Is the law too complex and obscure?

It is commonly established among both lawyers and litigants in person that the vast amounts of both statute and common law are both very complex and obscure.

In Lord Binghams’ book The Rule of Law he emphasises the necessity for law to be “accessible and so far as possible, intelligible, clear and predictable” and the modern law is becoming further and further away from this key principle.

In the recent Peter Taylor Memorial Lecture, Stephen Irwin discussed this issue, and noted that “lawyers create complexity in order to achieve certainty and avoid obscurity” however in practice, the exact opposite has occurred, which makes the matter even more interesting to discuss.

English law is created from two components, Statute Law which is set down by Parliament and Common Law, which is created by the decisions of judges in individual cases. Legislation is always broad in its interpretation and often has purposeful gaps in its content. It can also become outdated very quickly.

The Common law practice was designed to interpret the legislation and apply it to specific disputes that arise, thereby working to fill the gaps and evolve the legislation. Of course, new cases with new details can add inconsistences and consequently the law grew more detailed and complex.

There then sits behind all of this, a branch of law called Equity. Equity recognises that sometimes Statute and Common Law result in a decision which is manifestly unfair and obscure. Equity redresses the balance by placing the parties in an equal position. Of course this added further to the complexity of the law, which can lead to lawyers making the law even more detailed and elaborate.

Stephen Irwin strongly suggested that all components of the legal system work towards the removal of the complexity, to cut through the fog, and provide clarity. This is increasingly important to ensure just outcomes, and an efficient and effective legal system.

When choosing a solicitor, you should ensure that you choose an individual who will not bog you down with intricacies; but rather someone who will talk plainly, advise you on your options, and assist you in understanding the issues of your matter. You should also seek out a specialist to attend to your matter, with all of the nuances law has created, only a specialist will be qualified to see you to a fair outcome.

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