The Law Reform Process
From Common Law Methodology v Law Reform Process by LJM Cooray (1985)

The analysis of "the common law methodology" contains some criticisms of the law reform process.

There is no ideology which may be said to underpin the law reform process, though there are three identifiable conceptual strands — the political and civil liberties strand, the equality strand and the permissive liberal strand.

The political and civil liberties strand is self explanatory. It includes traditional political and civil liberties, equitable electoral distributions, fair voting systems and participatory democracy, involving worker participation in industry and grass roots involvement in the decision making process of government at different levels.

The equality strand includes demands for equal opportunity, equal wealth and income and equal social status. It also focuses on redistribution of income and wealth, inequalities in the private sector of the economy and in areas such as education, health, housing. Taxation and detailed regulation are the means through which these are to be achieved.

The permissive liberal strand involves a relaxation of restrictions imposed by the traditional legal system in areas such as censorship, drug laws, family law, police powers and the prison system. This strand (along with the equality strand) involves focus on the liberation of minority groups.

The noteworthy feature of the law reform process is the piecemeal nature of change. There is a focus on an alleged area of legal regulation or absence of legal regulation which allegedly leads to exploitation, unfairness, inequality, oppression of minorities etc (falling within the above three strands).

The criticism of the piecemeal nature of change will also strike a chord (for different reasons) with (the system is fundamentally flawed and must be replaced) radical reformers in the equality/participatory democracy conceptual mould.

The Common law has been under continuing assault leading to reforms of the law. How and why has this attack taken place? Some relevant factors are provided.

  1. Law reform on the basis of the law reports.
  2. The move away from principles to discretions.
  3. A "where there is a problem lets do something" mentality, coupled with the absence of evaluation before reforms are initiated and a lack of a sense of perspective.
  4. The attempt to create a "New Man".
  5. The moral dimension undermined by permissive liberalism and ideas of equality.
  6. The critical spirit without a sense of perspective running wild in the social sciences in education — with consequences for politics and society.
  7. The strengths of evolutionary muddling through process is not understood by the academic mind who influence policy.
  8. The growth of government — faith in centralism and regulation in areas where freedom existed and relaxation of regulation in areas where freedom was restricted.
  9. Ideas of democracy, equality and fairness which defy definition — and which in practice lead to big government and failure to achieve expected aims.
  10. A failure by the supporters of the common law to explain and defend the system and incessant propaganda against it by its detractors who peddle a superficially misleading alternatives.
  11. Absence of common sense in the realm of ideas which influence policy.

Space provides a limit to exploration of all these issues. Some of them have surfaced during the above analysis. Some aspects of why and how the common law system was undermined and declined are explained.