Legal reform

“ The reform of law by judicial construction, however forced and illogical, being a much more familiar and agreeable process than amendment by legislation, the art of quibbling, of drawing distinctions where there was really no difference, and of detecting resemblance though there was no essential similitude, was employed with no inconsiderable effect in contracting or enlarging the operation of legal principles ”

“ The tide of legal reform which set in fifty years ago has to sweep yet higher if the flaws in our jurisprudence are to be removed. The process of change cannot be better guided than by a well-informed public mind, and Prof. ”

“ In my own view, our legal system’s complexity, our federal system with its separate state and federal courts, our constitutional guar­ antees, our commitment to fair procedure, and, above all, a special need for reliability and fairness in capital cases, combine to make significant procedural “reform” unlikely in practice to reduce delays to an acceptable level. ”

“ Not only extra-legal reformatory movements, but even the attempts of legislators, or seekers of legislation, have aimed at amelioration by means of institutional changes and modified treatment of property and person. ”

“ The task of revising, of adequately revising the legislation of this age, is not only that which an aristocracy has no facility in doing, but one which it has a difficulty in doing. Look at the statute book for 1865—the statutes at large for the year. You will find, not pieces of literature, not nice and subtle matters, but coarse matters, crude heaps of heavy business. They deal with trade, with finance, with statute-law reform, with common-law reform; they deal with various sorts of business, but with business always. ”

“ I do not allude to any reform in the law, though I believe much to be needed. I mean to confine myself to amendments which it is in the power of the people to make for themselves, and indeed, which no legislature, however enlightened, can make for them. ”

“ The Court recognizes the need for a change in the Law. "We desire," says the Court, "to present no purely technical or hypercritical obstacles to any plan for the beneficent reformation of a branch of our jurisprudence in which, it may be conceded, reform is a consummation devoutly to be wished." ”

“ And, of course, the existence of such awesome judicial power cannot be buttressed or created by relying on the word 'procedural.' Whether labeled as 'procedural' or 'substantive,' the Bill of Rights safeguards, far from being mere 'tools with which' other unspecified 'rights could be fully vindicated,' are the very vitals of a sound constitutional legal system designed to protect and safeguard the most cherished liberties of a free people. ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ If the law is to be a living organism, and not a mere petrification, it is necessary to adopt and to use with vigilance some effective 25instrument of legal development, and the quality of any legal system will depend on the efficiency of the means so taken to secure it against a fatal conservatism. Legislation—the substitution of new principles for old by the express declaration of the state—is the instrument approved by all civilised and progressive races, none other having been found comparable to this in point of efficiency. ”

“ But the legislative reforms, when they come, would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs. ”

“ If they take the government diffident of their own strength, they may court popularity among the lower ranks by measures, under the specious name of reform, which might irrecoverably ruin the constitution of the country, before they could be displaced ”

“ To leave such rules nominally intact, and at the same time to indefinitely curtail or enlarge their operation by the withdrawal or addition of particular classes of cases through judicial construction, was a mode of legal amendment eminently adapted to the genius of such communities, and fruitful of many beneficent modifications of the law. It was a matter of minor consequence whether such modifications were effected by sound arguments or quibbles. In an age habituated to the amendment of law by legislation, nothing can be said in defense of the vicious practice of judicial quibbling. ”

“ I am inclined to think that there is no sentiment more general in the minds of the people of our country than a conviction of the correctness of the principle upon which the law enforcing civil-service reform is based. ”

“ As suggested earlier, development of the common law entails a simultaneously creative and declaratory function in which the court perfects a process of incremental legal development that the Constitution has already ordained. Once the court concludes that the Bill of Rights requires that the common law be developed, it is not engaging in a legislative process. ”

“ Legislation by even the most competent hands, like other forms of composition, is subject to the frailties of the imagination. Concentration on the basic aims of a reform like the Act of 1925 inevitable overlooks lacunae and ambiguities which the future reveals and which the future must correct. ”

“ The equality of the protection secured extends only to civil rights as distinguished from those which are political, or arise from the form of the government and its mode of administration. And yet the reach and influence of the amendment are immense. It opens the courts of the country to every one, on the same terms, for the security of his person and property, the prevention and redress of wrongs, and the enforcement of contracts; it assures to every one the same rules of evidence and modes of procedure ”

“ Carried too far in the stage of equity and natural law, overdevelopment of the administrative element brings about a reaction and in the maturity of law individualization is pushed to the wall once more. Yet this elimination of the administrative takes place more in theory and in appearance than in reality. For justice comes to be administered in large measure through the application of legal standards which admit of a wide margin for the facts of particular cases, and the application of these standards is committed to laymen or to the discretion of the tribunal. ”

