Two-Tier Law - A New Approach to Law-Making

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Abstract

A stock response to any suggestion for major change in law is, " Neat; but it won't work here." Law is very traditional, slow to modify its rules, structure and mode of creation. I want in this paper to outline a method or manner of law-making that would, I believe, be much more satisfactory than those at present in use in the Western world. I will discuss it at the outset in the abstract, separate from any question of how the method of law-making fits into the tradition of any particular State or any existing way of creating law. The object at this stage is thus to set up a picture of law-making which we would consider worthy of admiration if it existed elsewhere. We need not, therefore, be detained by anxiety over the problem of whether it would work here, wherever here may be. Later, the attempt will be made to reduce this element of unreality.

For the sake of simplicity I will bring into primary discussion only the making of what is traditionally considered private and commercial law: persons, property, succession, obligations, corporations, foundations, banking, insurance, carriage of goods, bankruptcy, i.e. the usual subject matter of civil codes and commercial codes. Similarly, the discussion will proceed at this stage as if this method of law-making is (virtually) the sole available in the particular state or society. (For brevity, the term " source of law " will frequently be used, as an exact synonym for " method of law-making.")

The extent to which a source of law is " satisfactory" should be judged, I submit, by three tests. First, how responsive is the law to the serious needs and desires of the community ? The more easily a source of law allows law to change when society undergoes change, the better the source of law. Secondly, how comprehensible is the law to the persons affected by it? The more comprehensible the law, the more satisfactory the source of law. Thirdly, how comprehensive is the law ? The more certainly the existing law can provide an answer to the legal problems that arise the more satisfactory is the source of law. Typically a tension exists between the ease of comprehension of law and its comprehensiveness.

The preceding paragraph begs a number of important questions. But it is in the nature of philosophical discussion that unless some questions are begged at the outset progress is impossible. " Needs and desires " is simply the term used to denote the objects which, it is intended, the law should serve. " The community " means the citizens of a state, or at least the citizens residing within a state. Further clarification of these two terms is not necessary in this paper.

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