Limits of legislation as a source of law: an historical and comparative analysis

Abstract

We are habituated to an hyperactive legislature and the proliferation of legislation. The legislature hurtles along, causing Anglo-American legal systems to degenerate into massive, and often meaningless, contradictory or trivial blocks of rules and norms, and ones which are beyond the ordinary citizen or corporation to know and fully to meet. Legislation’s demands are ever-increasing: it grows in volume, in ambition, and it seems to recognise no end to its capacity and entitlement to regulate the most detailed, most banal or most technical of affairs. It has lost any means by which to prioritise those matters with which it ought concern itself. The situation has been brought about by conflating an authority which Parliament acquired in the 17th and 18th Centuries with the legislation it produces. I seek to separate the two and show that there is no justification for attributing to legislation such legitimacy and authority as Parliament as an institution acquired historically. But because legislation-making has been based upon this assumption, there is a loss when Parliament legislates hyperactively because there exist normative reasons why Parliament should perhaps not act in such an unrestrained manner, but ones which, partly owing to the underlying assumptions about the authority of legislation, remain unaddressed. For so long as those who would claim for Parliament an entitlement ambitiously to legislate and without restraint fail to confront these considerations, there remains a normative loss when Parliament legislates in the manner they would advocate. I seek to diagnose a presently less than fully justified conferral upon legislation of authority and an accompanying incompleteness in the arguments of those who would seek to justify an activist and ambitious role for Parliament via legislation. This is not to say that there is no justification for Parliament’s current disposition, but that the foundation upon which Parliament’s hyperactivity in legislation has been built is attended with a failure of those who advance such a position to confront and to meet arguments which run counter to that claim.