Questions of Law
Reform
In Quest of Justice. By Claud Mullins. (Murray. 12s.) THE courage of any author or publisher who gives to the world any book on legal reform is almost superhuman. The ordinary layman is not usually able to understand most of what is proposed, and lawyers are often indifferent. More- over, the general movement for reform has been considerably cooled in legal circles by the only reform on a big scale which has recently taken place, namely, the Law of Property Act, 1925.
After all the blowing of trumpets which occurred for years before it passed with all the prestige of the Ten Command- ments, one might have supposed that the subject matter of that Act was to be simplified. Instead of this the law of joint tenancy was confused and had to be cleared up by another Statute in 1926. There was a considerable amount of legislation by reference, of misleading definitions, and much implication of conditions and obligations where none is desired or contemplated by contracting parties.
Democratic conditions do not favour the employment of the best brains on legislation, and the day has passed when we are likely to get any Statute as clear and decisive as the Partnership Act, 1890. However, Mr. Mullins certainly makes some valuable suggestions for reform, although perhaps at unnecessary length and with undue repetition. He might have done well to set out the report of the London Chamber of Commerce either at length or in abridged form in an appen- dix to the book instead of taking little bits out of it from time to time.
His remarks on French and German Court practice and the laws of evidence are interesting and well worth reading. So also are his remarks on Codes, though he perhaps exag- gerates the superiority of the German Cdde to the French Code. He mentions that Turkey did not adopt the French Code ; but he does not mention that Persia did. He submits interesting proposals upon enlarging local justice and abolishing many anomalies in regard to the rules of appeal. He thinks that the House of Lords should no longer exercise its functions as an Appellate Tribunal but should amalgamate them with the Court of Appeal. This would leave certain Law Lords and Lords Justices free to "undertake the invaluable work of watching over and improving our private law and of supervising generally the methods of litigation."
Therefore Parliament should pass a law enabling legal members of the House of Lords to exercise jurisdiction over all matters connected with private law and litigation. This authority could work out new schemes which should receive the formal approval of Parliament somewhat as Church measures have to receive that approval under -the Act of 1919. Under this system the new legal authority could set on foot and supervise the gradual and progressive codi- fication of our judge-made law. It could examine the decisions of the Court in so far as they propounded new law, and could decide which of them should in future be regarded as part of the law of the land. Various other important duties could be thrust upon the legal authority, and so long as Parliament was docile enough not to exercise any rights of veto, everything would go smoothly.
At present the results of judge-made law are still open to the satirical parallel of Fitzjames Stephen and Bradshaw's railway guide. He wrote :—
"That Code is puzzling enough ; but what would be our state if we had to discover our route by examining and comparing all the orders given by the directors of railways from their origin and interpreting them in accordance with a set of unwritten customs putting special meanings upon the various terms employed ? "
Probably the only chance for legal reform is to protect it as far as possible against the stupidity of the House of Commons.
This might result in doing away with certain anomalies in connexion with the procedure of appeal and conflicting decis- ions; but it would probably not make the path of common sense much easier in matters like divorce law reform where prejudice and herd instinct are always intruding.
During the last decade a German lawyer paid me the compliment of consulting me in regard to a measure of divorce law reform which was to be enacted in Germany. We agreed that the best divorce system would be one from which all factors of delinquency and recrimination were excluded as
much as possible, and which logically accepted marriage as a civil contract. I then asked him how such a law could possibly be passed, to which he replied that the German people had great confidence in expert legislators and scarcely ever challenged their conclusions. I assumed that he knew his own business best, but was not astonished three years later to see that the German Government had only just saved its skin after a violent attack upon the proposed divorce law by the Bavarian and other Catholics, who rose in their might like the House of Commons when the New Prayer Book was laid before it.
Such storms might not occur in regard to such questions as enlarging the jurisdiction of County Courts so long as the judges were not multiplied or given any higher salary ; but squalls might be anticipated if any suggestion were made to limit a learned counsel's power to make his own bargain as to fees or if any attempt were made to reduce any bureau- cratic emoluments in any branch of the Civil Service except judges and magistrates. Moreover, the elderly lawyers who would be in charge of new legislation are not usually ardent reformers, though Mr. Mullins perhaps exaggerates their conservatism. The crucial problem of to-day is how to abolish the tyranny of bad law without substituting the tyranny of worse bureaucracy. For the last fifty years the Law Society has done more for law reform than any other set of individuals in Great Britain, but being composed of mere solicitors it is not usually treated by Ministers with the
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