The Meaning of Legislation: A Simplified Study Notes

Hello legal luminaries, today we will look at Legislation, a topic you may encounter in your final year as an undergraduate, while this class notes is only meant as a supplementary guide, it is important you know that it has been simplified as well for quick assimilation. Let’s go!

What Legislation Is

Legislation is the formal declaration of new legal rules by a competent authority recognized by courts as having that power. The core element is that a recognized authority must formally declare the rule. However, the term gets used in different ways. Sometimes “legislation” refers only to formal statutes passed by parliament. Other times it’s used more broadly to include judge-made law (precedent), though this isn’t the strict definition. Interestingly, judges do make law in the strict sense when they create civil procedure rules for their courts, so the line isn’t always clear-cut.

Principles That Limit Legislation

Even though parliament theoretically has supreme authority, three practical limits exist. A statute cannot decree what’s physically impossible, there should be no retroactive legislation, and no statute can make itself absolutely secure against repeal. These aren’t legal bars so much as logical impossibilities and principles of fair governance.

Why Legislation Matters More Than Judge-Made Law

The material argues that legislation has several advantages over relying solely on precedent. First, legislation can abolish existing law, whereas precedent can only create new law and operates essentially irreversibly. This abrogative power means legislation is essential for legal reform—you can’t undo bad precedent easily, but you can repeal a bad statute.

Second, legislation allows division of labor: the legislature makes laws while courts interpret and apply them, which increases efficiency. With precedent, the same judges make and enforce the law, mixing two functions that work better when separate.

Third, legislation must be formally declared before courts apply it, satisfying natural justice that laws be known before enforcement, while case law operates retrospectively. When a court creates law through a decision, it applies that newly-created law to facts that existed before the law did—which feels unfair.

Fourth, legislation can anticipate future cases, but precedent must wait for actual cases to arise. This means statutes can be comprehensive while case law remains incomplete and reactive.

Finally, statute law is brief, clear, and accessible, while case law is difficult to find and buried in volumes of reports. However, this clarity has a cost: statute law is rigid, whereas case law remains flexible because it stays connected to the reasoning and justice of concrete situations.

The Language Problem in Legislation

Legislation speaks in general terms about classes of persons, behaviors, and situations, which creates a dilemma: the rule must be general enough to cover foreseeable cases but specific enough to be clear. The legislative drafter faces three main sources of confusion: ambiguity (where a single word has multiple meanings), vagueness (where borderline cases exist with no clear answer), and generality (where rules apply broadly).

How Courts Interpret Statutes

Interpretation evolved significantly over time. Originally judges participated in formulation of legislation, but after the separation of powers doctrine developed by the late 17th century, judges focused on interpreting existing statutory language.

The traditional approach used three canons of construction:

The Literal Rule (Ordinary Meaning Approach): The court should give statutory language its plain meaning without reference to outside sources, minimizing judicial intrusion into the legislature’s work. This approach emerged with parliament as the supreme lawmaking body. However, courts have increasingly rejected pure literalism. American courts criticized the literal approach because language isn’t fixed—as Justice Holmes noted, words are “the skin of a living thought” that change with circumstances and time. Modern lawyers recognize that words must be understood in context.

The Golden Rule (Avoiding Absurdity): Where literal meaning would lead to absurdity or inconsistency, courts may adopt a secondary meaning that avoids the problem. This assumes the legislature wouldn’t want absurd results. Baron Parke stated that grammatical meaning should be followed unless it produces absurdity, repugnancy, or inconsistency, in which case the meaning may be modified to avoid these problems but no further.

The Mischief Rule (Purposive Approach): This approach, dating to Heydon’s Case (1574), asks what problem the statute was meant to fix. The court should interpret the statute to suppress the mischief and advance the remedy, making such construction as would achieve the legislature’s true intent. Courts determine this by examining what the common law was before, what defect it had, what remedy parliament chose, and the true reason for that remedy.

Toward a Unified Approach

The problem was that judges never knew which of these three rules to apply, leading to unpredictability. Lord Reid stated that these rules are not binding rules but aids to construction—servants, not masters—and that judges must look at all circumstances and decide what weight to give each one.

