Richard Calnan on jurisprudence

In the 1940s, the American composer Aaron Copland received a commission to write the music for a ballet to be danced by Martha Graham’s dance company. The work was Appalachian Spring. The best-known section of the score is a set of variations on a Shaker song known as ‘Simple Gifts’, which contains the line:

‘Tis the gift to be simple, ‘tis the gift to be free'

The idea of freedom through simplicity is a powerful image; it underpins many of the Modern movements in architecture and the arts. It is also important in the law. It follows that any civilised system of law must have as its aim that it can be understood by the citizens to whom it is addressed. This was certainly appreciated at the end of the nineteenth century, when great strides were made by Sir Mackenzie Chalmers and others to codify and simplify important areas of commercial law, such as the law of sale of goods.

In the twentieth century, the case of the snail in the ginger beer bottle —which ended up in the House of Lords as Donoghue v Stevenson in 1932—perfectly demonstrated this quest for simplicity. This case was important because it swept away a series of detailed rules concerning liability for negligence and replaced them with one overarching principle, that a person is liable if they cause loss to another as a result of their negligence. This principle is based on the simple moral imperative that one should act reasonably. What is reasonable depends on the circumstances, and the standard can therefore evolve to meet the changing requirements of the times.

Stating the law at the level of principle is often easier to do in case law than it is in statute law, and it is statute law which has blossomed over the last century. An illustration of the problems this can cause is the way in which insolvency law has developed in the United Kingdom over the last fifty years. Rather than one insolvency procedure, we now have a multitude of different procedures. Some of these are applicable to particular types of company, but at least four are generally available to most companies. Every time there has been a change, something new has been added, complicating the process still further.

The most egregious example is the most recent: the Corporate Governance and Insolvency Act 2020, which takes more than two hundred pages of text to create a series of new detailed rules which overlay the existing laws. The result is a patchwork quilt of legislation—hard enough for lawyers to understand, let alone their clients.

The problems are compounded by the way in which the legislation is drafted. The new Act creates general rules to which there are large numbers of exceptions. For example, it creates a new moratorium procedure, which enables directors of companies to carry on trading without paying the company’s debts. But, because of the problems that this will cause, it then exempts many transactions from the new rules. So anyone having to decide whether the new law applies to a particular case has to work through a detailed and arbitrary body of law in an attempt to divide the sheep from the goats. It does not seem to have occurred to those who formulated the new law that if a putative rule requires so many exceptions, perhaps the rule itself needs to be reconsidered.

Simplicity was an aspect of Modernism. It came with the territory. But now we live in a Postmodern age, perhaps we need to be a bit more evangelical about it.