§ 51 Supreme and Subordinate Legislation
Legislation is either supreme or subordinate. The former is that which proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled, or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme authority. The legislation of the Imperial Parliament is supreme, for “what the parliament doth, no authority upon earth can undo.”114 All other forms of legislative activity recognised by the law of England are subordinate. They may be regarded as having their origin in a delegation of the power of Parliament to inferior authorities, which in the exercise of their delegated functions remain subject to the control of the sovereign legislature.
The chief forms of subordinate legislation are five in number.
(1) Colonial.—The powers of self-government entrusted to the colonies and other dependencies of the Crown are subject to the control of the Imperial legislature. The Parliament at Westminster may repeal, alter, or supersede any colonial enactment, and such enactments constitute, accordingly, the first and most important species of subordinate legislation.
(2) Executive.—The essential function of the executive is to conduct the administrative departments of the state, but it combines with this certain subordinate legislative powers which have been expressly delegated to it by Parliament, or pertain to it by the common law. A statute, for example, occasionally entrusts to some department of the executive government the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the same matter. So it is part of the prerogative of the Crown at common law to make laws for the government of territories acquired by conquest, and not yet possessed of representative local legislatures.
(3) Judicial.—In the same way, certain delegated legislative powers are possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. This is judicial legislation in the true sense of the term, differing in this respect from the so-called legislative action of the courts in creating new law by way of precedent.
(4) Municipal.—Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the districts under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal.
(5) Autonomous.—All the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or in one or other of its many subordinate departments. But this is not necessarily the case, for legislation is not a function that is essentially limited to the state. The declaration of new principles amounts to legislation not because it is the voice of the state, but because it is accepted by the state as a sufficient legal ground for giving effect to those new principles in its courts of justice. The will of the state is, indeed, as we have already seen, the one and only formal source of law; but it does not follow from this that the word of the state is the sole form of that material source of the law which is called legislation. In the allowance of new law the state may hearken to other voices than its own. In general, indeed, the power of legislation is far too important to be committed to any person or body of persons save the incorporate community itself. The great bulk of enacted law is promulgated by the state in its own person. But in exceptional cases it has been found possible and expedient to entrust this power to private hands. The law gives to certain groups of private individuals limited legislative authority touching matters which concern themselves. A railway company, for example, is able to make by-laws for the regulation of its undertaking. A university may make statutes binding upon its members. A registered company may alter those articles of association by which its constitution and management are determined. Legislation thus effected by private persons, and the law so created, may be distinguished as autonomic.
There is a close resemblance between autonomic law and conventional law, but there is also a real distinction between them. The creation of each is a function entrusted by the state to private persons. But conventional law is the product of agreement, and therefore is law for none except those who have consented to its creation. Autonomic law, on the contrary, is the product of a true form of legislation, and is imposed by superior authority in invitos. The act of a general meeting of shareholders in altering the articles of association is an act of autonomous legislation, because the majority has the power of imposing its will in this respect upon a dissentient minority. All the shareholders may in fact agree, but the law-creating efficacy of their resolution is independent of any such accidental unanimity. We may say, if we please, that with respect to consenting shareholders the resolution is an agreement, while with respect to dissentients it is an act of legislative authority. The original articles of association, on the other hand, as they stand when the company is first formed, constitute a body of conventional, not autonomic law. They are law for all shareholders by virtue of their own agreement to become members of the company, and are not the outcome of any subsequent exercise of legislative authority vested in the majority.115