The law's too complex for even the courts to understand

It has been said of the American legal system that all, everyone, commits at least one felony a day. Simply because the system is so wildly complicated. The problem with this is not that therefore the entire country should be in jail – electing Hills would have solved that one – but that it leaves the State, more realistically the deep part of it, to decide who does get prosecuted for what all are doing.

We’d really prefer not to have that sort of caprice in our society, that pissing off the wrong prosecutor puts you in jail, being buddies doesn’t.

Our own, English, legal system seems to be sufficiently complicated that not even the courts understand it:

Courts may have created accidental bigamists by wrongly applying divorce rules, country’s most senior family court judge has warned.

Sir James Munby, president of the High Court’s family division, issued a warning that in “a number of cases” couples had not followed the rules properly and courts had allowed divorces which were null and void, invalidating later remarriages.

Note that lovely little change there. From the courts did….to people did…how lovely is that shucking of responsibility.

Don’t worry too much about what it is. The length of time you’re supposed to leave between knowing you want to bunk off and you being legally bunked off depends upon the excuse being used for bunking. Some couples, permitted by some courts, may not have waited the appropriate time in some cases.

Some couples will now have to file their divorce petition again and lawyers warned that the revelation meant settlements could be reopened and family inheritances called into question.

In guidance for courts, Sir James said they “will wish to be alert to the potentially devastating impact on litigants of being informed that there is a ‘problem’ with their decree, especially if (and this is unlikely to be known to the court when the first communication is made) a litigant who believes that they have been validly divorced has remarried or is due very shortly to remarry.

“Communications should accordingly be expressed in appropriately sympathetic and apologetic language.”

Sympathy might not be quite it. I for one would suggest that instead of the law taking its usual leisurely course here a team be drafted in to get the job done. Paid for, by preference, from the pensions of the judges who allowed this. That’s what they are for, isn’t it? To administer the law?

That deeper point though being the important one. If the courts themselves don’t know what the law is then what hope for the rest of us? Rather an argument in having very much less law, isn’t it?

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Author recently made the wise point, with respect to applying trademark law to monkeys, that the law needs to be interpreted keeping in mind the reason for the existence of the law in the first place. This is explicit in American contract law, where the contract is the idea that partners intended to agree to (to the extent that the court can discern it), not the drafting defects. Most contracts include a clause providing for “liberal construction” to achieve the intended ends. So if a couple have gone to relevant authorities for a divorce, taken the steps that seem to… Read more »