Module I

Principles of Legislation

Navditya Tanwar
 Theoretical Foundation

The first of the codes of Law of Mesopotamia that is known

were the Laws of Eshnuna in 60 clauses about 1080 BC. But
most famous of them were Laws of Hammurabi (1752 BC),
the first written laws, in history of legislation.
It dealt with administration of justice in relation to land ,
against property, marriage and offences etc.
Beside this there were other laws such as Law of the
Hittites, 15th century BC, the Laws of Hebrews.
Early laws included, the Greek legislation by Draco, 621 BC
which envisaged cruel punishment even for minor crimes
also known as ‘draconian’ laws in Europe; Twelve Tables of
Rome, 450BC dealing with patria protestas, monogamic
marriage and law of contract, derelicts.
Thereafter laws such as Valerio-Horatian, 448BC, regulating
public life followed by development of laws by Utphian and
Justinian which marks development of Roman legislations. It
includes the Code of Theodosius, the great legislation of
Justinian with Codex Justinianus.
Common law, after fall of Roman Empire came Legas
Barbaorum, customary laws which became the foundation of
common laws in England.
Medieval times marked the dominance of Church in Europe.
The rules were formulated by Council of Christianity known
as Council of Trent (1545-60). The decree passes by Pope on
code made by Gratian in 1140 known as the Corpus Juris.
This led to revolution known as Renaissance and marked the
onset of monarchial absolutism by 16th century.
In England, by 18th century, laws were made by Henry
VIII against the church
By 17th and 18th century, there is no legislation as such
regulating social and economic life of the people..
It was in 19th century that we find laws dealing with socio-
economic condition of people in England.
It was influence of Bentham and his utilitarian school that
led to legislation to reform law by 1832 through law Reform
Act in England.
Subsequent legislation such as Workmen’s Dwelling Act.
Workmen’s Compensation Act and Trade Unions Act came
into being.
The flow of legislation which began in 19th century became
a flood in 20th century.
 Principles of Legislation

Principles refer to foundation or beginning to any thing. By 18th

century many thinkers began to formulated principles of
legislation which were to govern men.
Richard Hooker (1554-1600)
 Wrote laws of Ecclesiastical Polity. Based on law of nature and
reason of human life.
Francis Bacon (1561-1626)
 Believed that legislation which address the security of people is
supreme law and did not believe in independence of judiciary.
John Locke (1632-1704)
 His “Two essays on Civil Government” paved the way for political
thought in England. He believed that any legislation to qualify
mark of good legislation must address liberty and property of
people.
 In fact he was the founder of modern legislative principles which
envisaged that law must be to do public good.
Montesquieu (1689-1755)
 His work “Spirit of Laws” published in 1748propagated doctrine of
Separation which paved the way for greater efficiency of
legislations.
 He emphasised that legislation should comply with spirit of the
people and its traditions including physical surroundings.
Leibnitz (1646-1717)
 He believed that law should stand the test of science and current
knowledge.
Beccaria (1739-1794)
 His work Delict and Crimes opposed severe punishment, torture
and death penalty. Voltaire supported his theory which led to
change in criminal law in Europe.
 Edmund Burk (1727-1797)
 Greatest parliamentarian and political thinker who propounded
the principle of equality before law.
 Rationality should be basis of national law and must conform to
rule of justice. he stated that bad laws are worst tyranny.
Blackstone
 His work on “Commentaries on the laws of England” in 1765
expressed his idea on legislation.
Plato, Aristotle & Thomas Acquinas
 Plato in his book “Laws” expressed the opinion on good and useful
legislation – humane & divine.
 Aristotle in his book “Politics” he believed that legislators must
prefer good to useful in legislation.
 Thomas Acquinas believed that common good should be the
motivation behind any legislation.
 Jeremy Bentham published his celebrated work, “ Introduction
to the principles of Morals and Legislation” in 1787 where he
postulates utilitarianism as principle of legislation i.e. supreme
objective of moral action is the achievement of the greatest
happiness for the greatest number. Interest of community is sum
of interests of individuals who compose it.
 He believed that the sole objective of any legislation should be
public good and the identification of public good should is the
science of legislation.
 He believed all human beings are subject to two ideas – pleasure
and pain. Therefore every legislation must be beneficial, should
be good and should give pleasure. So he propagated “greatest
happiness of greatest number” which he took from Priestly’s
Essay on Government . His analysis of pleasure and pain was
influenced by Beccaria
In his work, “An Introduction To The Principles And
Morals Of Legislation”, Chapter XVII Of the Limits if the
Penal Branch of Jurisprudence (2000), Jeremy Bentham
begins with elaborating the meaning of the term ‘offense’ as
an act prohibited or contrary to law.
He discusses methods of dealing with an act by creating a
distinction between civil law and criminal law, which
according to him it is the whole subject of art of legislation.
He then says, ‘to ascertain what is law and its relation with
procedure and rest of law at large it is essential to first
assess the limits between the civil and penal branch of law.
Before drafting law a legislator must enquire into ethics at
large for the production of greatest quantity of happiness.

