LYCURGUSINTRODUCTORY
LYCURGUS
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. Englishlaw 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 necessitatesincessant 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 seemovable 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 canbe 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 facilitiesand 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.