Modern interpretation has evolved toward a unified method. Lord Simon suggested that statutory language, like all language, has different “registers” appropriate to different contexts and audiences, and courts must tune into the correct register to give words their primary meaning in that context. This means ordinary meaning is now determined after reading the statute as a whole in appropriate context, with the statute’s purpose treated as part of that context.

The Judicial Role Debate

The material presents a genuine tension about what judges should do. One view, represented by Lord Denning, holds that judges must work constructively to find parliament’s intention by considering not just language but also social conditions and the mischief the statute addressed, supplementing the written word to give force and life to the legislature’s intent. Denning used the metaphor that judges should ask how the statute-makers would have straightened out wrinkles in their work—and then do the same.

The opposing view, articulated by Lord Simonds, argues that the court’s duty is to interpret the words the legislature used, not to discover parliament’s intentions or fill in gaps by guessing what the legislature would have written. To do so would be usurping legislative power. Lord Scarman stated that in statute law, judges must be obedient to parliament’s expressed will and cannot change law to match their idea of justice.

Nigerian courts have broadly followed the conservative approach. Eso JSC stated that courts administer law as it is, not as it ought to be, and that while judges may choose among multiple possible meanings, they must select one that saves rather than destroys the legislation.

Law Revision, Review, and Reform

These are three distinct processes that get confused.

Law Revision: Statutory revision organizes all laws in force at a given date, incorporating amendments and removing repealed or obsolete provisions. There are two types: topical revision (subject by subject) and bulk revision (all laws at once). Nigeria has had five successful federal revisions historically, with the most recent being the Laws of the Federation of Nigeria 2004.

A revised edition becomes the authentic version of the laws, and if it conflicts with the original enactment, the revised version prevails. However, a law revision committee is not a legislature and cannot exercise legislative power. The committee’s powers include omitting repealed provisions, consolidating related laws, correcting references, simplifying language, fixing errors, and making formal adaptations—but these are technical functions, not policymaking.

Law Review: Law review sits between revision and reform and involves keeping the entire body of law or laws on a particular subject in view with the mind of perfecting both the letter and spirit to make it efficacious and relevant to society. The reviewer identifies aspects needing amendment and recommends what should be done, whether through subordinate legislation or legislative amendment.

Law Reform: Law reform means systematic development, simplification, and modernization of the law. The mechanisms are legislation and judicial decisions. Legislation is the most important instrument of legal development because it can readily alter all other sources of law and is a useful tool for social, economic, and technological development.

Nigeria uses selective reform of specific areas rather than comprehensive system-wide reform. The Law Reform Commission has faced challenges: inadequate funding, poor infrastructure, and bureaucratic bottlenecks hamper reform efforts, and lack of executive support can stall reform proposals—for instance, a marriage bill proposed in 1980 made little progress. However, when political will existed, the Commission collaborated on significant reforms like the Companies and Allied Matters Act, now replaced by the 2020 version.

Different Approaches to Statutory Interpretation (Friedmann’s Framework)

The Pseudo-Logical Approach: This is the traditional textbook method using the three canons (literal, golden, mischief rules). It treats interpretation as a technical exercise rather than recognizing the policy choices involved.

The Social Policy Approach: This argues that statutes should be interpreted according to their social objectives. The critic’s point is valid—courts do vacillate between rules, creating confusion. However, British courts have generally been sympathetic to social reform legislation in recent times, though totalitarian systems have misused this approach to bypass legislative processes. The issue is that some statutes have no obvious social objective, and constitutional statutes have policies so general and flexible that defining them becomes complex.

The Free Intuition Approach: This school despairs of objective rules and advocates judges use creative judgment. While it arose from valid critiques of excessive literalism, it’s dangerous because it can become arbitrary. The Nazi regime used this approach to distort statutes according to “healthy instincts of the people,” showing how judicial freedom without principled limits enables tyranny.

No master solution exists for free societies, but judges should differentiate between types of statutes rather than using one uniform approach. Different categories—constitutional statutes, social reform statutes, legal reform statutes, international convention implementation, penal statutes, taxation statutes, and technical acts—warrant different interpretive approaches.

If you have comments, let us know in the comment section.