A blupete Essay

Certainty of Law, Part 6 to blupete's Essay
"Legislation: Robbers' Rules"

One of the principal reasons given by those who advocate legislation is that with legislation the population will have, to a better degree, certainty of law. It is necessary, if a person is to plan their affairs, that he or she knows what the law says about the particular activity that is being contemplated. We see from a study of the history of law that this element, certainty of the law, has ranked high in the mind of the juridic thinker. The Greeks wrote their laws on the walls of public buildings; we should do no less, than writing them out in statute books. Supporters of legislation argue that judge made law9 is too uncertain and can only be found by persons versed in legal research, in dusty old case reports.

The truth of the matter is, that written law, is more uncertain than judge made law, the common law. And the reason for that, is, it is simpler to change written law than the common law. Common law is a slow moving, evolutionary sort of thing; it is not under the command of any single generation. As experience has proven, anyone of us can go to bed one night with one set of legislative laws and wake up next morning with an entirely different set. One set of laws are passed to cure a perceived problem. After some time, assuming the problem has been relieved (often there is no effect, indeed the problem to be got at can become even worse on account of the legislation) other problems are brought on directly related to the implementation of the "curing" legislation. So, more legislation is rushed in to fix the additional problems. And so, it is not unusual to see certain legislation to be written and rewritten over and over. This is a separate and inherent problem: the jerkiness in legislation. Judges, on the whole, are scholarly individuals who are interested in ascertaining things rather than, like legislators, changing things. So too, unlike legislators, judges cannot easily enact arbitrary rules of their own; we needn't expect sudden laws from judges as we have come to expect from legislators with their wide ranging and imperious manner.

Walter Bagehot, that much respected English legal writer, wrote about this inherent jerkiness in legislation:

"The manner of our legislation is indeed detestable, and the machinery for settling that manner odious. A committee of the whole House, dealing, or attempting to deal, with the elaborate clauses of a long Bill, is a wretched specimen of severe but misplaced labour. It is sure to wedge some clause into the Act, such as that which the judge said 'seemed to have fallen by itself, perhaps, from heaven, into the mind of the legislature', so little had it to do with anything on either side or around it. At such times government by a public meeting displays its inherent defects, and is little restrained by its necessary checks."10
Thus, certainty of the law is best served where there exists a series of rules spontaneously adopted by people in common and eventually ascertained by judges through centuries and generations; and, not, from imprecise text emanating from legislatures which are driven by groups who know little about the "evil" which they see and would like to get at.

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2011