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The work of the British law commissions: law reform … now?
The Theory and Practice of Legislation Pub Date : 2017-12-10 , DOI: 10.1080/20508840.2017.1406440
Jonathan Teasdale 1
Affiliation  

One chapter in Law Reform Now – a ground-breaking book published in July 1963 under the editorship of Gerald Gardiner, QC and Andrew Martin – was to become the catalyst for legislation two years later, creating the machinery for enhanced law reform in England, Wales and Scotland. Law reform and its formalisation was nothing new: it had been tried and tested in British India (as it then was) with a series of law commissions starting in 1834 and culminating, post-independence, in the current commission of 1955. But in the United Kingdom, a predominantly common-law-based jurisdiction, the idea that the huge volume of case law and the ever-growing statute book should somehow be reviewed and rationalised (and perhaps even codified) had failed to take hold. Gerald Gardiner became Lord Chancellor in the Wilson Labour Government (1964–1970) and was able to put his plan into action, although not in quite the form that he and Martin had envisaged. In many ways the finished product was better. The Law Commission for England and Wales (two nations, one legal jurisdiction) was designed to operate as an independent body on the payroll of government, chaired by a High Court judge, and led by appointed commissioners (supported by high calibre civil service lawyers), who would exercise their own judgment as to the recommendations they made for reform of different aspects of the law. On the face of it their task was huge. The 1965 Act required the Commission – and its Scottish counterpart, established at the same time – to keep under review all the law of England and Wales (and initially the law of Northern Ireland which had not then been devolved to the province) ‘with a view to its systematic development and reform’. In practice this was going to be impossible, but both commissions set about their work with high expectations. Their first programmes of work were wide-ranging and resource intensive. The principal challenges that emerged over the succeeding years were threefold:

中文翻译:

英国法律委员会的工作:法律改革……现在?

1963 年 7 月由杰拉尔德·加德纳 (Gerald Gardiner)、QC 和安德鲁·马丁 (Andrew Martin) 主编的开创性著作《现在的法律改革》(Law Reform Now) 中的一章将在两年后成为立法的催化剂,为英格兰和威尔士的加强法律改革创造了机制和苏格兰。法律改革及其正式化并不是什么新鲜事:它已经在英属印度(当时的情况)通过一系列法律委员会进行了尝试和测试,从 1834 年开始,在独立后的 1955 年达到高潮。但在英国是一个主要基于普通法的司法管辖区,认为应该以某种方式审查和合理化(甚至可能编纂)大量判例法和不断增长的法规的想法未能成立。杰拉尔德·加德纳 (Gerald Gardiner) 成为威尔逊工党政府的大法官(1964-1970 年),并能够将他的计划付诸行动,尽管与他和马丁设想的形式不太一样。在许多方面,成品更好。英格兰和威尔士法律委员会(两个国家,一个司法管辖区)旨在作为政府工资单上的独立机构运作,由高等法院法官担任主席,并由任命的专员领导(由高素质的公务员律师支持) ,他们将自行判断他们为改革法律的不同方面而提出的建议。从表面上看,他们的任务是巨大的。1965 年法案要求委员会——及其苏格兰同行,同时建立 – 不断审查英格兰和威尔士的所有法律(以及最初尚未移交给该省的北爱尔兰法律),“以期对其进行系统的发展和改革”。在实践中这是不可能的,但两个委员会都怀着很高的期望开始了他们的工作。他们的第一个工作计划范围广泛且资源密集。随后几年出现的主要挑战有三方面:
更新日期:2017-12-10
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