{"id":37818,"date":"2014-01-15T16:48:50","date_gmt":"2014-01-15T16:48:50","guid":{"rendered":"http:\/\/mostafa.openonline.co.uk\/?guid=76e9a3fcf9d9948224ad078608c2e052"},"modified":"2014-01-15T16:48:50","modified_gmt":"2014-01-15T16:48:50","slug":"speech-making-the-law-easier-for-users-the-role-of-statutes","status":"publish","type":"post","link":"https:\/\/mostafa.openonline.co.uk\/?p=37818","title":{"rendered":"Speech: Making the law easier for users: the role of statutes"},"content":{"rendered":"
\n

There is an ambition, expressed variously throughout history, for all our laws to be written down, in one place, with clarity and elegance. What could be better than that?<\/p>\n

I want to explore that ideal and ask: is that still our ambition? Should it be? And if for whatever reason we decide to settle for less, for a piecemeal, uncodified law: what does that mean for the user? And what can we do, all of us, to make sense of the hybrid, piecemeal law which is our inheritance?<\/p>\n

To start, I could go immediately to Justinian, or to Napoleon \u2013 and I will mention those excellent emperors later. But because we\u2019re at the University of London, and because this is his part of town, I want to start instead with Jeremy Bentham. <\/p>\n

Bentham\u2019s passion for codification<\/h2>\n

Bentham wasn\u2019t a great fan of the common law and its judge-made tradition. Dog law, he called it: <\/p>\n

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It is the \u2026 judges \u2026. that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait till he does it, and then beat him for it.<\/p>\n

This is the way you make laws for your dog: and this is the way the judges make law for you and me. They won\u2019t tell a man beforehand what it is he should not do \u2026 they lie by till he has done something which they say he should not have done, and then they hang him for it. (Jeremy Bentham \u2018Truth versus Ashurst\u2019 1792)<\/p>\n<\/blockquote>\n

Let\u2019s look a bit more closely at what Bentham was calling for. What would Bentham\u2019s legal world look like?<\/p>\n

He wrote that he would like to see common law turned into statute. And then what applies to everyone should be put into \u201cone great book\u201d \u2013 rather engagingly he added as an aside that, \u201c(it need not be a very great one)\u201d. And law that applies only to certain categories of people should be put into, \u201cso many little books, so that every man should have what belongs to him apart, without being loaded with what does not belong to him\u201d.<\/p>\n

Reading Bentham, you are fired up by this wonderful longing for an ideal of statute law: law that gives the subject certainty, in advance, about the consequences of their actions. Bentham\u2019s view was that this kind of law was more principled than, and ought to be desired, valued and respected above, \u201cdog-law\u201d. <\/p>\n

Now, dog-law is an amusing 18th century caricature, but there is something about Bentham and his passion for codification that has fed directly into the guiding principles of modern drafters of statute law: the principles of certainty, and clarity, and making law accessible to all. It is still a rallying cry.<\/p>\n

But let\u2019s pause, and ask ourselves how far we have got, in this country, towards the Benthamite ideal? <\/p>\n

We retain, two centuries after he wrote, a vibrant source of judge-made law, sitting alongside a vast stock of statute law, to which we add, each year, perhaps half a million words. In truth, England and Wales is a hybrid jurisdiction \u2013 as, I might add, is Scotland. We still look to the judges to develop some or all of the rules of contract, and tort, and remedies, and legal personality, and what it means to hold property on trust, and public law, and much more. Then there are some areas of law which are almost entirely statutory. <\/p>\n

Replacing common law<\/h2>\n

And for the most part, we have areas of law where statute sits on top of or alongside common law. Drafters and legally trained readers are used to the mental to and fro this requires. Take the Defamation Act 2013, for example. Section 1 says,
\n\u201cA statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.\u201d (Defamation Act 2013 s.1(1))<\/p>\n

