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LAW - Is it becoming a bindweed strangling the nature of the United Kingdom? What is the law of the United Kingdom? Can anything be done about it? How does it affect dispute resolution procedures other than litigation? As a layman, I have a general belief that the law should be a clearly recognizable framework which enables society, and all within it, to live freely in harmony, peace and safety. A society where people know where they stand with one another. A society where people know in advance when they will cross the line of unacceptable behaviour. And, of course, a society where people will know what will happen to them if they do not abide by the law. A trip through any well stocked law library will instantly disabuse us of any such notions. If one entered a comprehensive law library and made one's way towards the records of statues and, then, if one dedicated oneself to read and understand the contents, surely, one would be wheeled out of the library in one's coffin long before the task was completed because a whole lifetime would not allow for such effort. If, instead, one turned to the records of case law, one would hardly scratch the surface before one's time was up. Indeed, one would have to say that it is unlikely that anyone really knows the law of the United Kingdom. Perhaps the law of the United Kingdom was always a mystery in its totality, but one gets the impression these days that it is more so than ever it was before. One gets the impression that the Government is becoming the Bright Ideas machine which, additionally, is kept well fuelled by the European Union. These giants of innovation surge forward with elevated desires, but they also leave much lacunae in the laws which they create. These lacunae in the laws are naturally, by human nature itself, eagerly filled by the higher levels of the judiciary. It is now some 10 years ago that The Rt. Hon. The Lord Goff of Chievely passed the observation that: "Common law lawyers tend to proceed by analogy, moving from case to case. We [he said] tend to avoid large, abstract, generalisations, preferring limited, temporary, formulations, the principles gradually emerging from concrete cases as they are decided." ('The Wilberforce Lecture 1997 - The future of the Common Law' (1998) 64, JCI Arb. 2, p. 99.) The words of Lord Goff reflect quite clearly the fundamental cause of the dynamic state of the law even without the continual input of the Government and the European Union. Moreover, when these three giant legs of the law are busy working at the same time, and not always moving in the same direction, there can be no wonder that the whole of the United Kingdom is in a fermenting state. The truth is evident especially from the standpoint of small traders who are often overwhelmed with legal requirements; which requirements include a mass of regulations and various codes covering every aspect of life and work. This current state of play frustrates the honest person; it is generally ignored by the dishonest person; and it inevitably bewilders most people. For example, many small traders are often frightened to employ anyone to assist them in their daily activities [indeed, this situation is often also applicable to professional people like arbitrators and experts working on their own as self-employed people]. Whereas, on the other hand, many large traders seem to be almost beyond the law in the context of employing people. In reality, it seems that small traders often fear that they will be crushed by the law enforcers should a slip be made and, yet, many large traders simply wear down the law enforcers by the might of wealth and legal expertise. Naturally, one would not expect all of the people in the United Kingdom to understand all areas of the law, which laws may, for example, relate to the generation of nuclear energy. However, in the normality of peoples' daily lives there should be a greater sense of understanding. The problem of too many laws, and also laws which are too complex, is simple, namely: that where the task of understanding the implications of everyday laws is generally beyond the capacity of ordinary people, then for practical purposes very few people exercise themselves to bother about the law at all; save that they avoid doing activities which appear to be potentially fraught with difficulty [i.e., like the small trader employing people as referred to above]. The result is that the more demanding the laws become and the more complex the understanding of them, the less the laws have any effect. This result is either because people do not know about particular laws, or because they believe that they do know sufficient and they avoid operating in areas where they think they could be exposed to unnecessary risk. The progressively developing stranglehold of the law, which is becoming more and more incomprehensible to the masses, debilitates individual people and, as a result, society generally becomes a dysfunctional system; at least in the sense of positive compliance with the law. Put simply, the law is progressively becoming like the bindweed. Figuratively speaking, the law displays a selection of quite pleasant blooms above the ground, but at the same time it develops a strangle-hold, and by its roots it destroys many desirable plants of choice. If the layman is forced by events to dig around amongst the roots of the law, he or she will soon discover the threads of the law stretching endlessly in every direction. Of course, I accept that some people who are experts in the law may say that I have not really grasped the issue and that the manner of my writing this article demonstrates that failure. In response, I would just ask anyone who claims to have a full and comprehensive understanding of the law to stand up and be tested. For example, I do not think that it is just professional politeness that forces an expert in one aspect of law to refer on to another expert a question about some other related field of law. On the question, 'Can anything be done about it?', I think that the answer must be 'No.' At least, that must be the answer in the short-term. On the question, 'How does it affect dispute resolution other than litigation?' I think that the answer must be that it seriously affects such dispute resolution. If you accept the views expressed above, then in the context of arbitration, the very least we can do when dealing with parties in dispute is twofold. First, we should be understanding in respect of the parties as to their misconceptions and misunderstandings of the law whilst, at the same time, making sure that we give decisions which are fully in accordance with the agreements between the parties. Second, we should be ever vigilant in the hard task of detecting plain dishonesty and ulterior motives. Of course, in the other fields of dispute resolution, e.g., the non-binding ones, we should be especially understanding in respect of the parties as to their misconceptions and misunderstandings of the law, but fortunately we do not carry the burden of having to give decisions which are in accordance with the law. Francis Miller |
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