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.