“ If they fail to do so, if they do not themselves apply the remedy, they ought not to complain of others because they do not apply it for them. There need be no difficulty or delay in effecting reforms dependent upon legislative action, provided the people are true to their own interests. They elect their agents to act for them. If they do not elect men who are with them in principle, sympathy, and feeling, they ought not to complain.
But, says the reader, admitting that legislative reform can be accomplished, how can the decisions of the courts be changed? ”

“ Not 'every major social ill in this country can find its cure in some constitutional 'principle,' and * * * this Court (is not equipped to) 'take the lead' in promoting reform when other branches of government fail to act. ”

“ With the progress of society fresh perils emerge and fresh protections must be devised; the old legal right needs to be reconstructed to meet the new situation, or a new right must be created hitherto unknown perhaps, unless by analogy, to the law. ”

“ The agents of legal change, Fictions, Equity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognisance of the public tribunals. The ordinances of the government obtain gradually the same efficacy in private concerns as in matters of state, and are no longer liable to be overridden by the behests of a despot enthroned by each hearthstone. ”

“ But if the spirit of the Reform Bill implies merely a careful review of institutions, civil and ecclesiastical, undertaken in a friendly temper combining, with the firm maintenance of established rights, the correction of proved abuses and the redress of real grievances, - in that case, I can for myself and colleagues undertake to act in such a spirit and with such intentions. ”

“ From the foregoing considerations as to the advantages and disadvantages which are inherent in the administration of justice according to law, it becomes clear that we must guard against the excessive development of the legal system. If the benefits of law are great, the evils of too much law are not small. The growth of a legal system consists in the progressive encroachment of the sphere of law upon that of fact, the gradual exclusion of judicial discretion by predetermined legal principles. ”

“ Finally it includes the alteration of law—that is to say, the destruction of one legal principle and the substitution of another in its stead.
To carry out this threefold process, it is clear that we require instruments of legal development which are capable not merely of creating new law, but of destroying old. It is not sufficient to obtain new law which stands side by side with the old, as a supplement to it; it is necessary to obtain new law which excludes the old, as a substitute for it. We must possess instruments of abrogative, and not merely instruments of constitutive power. ”

“ It will not surely be confessed, that the government has wanted authority to execute its own laws; that the legislature has been awed by the populace, by the dregs of the populace, the drunkards and the beggars! Yet when the provisions made for the execution of a law so salutary, so just, and so necessary, were found defective, why were not others substituted of greater efficacy? Why, when one informer was torn in pieces, were there not new securities proposed to protect those who should by the same offence displease the people afterwards? ”

“ The reform movement has brought into prominence many public-spirited lawyers, who, either as attorney-generals or as district attorneys, have sought vigorously to enforce the law and punish its violators. The lawyers, like every class of business and professional men, have felt the influence of the reforming ideas, which have become so conspicuous in American practical politics, and they have performed admirable and essential work on behalf of reform. ”

“ And in times like these I do not think substitutions imported from other systems, including continental ones, offer promise on the whole of more improvement than harm, either for the cause of perfecting the administration of justice or for that of securing and perpetuating individual freedom, which is the main end of our society as it is of our Constitution. ”

“ Is it so improbable, that they should confer on the judicial department the power of construing the constitution and laws of the Union in every case, in the last resort, and of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change, which is to give efficacy to the present system, is its ability to act on individuals directly, instead of acting through the instrumentality of state governments. ”

“ A great and important change on the Reform Bill—an innovation on the foundations which, we were told, were non tangenda non movenda of the new Constitution, is vindicated on the immense destruction of the former freeholders which has taken place within these few years. ”

“ Pursuing the work of law reform, he was the means of effecting considerable improvements in the court of chancery, the abolition of the court of delegates, the substitution for it of the judicial committee of the privy council, and the institution of the central criminal court. ”

“ To give due effect to the civil administration of Government and to insure a just execution of the laws, a revision and amendment of the judiciary system is indispensably necessary. In this extensive country it can not but happen that numerous questions respecting the interpretation of the laws and the rights and duties of officers and citizens must arise. On the one hand, the laws should be executed; on the other, individuals should be guarded from oppression. ”

“ I know by historical study that the way of reform lies through official mazes of docket and précis and pigeon holes, that legislative decisions are hatched out in some bureaucratic incubator that the eye of common man has never seen. ”

“ During the generation which began with the Reform Act of 1832 the Liberals, indeed, extended the franchise to the middle classes, reformed the poor law, overhauled the criminal law, introduced a new and more satisfactory scheme of municipal administration, instituted public provision for elementary education, enacted statutes to safeguard the public health, removed the disabilities of dissenters, and assisted in the overthrow of the protective system. ”

“ With this much discretion, a legislature traditionally has been allowed to take reform 'one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. ”

“ A practice, thus fraught with confusion and perplexity, and one endangering the rights of suitors, it is exceedingly desirable should be reformed, and we are aware of no standard of reformation and improvement more safe or more convenient than that which is supplied by the time-tested rules of the common law. ”