He further elaborates that every act which promises to be

beneficial upon the whole to the community (himself
included) each individual ought to perform of himself:
But it is not every such act that the legislator ought to
compel him to perform. Every act which promises to be
pernicious upon the whole to the community, each
individual ought to abstain from of him: but it is not every
such act that the legislator ought to compel him to abstain
from.
If legislation interferes in a direct manner, it must be by
punishment to point out the limits between the two arts or
branches of science. These cases it may be remembered, are
of four sorts: 1. Where punishment would be groundless. 2.
Where it would be inefficacious. 3. Where it would be
unprofitable. 4. Where it would be needless.
The art of legislation (which may be considered as one
branch of the science of jurisprudence) teaches how a
multitude of men, composing a community, may be
disposed to pursue that course which upon the whole is the
most conducive to the happiness of the whole community,
by means of motives to be applied by the legislator
 Savigny and Jhering (1818-1892)
 Both were Germans and under influence of Bentham. They are
believed to be propagator of modern legislative principles based
on reason and utility.
 Savigny said, “ law is not the independent trait of legislature,
single or multiple but the organic product of the national life; it
is the spontaneous and unconscious expression of the juristic
instincts of the people.
 Jhering – “Laws is a means to an end”
Revelation or faith as superior to reasons and subordination of
man’s interests to spiritual authority. This was distinctive trait of
medivial times-old testament, vedas, sruties, quran. Believed laws
of divine origin.
Reasons -19th century paved way for ideas equality, liberty and
fratenity. Doctrine of natural justice founded on principles of
justice, equity and good consicious.
Utility –under the influence of this doctrine the criminal and civil
laws in England were reformed. The idea that legislature must
promote happiness of masses.
C.K.Allen said, “ the spirit which dominates doctrine is observable
in the trend of legislation. At least in democratic countries it is
not a process solely of command and obedience, but of the action
and reaction between constitutionally authorised initiative on the
one hand and social forces on the other.”
 Power- influence of individualism.
 Niectzsche philosophy influenced legislation in Italy and
Germany, a sense of racial superiority . Colonial legislation was an
out product.
 Concept of individualism was propagated by Stoics- importance of
human mind and spirit.
 John Stuart Mill in 19th century transformed it to economic
individualism- freedom to carry trade.
 By mid of 19th century – Charles Darwin’s theory of evolution
paved way for Laissez faire. Herbert Spencer -state must refrain
from interfering in socio –economic activities.
 Puritanism- putting individuals conscience in first place.
 Henry Maine’s –” the movement of the progressive societies has
hitherto been a movement from ‘status to Contract’”
 T.H. Marshall – civil rights-18th century, political rights -19th
century ans social rights- 20th century
 Blackstone- in his ‘Commentaries on the Laws in England’ –
primary role of la is to protect rights of individuals-right of
liberty, security and property
Green – far more oppressive power exerted by legislature is
when it abridges the power to contract.
Class domination –influence of Marxism- Russia , China
Yugoslavia. Karl Marx famous Manifesto of Communist Party-
basic structure –economic; superstructure –political, religious,
legal
 Social Justice/ Welfare – socialism as a principle of legislation
Virtue- propagates relation between law and morality- dowry
prohibition