet.) According to the second method there is no ministry to formulate and expedite the passage of bills, but each individual member introduces such public or private bills as he chooses and relies upon the aid of his colleagues to secure their passage. This is the method in vogue in the Congress of the United States, and in the legislatures of the several States. (See United States, section on Government.) Here the chief agencies for expediting legislation are the committees, which play only a subordinate part in the European systems. Apart from this divergence in the method of initiating and expediting the enactment of public measures, there is a substantial consensus among the leading nations of the world as to the general principles of legislative organization and procedure. (See Legislature.) The constitutions of many States prescribe detailed rules in regard to the form in which projects of legislation shall be cast, their reference to committees, the number of readings through which they shall pass, the keeping of a journal, the recording of the ayes and nays in certain cases, reconsideration of the executive veto, and sometimes such matters as amendments, divisions, discipline, and petitions.

Consult: Amos, The Science of Politics (New York, 1883); Holland, The Elements of Jurisprudence (Oxford, 1882); Maine, Early Law and Custom (London, 1883); Burgess, Political Science and Constitutional Law (Boston, 1896); and Lowell, Governments and Parties in Continental Europe (2 vols., Boston, 1896).