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 Front Page arrow Titles (by Subject) arrow 23.: PRACTICABILITY OF REFORM IN THE LAW MORNING CHRONICLE, 8 OCT., 1823, P. 4 - The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I

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Subject Area: Political Theory
Collection: The Collected Works of John Stuart Mill

23.: PRACTICABILITY OF REFORM IN THE LAW MORNING CHRONICLE, 8 OCT., 1823, P. 4 - John Stuart Mill, The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I [1822]

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The Collected Works of John Stuart Mill, Volume XXII - Newspaper Writings December 1822 - July 1831 Part I, ed. Ann P. Robson and John M. Robson, Introduction by Ann P. Robson and John M. Robson (Toronto: University of Toronto Press, London: Routledge and Kegan Paul, 1986).

Part of: Collected Works of John Stuart Mill, in 33 vols.

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23.

PRACTICABILITY OF REFORM IN THE LAW

MORNING CHRONICLE, 8 OCT., 1823, P. 4

This letter, reflecting Mill’s continuing interest in Benthamite law reform and his tutoring in the preceding year by John Austin (1790-1859), Benthamite disciple and close acquaintance of the Mills, appears to have no occasional cause. Headed as title, subheaded “To the Editor of the Morning Chronicle,” it is described in Mill’s bibliography as “A letter on the practicability of reform in the law, which appeared in the Chronicle of 8th October 1823. Not signed.” (MacMinn, p. 4.)

sir,—

That numerous and powerful body, the practising Lawyers, whose opinions the public adopt far too implicitly on the subject of Legislation, have an evident interest in the permanence of the confused and unintelligible mass which now bears the name of law in this country. In proportion as the law is complicated, the influence of the only class who can interpret it must increase; and it is as little to be expected that Lawyers should advocate the adoption of an intelligible system of law, as it was in the time of the Reformation, that the Priests should consent to suffer the Laity to peruse the sacred volume.

We need not therefore be surprised that lawyers should have a number of fallacies at command, with which they combat all attempts at reform in the law. Of these dicta, one of the most frequent is, that it is impossible to devise general rules which shall include all particular cases.

This notion originates in a confusion between questions of law and questions of fact. The latter are innumerable: there is no one case which in all its circumstances exactly resembles another case. It is therefore impracticable to make rules for the decision of all questions of fact. But the questions of law which arise may easily be reduced under a very small number of heads.

Let us consider on what questions every law-suit must necessarily turn. In civil cases the subject of the dispute is, to which of two persons a particular right belongs. Each of them, in order to prove the justice of his claim, affirms that one of those events has happened which give commencement to the right; in the case of an article of property, for instance, that he has bought it, inherited it, and the like. His adversary either denies this event, or affirms that another event has occurred, which gives termination to the right, that he has sold the property, or forfeited it by some subsequent transaction. The question of fact, therefore, is, whether the alleged events have happened, which of course must be determined by the evidence. The questions of law are, in the first place, what the right is; and next, whether the alleged events, supposing them to have happened, are of the number of those which commence, or which terminate the right?

The problem, therefore, of making a Civil Code, consists of two parts. It must be determined what rights it is expedient to create; and it must be determined what events shall give commencement, and what shall give termination to a man’s enjoyment of the rights.

Neither of these is surely an impossible task. A right is the permission, granted by the law, to make a particular use of a person or of a thing. Now it may surely be determined what uses a man shall be suffered to make of his property, what rights he shall be allowed to exercise over his servants, his family, &c.; and reciprocally, what services they shall have the power of exacting from him. The events also, on the occurrence of which these rights shall begin or terminate, may surely be defined. These are, the modes of acquiring and of losing property, and the like.

To determine all these questions is to make a civil code, which will apply to every individual case that can be conceived; since there is no case in which, when the state of the facts is ascertained, the dispute can turn on any question, except the extent of a right, the facts which confer the right, or the facts which take it away.

Nor is it more difficult to construct a body of penal legislation which shall extend to all cases whatever. All rights having been defined, it only remains to assign an appropriate punishment to every violation of those rights.

It appears, then, that there is not that inherent impossibility in devising general rules to fit particular cases, which is affirmed by lawyers to exist. Moreover, it is evident that in all cases which are not left absolutely to the discretion of the Judge, whenever any rule is consulted, even if one decision is made a rule for another, this is applying a general rule to a particular case. The Judge says, A shall enjoy a certain right, in consequence of a certain event; because, Sir Matthew Hale says,1 that this event is sufficient to confer the right; or because Lord Chief Justice somebody declared in the case B versus C, that B became entitled to enjoy the same right, in consequence of the same event. Is it not evident that in both these cases, the Judge is deciding according to a general rule laid down by his predecessors, that the event in question shall always confer the right in question? So that the dispute between the Lawyers and the Reformers of the Law, is not whether it is possible to devise general rules, for this is done by both parties alike; but whether these general rules shall be fixed or variable; and whether they shall be formed upon the universal experience of mankind,—in other words, upon philosophic principles, or upon an induction of one or two instances only,—in other words upon precedents and cases.

[1 ]Matthew Hale, Lord Chief Baron of the Exchequer (1660) and Lord Chief Justice (1671), a major legal authority.