The title of this book connotes limitation, for it is obviously
impossible to attempt a prophecy about law in all parts of the world,
even though “prophecy is the most gratuitous form of error.” I shall
confine myself in the main to law in English-speaking countries, for
the countries which have adopted Roman Law――_i.e._, Scotland and most
European countries――are not likely to change it very much. English
law has largely influenced the world through English Colonies and
even through South America, where Bentham drafted more than one
constitution. Bacon drafted the constitution of Virginia, which has
been the model of the average American State. Even the present writer
has been unofficially consulted about a Federal divorce law for the
United States.
The future of law in every State depends very much on political
developments. If democracy proceeds on its present lines all law is
likely to be brought into contempt. Law is brought into contempt in
many ways but usually as follows:――
(1) Bad drafting of statutes as in the case of the Rent Restriction
Acts, the ambiguity of which necessitates incessant litigation and
conflicting decisions.
(2) Absence of principle or indolence in applying it. Thus Professor
Dicey wrote:――“English Law might be made lucid, and would be in the
main good, if we had no statutes. It is not only or perhaps mainly
that Statutes are ill-drawn ... but that English judges are incapable
of recognizing a principle when once it is put into the form of an Act
of Parliament.” The Married Women Property Act of 1882 might have been
drawn in two clauses; the result of this clumsy Statute is that more
than forty years afterwards a man is held liable for his wife’s torts,
while on the other hand the Partnership Act, 1890, remains as a model
of lucidity and saves much litigation.
(3) The abuse of legislation by faddists who try to intrude into
matters which are sacred to the individual. I need only refer to
Prohibition in the United States as an obvious example of anarchy
created by futile and hypocritical legislation.
(4) Palpable anomalies such as the Divorce Law of England and Wales
which embodies a timid compromise between common sense and theological
doctrines not seriously accepted by 50 per cent. of the community.
(5) Uncertainty and delay, which have to some extent been remedied for
well-to-do suitors but exist to-day for most poor persons.
All these tendencies exist to-day under what is called democracy. In
Canada and the United States we see movable property (_e.g._, bearer
bonds) taxed on the death of the owner not in accordance with his
domicil but in accordance with the physical situation of the property
itself. In Victoria (Australia) the test of residence is substituted
for that of domicil in divorce. There are also other anomalies
resulting in what is known as “double income tax.” The operation of the
law is also made uncertain by the Executive interfering with justice,
as appeared when the first Labour Ministry in Great Britain jockeyed
with the legal discretion of its own Attorney General.
There is also a general impatience with the complexity of human
business, which has to be put into the strait waistcoat of the law
before Justice can be achieved, and a tendency to dragoon citizens
when it is easier to employ force than to determine their rights. Such
tendencies result in Statutes like the Trades Disputes Act, 1906, and
in setting up bureaucratic bodies like the Ministry of Health as judges
in their own cause in their own courts.
There are, however, some reassuring factors to-day. State Socialism
is as dead as a doornail and other forms of Socialism are not likely
to buttress up bureaucracy. The small investor and the landowner
are waking up to the advantages of private ownership and individual
enterprise. Objectionable clauses against liberty in the Wireless
Bill and Criminal Justice Bill have been hotly opposed. There is
also a better diffusion of educational facilities and a perceptible
reaction against what Mr. Belloc calls the “Servile State.” I shall,
therefore, presume to make my forecast on the assumption that the world
is learning some kind of wisdom and will in the near future reform its
laws in accordance with common sense, even if it does not reach the
standard laid down by Dr. Johnson when he said:――“The Law is the last
result of human wisdom acting on human experience for the benefit of
the public.”
I should, perhaps, claim some indulgence from lawyers who may think
my remarks unduly sketchy or incomplete. I am working within a small
compass and writing more for the layman than for the lawyer. It is not,
therefore, easy to treat my subject very fully or comprehensively.
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