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.
II
THE LAW COURTS
I shall not deal fully with the Law Courts as such in this chapter but only with the obvious tendencies of our day towards the decentralization and specialization of justice. It is said that justice must be brought to the poor man’s door; therefore the County Courts should have divorce jurisdiction in addition to other powers. Judges should sometimes have more than a general knowledge of the subject matter which comes before them; therefore a Commercial Court was set up in 1895 and a special judge is appointed to sit in it. Some litigants, however, in commercial as well as other disputes prefer to appoint expert arbitrators who rely for legal guidance on their personal experience of law and on the eminent counsel practising before them. Supporters of this movement towards specialization quote with approval the very fair decisions of Courts Martial or the Law Society’s Discipline Committee, while pointing out the comical blunders of the Chancery division judges when they were sent on circuit shortly after the Judicature Act of 1873.
The Commercial Court has certainly done very good work in its thirty years of existence. It helps on the assimilation of laws in different countries on such subjects as bills of exchange, and it would be more important if there were more trade and if the practising Counsel’s clerks demanded less enormous fees. These two drawbacks should surely be remedied in the future and this Court is not likely to be replaced by any big international court working on Admiralty lines.