In order to understand that, you have to know what it means for a statement to be defamatory, and the significance of that.
\nSo while the zeal to simplify remains inspiring, the truth is that the idea of replacing the entire common law with a statutory code \u2013 and implicitly with a different judicial tradition \u2013 has not been taken up. We have neither replaced the common law altogether; nor, where we have replaced it, have we removed the judges\u2019 responsibility for interpreting statutes and, where necessary, for developing the law.<\/p>\n

So, why did this mission fail? Was Bentham right to put statute law on a pedestal? Can we do without dog-law and should we be trying to? <\/p>\n

(At this point, the room was asked whether they favoured replacing the common law of contract and tort with a statutory code. The overwhelming majority of the room were against.)<\/p>\n

You can look at the question of statutory constitution in a vacuum \u2013 in an imaginary country with a blank constitution. But I will try to answer it from where we all stand in our democracy, with our mixture of case law and statutes.
\nIs Bentham\u2019s ideal realisable? Not in this country, I think. I will give you three reasons.
\nThe first is simply that it takes a very large amount of time and effort.<\/p>\n

Exercises in codification<\/h2>\n

Exercises in codification, or even simply consolidation or restatement, have tended to take years and years. The Law Commission commissioned a Contract Code; work carried on from 1966 to 1972 but the fruits of that labour were only published in 1993 \u2013 and then in Italy. (Harvey McGregor \u2018Contract Code drawn up on behalf of the English Law Commission\u2019 Milan \u2013 Giuffre Editore 1993)<\/p>\n

Or take the Tax Law Rewrite Project. Its remit was to restate tax law so it fell short of a codification but still was similar enough to be a useful illustration of the scale that a codification project can assume. It ran from 1996 to 2007, involved tax officials and drafters and consultative committees, at a cost of a few million pounds a year. It certainly re-wrote some parts of the tax code and it was a brilliant test-bed for innovative drafting techniques. But codifying is long, hard work.<\/p>\n

That takes me on to the second reason: democracy. Codification requires someone to step into the judges\u2019 shoes as lawmaker \u2013 on a very large scale. That person, in our system, would of course be Parliament. So how would Parliament go about this task? What would it need to do the job? None of us, I think, would much like the idea of Parliament being asked to rubber-stamp a comprehensive new law of the land. So we would want the lawmaker to play an active part; and surely the public too; but is that realistic, and how would progress be made?<\/p>\n

And note that we would be asking lawmakers to bring great and conscientious scrutiny to a project which would essentially be restating rather than changing the law. For the most part, that\u2019s not how lawmakers would see their role: Parliamentarians, whether on the government front bench or elsewhere, are generally in politics to reform the law, not to restate it.<\/p>\n

So, what if the Benthamite project sets out not just to restate the law, but to improve it? To change it at the margins, or to adjust some of the balances that it strikes between competing interests? In our pluralist democracy, there\u2019s no area of law that would not be contested vigorously. It is easy to imagine the scale of the Parliamentary attention required to enact a Benthamite code. And if that time and attention were not forthcoming \u2013 if Parliamentary engagement could somehow be avoided \u2013 well, we should all be a bit worried for our democracy.<\/p>\n

Remember, the best examples of a comprehensive code getting off the ground tend not to be in democracies. Take the code of Roman law. It was produced by Tribonian, an official under the Emperor Justinian. He codified three centuries of imperial judgements, reducing the volume of the law by 95%. And its descendant was of course the Napoleonic Code \u2013 another grand project enjoying imperial patronage and unencumbered by a lively democracy.<\/p>\n

We have touched on resources and democracy. And so I come to the third reason why I suspect Benthamite codification is not realisable here. In the areas left to the common and uncodified law, we are probably quite well served by the tradition of judicial precedent as it has evolved. And if we were to codify, we would be losing a subtle ability for the law to adapt to changing circumstances. <\/p>\n

Because a codifier approaching an area of common law, with perhaps a century of accumulated case-law, has a number of options:<\/p>\n