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 supply ing whatever rules were found to be necessary for the regulation of the common affairs of the com nn city. 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 com munities this power became vested ill a special class of learned persons, as. for example, tile Druids in Britain and the Brehons in Ireland. The disinclination to innovate upon the cnston ary law, however, and the comlnparativeN few legislative needs of a primitive society ]]lade the enactment of new law- a rare occurrence. It is doubtful if the great ancient codes contained munch new law, for it would have been a rash act for a lawgiver to presuune to innovate upon the imnnennorial customs of the race. But with the growth of a snore highly developed society and the advance of civilization new sources of law' made their appearance. Legislation. saws Sir Henry Maine, is one of the three agencies by which law' is brought into harnnony 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 un der 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 counnonly ennployed in the spe cial sense of the enactment or alnnendmllent of law by the direct action of the sovereign, or of a special organ of the State to which the legisla tive 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 so ciety, legislative and judicial functions not be ing distinguished in the earlier stages of legal development.
Legislation played an important ride in the legal development of the Greek republics of an tiquity, especially in the popular asscmblies of Athens and Sparta, hut it attained its highest development in the repuhIjean era of lb one. IIere its chief organs were the connitia, or popu lar assembly of free citizens, and the Senate, whose decrees (scnatus consul(o) 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. reseripts, and mandates) had the force of law without further sanction. The responses of the jurists (rcsponsa
prudentuui), to whom the actual deei ion of doubtful cases was referred- likewise derived their authority from their confirmation by the Emperor.
During the medheval period legislation throughout Europe was a function of the prince, sometimes assisted by a council, but never con trolled by it. Toward the close of the \fiddle Ages, however, the rise of Parliament in Eng land led to the withdrawal of a considerable part of the legislative 'power hitherto exorcised by the King, and its assuniption by Parliament. (Sec LEGISLATURE.) Elsewhere this power was re tamed by the princes until the nineteenth cen tury, during the course of which period represen tative legislative bodies were provided in all those countries which established constitutional systems of government. According to the mod ern 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 fu win mental legislation, and is embodied in the vari ous 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. cou stitutional conventions; and, secondly. it takes precedence in authority over the body of law which emanates from the legislatures. ']'here is still a third form of la v-making commonly known as direct legislation, which results from flue 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 ii meet iv 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 mite generally in Switzerland. both in the Federal and eantonal governments. as well as in many of the American States. Recently constitu tional amendments have heel] submitted in sev eral States of the Union for the establishnnent of a system of popular initiative in legislation, sueh as exists in Switzerland. There are un douhtedlv signs of a growing tendency in the United States to accord a more general recogni tion to this method of legislation as a means of avoiding certain evils of the representative system.