LEGISLATION. The term °legislation" in its most restricted sense has reference to the enactments of a legislative body (see LEGISLATURE). In a larger sense, legislation embraces the totality of general rules of law binding upon the community, whether they emanate from a legislative body, from the people acting by way of the referendum, from a constituent assembly (in the United States a °constitutional convention"), the chief of state (president, king or emperor), or a subsidiary law-making body, such as a municipal or county council. In a special sense it may also be applied to the body of so-called judge-made law built up by the courts as a result of their power to interpret the meaning of the constitu tion and laws. Legislation through the agency of bodies of specially chosen representatives is of modern origin. (See LEGISLATURE). Among the ancients custom was the chief source of law, and in Rome positive written law had to conform to custom in order to be valid. This theory of the supremacy of customary law over written law persisted throughout most of the mediaeval period. (See LAW). After the close of the Middle Ages, however, legislation was exalted above custom, the idea that legisla tion proceeded from the state took root and it was denied by the jurists that customary law might override the prescriptions of positive law. • In the United States the great body of legis lation consists of the enactments of Congresi, the State legislatures and the various sub sidiary law-making bodies, particularly the municipal councils. The constitutions also con tain a large body of legislation, and not all of this is organic or fundamental in character, for in recent i years there has been a marked tend ency to insert in them many rules of private law and even rules of parliamentary pro cedure. (See CONSTITUTION). Formerly much of this legislation was embodied in the statutes, but the growing distrust of the legislatures has had the effect of transforming more and more the constitutional convention into an ordinary law-making body as well as a constituent assembly.
The evidence of this tendency is found in the great length of some of the more recent constitutions, such as those of Louisiana, Okla homa and Virginia, all of which contain a mul titude of provisions which logically should be reserved to the statutes. The body of legisla tion found in the constitutions and the statutes is supplemented by a mass of judge-made law consisting of the interpretative decisions of the courts. Not strictly legislation in form, it is
such in effect, and a study of the text of a con stitution or statute apart from the constructions which have been read into it by the jud,iciary often gives an imperfect knowledge of its meaning and effect. Where there is doubt as to the meaning of the statute the cpurts not only claim the right to discover its meaning, but also to give effect to the intention of the law-maker so far as that intent can be ascer tained. °Modern courts," says, the German jurist Windschied, °may and habitually do think over again the thought which the legis lator was .trying to express," while the Roman jurists went even further and undertook aft) think out the thought which the legislator was trying to think," that is, what he would have intended had he known what future conditions would be. English and American judges, how ever, have always maintained that they do not legislate, that they do not c(tnake" the law in interpreting the meaning of doubtful statutes, but that they only °find" it, between the lines as it were. Finally, in addition to the, body of legislative enactments and judge-made law there is a mass of what is in effect, though not in form, legislation emanating 'from the execu tive as a result of the power to issue orders and regulations. Though far less in quantity and importance than the body of executive legislation in Europe, where ordinance power of the executive is much larger, it is nevertheless very considerable, and of far more importance than is generally known in this country. Thus the President of the United States, in pursuance of authority either dele gated to him by Congress or resulting from his , constitutional power to execute the laws, has issued .regulations for the government of the army and navy, the operation of the postal serv ice, the management of the public domain, the , conduct of the Indian service, the service, the customs service, the internal revenue serv ice and various other branches of the adminis trative service. Many of these regulations lay down rules of conduct not only for public officials and employees, but are binding upon private individuals as well and for violation of which they are subject to the penalties of the criminal law. See EXECUTIVE.