“No foresight can anticipate nor any document of reasonable length contain express provisions for all possible questions.”
Abraham Lincoln : The First Inaugural Address (1861)
Amongst lawyers, there is general consensus that it is virtually impossible to anticipate all questions of law. The primary purpose of law, as a lay-person would see it is to provide order and keep society civilised. But jurists would see the law from a differing philosophical perspective. The law is looked up to when there is chaos or uncertainty in society, it is used to create certainty. One could argue that the main purpose of the law is to keep society stable. So, when there is a lacking of answer of the law to society, this reduces the confidence of people towards the law. According to Lon L. Fuller; ‘it is generally accepted that the citizen has, under ordinary circumstances and subject to exceptions, a moral duty to obey the law.’ In relation to obeying the law for protection, as lay people would see the serving purpose of the law. When talking about the law, on its own is a quite broad and hefty topic.
Additionally, the statement made by Abraham Lincoln states that it is impossible for organic law to anticipate all questions of law, generally includes legislation of importance such as constitutional law. Law can be divided up, as between primary and secondary legislation. Primary legislation holds the upmost importance, including Statutes and Acts of Parliament, where constitutional law is derived from. Secondary legislation tends to birth from common law. But even then, the law is restricted by limitations to cover for its lack of foresight to issues of law. For e.g. ‘In English law, only decisions made by public bodies, or bodies understood to be performing public functions, are amenable to judicial review.’ As well as the limits on the courts, they also find strain in litigation, dealing with political controversial areas of law, such as euthanasia. Some may argue that the judicial decision making power drifts too close to political, executive power.
Also a notable issue raised in the context of the statement made was for the United States of America, differing to the legal system’s position in the United Kingdom, because the United Kingdom does not have a written constitution. It is argued by many that the United Kingdom doesn’t have a constitution as F.F Ridley established his requirements for a constitution. However, according to opposing opinions, it is argued that the United Kingdom has increasingly moved towards the path of becoming codified. Reasons for this can be identified as to its membership with the European Union, the expansion of judicial review. Due to the structure of the constitution, where there is uncertainty in law, it must be pointed out, in that sense, makes the law reactive rather than proactive, due to limits of not having a codified constitution.
Inevitably, when an issue on a point of law first arises, the courts will first consider any statutes or legislation that will be relevant to it. In the English legal system, Acts of Parliament are considered to be the primary form of legislation. In a lecture, Lord Mance stated that the “judicial role often involves the identification, evaluation and application of the fundamental societal principles.” It is up to judges to interpret and apply legislation to questions of law that may arise from practical administration. The approaches that judges take in finding legislation specific to a case may not always lead to a standard, clear answer depending on the facts of a case. ‘Hard cases’ in particular are more difficult in terms of applying primary legislation to, this is because the statute may not contain clear express provision. This can be seen in the case of Owens, in this case the courts chose to follow the literal rule and applied the definition of teaching to the characteristics of the occupation of the appellant to determine the issue. It can be argued that via common law and raising points of law, is beneficial to the legal system in terms of its development in contemporary society and allows for flexibility amongst the law.
Nonetheless these developments also highlight the fact that there are grey areas in the law which require statutory interpretation, since the provisions or statutes can not foresee or anticipate every question of law. Legal rules, whether created by legislation or common law, are doomed to be over and under-inclusive with respect to their true rationales. However, with the courts usage of statutory interpretation through the different possible rules; each of the approaches courts rely on are designed to frustrate those taking advantages of imperfections of the rule creations. Therefore it could be said with certainty although there is no express provision for all possible questions, statutory interpretation allows flexibility of the law to be developed with contemporary society.
The statement made by Abraham Lincoln takes on a pragmatic approach towards the law. There is unanimity in that it is impossible to answer every question of law that may arise from practical administration. In common law, it is the idea that the higher courts decisions are binding on the lower courts. Common law consists of rules, because it has become custom to do things in a particular way, and that custom has become settled and accepted way of behaviour. This is also illustrating the idea of the English law having loopholes, but this is stopped by courts who overcome these issues. In this way the courts guard and allow the development of the legislation, without the need for a complete reform by parliamentary law-makers.
Consequently with common law, the general notion of the doctrine of judicial precedent is that it lulls a false sense of confidence that the law will always be clear cut and easy to identify. If a case were not to have reached an appeal court, then there would be no issue of law raised, this demonstrates the law’s lack of ability to uphold society’s confidence in maintaining clear-cut answers for everything. This would mean that there would be ongoing and unjust legislation which cannot be resolved unless it is brought up by a case. This demonstrates the difficulty in tackling limited foresight, for questions of law that may or may not arise.
In regards to the statement by Abraham Lincoln, it is clear that it is virtually impossible to foresee and anticipate all points of law, and cannot possibly contain an express provision to answer every possible question. However, the usage of common law and statutory interpretation allows for the loopholes and grey areas to be covered to some extent.
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