LEGISLATION

In all legislation, as in litigation, there is a struggle between the

issue and the process. The layman wants to simplify the law, the lawyer

wants to simplify the facts. Anyone who reads the French code will

think French Law simple; if he hears a French lawsuit he will find that

the code has always to be interpreted in the light of past litigation,

though French decisions are not authoritative in the same sense as ours.

The House of Commons in considering a bill is often quite as ignorant

of the subject matter with which it deals as of the legal antecedents

of the Bill. The ordinary citizen may sometimes sit on a jury; but he

does not administer the law in rotation as the Athenian did in the days

of Pericles. Therefore legislation is often retarded and complicated by

appeals to ignorant prejudice as well as by considerations of partisan

expediency and illogical compromise. The experts rarely have the

same chance as they had in drafting the Partnership Act, 1890, which

summarized and boiled down a multitude of decisions.

Even if Parliament cannot be trusted to legislate very coherently,

there ought to be a department of State (_e.g._, a Ministry of Justice)

engaged in perpetually clarifying the case law and different statutes

of, say, the last preceding twenty-five years in order to introduce

some coherence and simplicity into our Statutes. This, however, will

not easily be accomplished unless the practice of allowing bureaucrats

to draft their own rules and sit in their own courts as judges in their

own cause be abolished.

Many complaints have been made against the Common Law of England owing

to the labour of digging up old cases and reconciling them with the

particular subject matter to which they are to be applied; but the

legal tangles of our time are worse than the old and are mainly due to

the difficulty of interpreting statutes which are obscurely drafted and

ambiguously worded.

If these statutes often puzzle the judges who have to administer

them it is not fair to the layman to say to him:――“_Ignorantia legis

neminem excusat._” It may, therefore, be fairly presumed that future

Parliaments will employ the most expert draftsmen they can find to

eliminate all the defects that now import chaos, and therefore hardship

and expense, into the community.

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