Wednesday, September 17, 2008

challenge to legal Eagle - when is it right to legislate?

In response to a post by Legal Eagle I wrote Round the blogging traps - Legal Eagle on the common law.

We both agree that the proliferation of formal legislated law has become a problem. Now I want to issue a challenge to LE.

LE, can you define just what principles might be used to determine just which issues are suitable for treatment by legislation, which should be dealt with by other means?


Anonymous said...

Hello Jim

Before Legal Eagle responds to your task/challenge, I would like to offer a comment or three.

1) the task you set is not possible to achieve/answer. Without several librarys full of qualifications, each of which is also qualified.

2) Principles. Are they those sort of bendy-things most of us see wrapped around reality? They're mostly coloured grey - never black or white.

3) But you are now in China? What do the flowers smell like?

with great respect

Anonymous said...

great, KVD, more later

Anonymous said...

I disagree, KVD. I think that one can at least identify issues that need to be addressed and suggest possible principles. Yes, there will be qualifications, but without all this we are stuck (or so it seems to me) in an evergrowing mess.

Anonymous said...

Deary me, I must have missed this challenge - I think this was when I started to have great problems walking...

To answer your question: broadly speaking, it is right to legislate when Parliament decides it wants to legislate. This is because it has a democratic mandate to legislate on our behalf.

Specifically, it is difficult to say.

Common law is reactive - it deals with problems once they have already arisen. Legislation is proactive - it tries to deal with problems before they arise. The common law tends to be more conservative.

Sometimes legislation is made to cut through a mess which has been made by the courts (this is a situation where it is good to legislate). For example, contributory negligence only arose with legislation. Sometimes it is more flexible than the common law (eg, the smorgasbord of remedies available in the Trade Practices Act).

However, sometimes legislation can create exactly the opposite effect of what was intended (eg, the Disabilities Act in the US, which was intended to stop discrimination, but led to a massive drop in the number of disabled people hired).

Sometimes it can be too broad. So it can catch conduct which should not be caught.

It's really hard to say generally what should be legislated and what should not. I think it just has to be taken on a case by case basis. It also depends what kind of legislation Parliament intends to enact - broad or detailed, well thought through or rushed etc etc...