USQ Law Society Law Review
Neil Mahoney
Winter 2022
THE IMPACTS OF THE SLOWER PACE OF CHANGE OF LEGAL VALUES, BY WAY OF COMPARISON OF SOCIETAL VALUES, AND THE IMPORTANCE THAT LAW REFLECTS SOCIETAL VALUES NEIL MAHONEY1 I
INTRODUCTION
Law by its very nature needs to adapt to changes in society and societal values. Without an external driving force, however, the law has no reason to change and will stagnate. 2 As law is an entity borne of society, the Volksgeist, and is not an entity in isolation, the driving force is societal change.3 As a result, legal evolution proceeds at a pace behind social change, as law needs to respond to events that have already occurred. For law to act on predictions of change in society, would result in potentially unjust laws, or laws that have no application outside theoretical frameworks.4 This is no foundation for the coherent operation of a set of norms so central to the effective functioning of society.5 At common law, then, delays is societal change is inevitable.6 There is a drive in modern society to attain surety of laws through codification of case law and development of legislation. These forms of law are more resistant to change than case law, and need to be drafted in a way that renders them suitable for fair use in society now, while having flexibility to be applied to different situations as they arise.7 Otherwise, the response to change in society is further inhibited and society will move beyond legislation before it even has time to respond, resulting in law that has no association with the society it serves.8
1
This paper was originally submitted as assessment for the subject LAW2224 Theories of Law.
2
Friedrich Carl von Savigny, System of the Modern Roman Law, Volume I, tr William Holloway (J Higginbotham, 1867) 15-17. 3
Suri Ratnapala, Jurisprudence (Cambridge University Press, 3rd ed, 2017) 343-344, 358.
4
Carl Menger, Problems of Economics and Sociology, tr Francis J Nock (Peter Harrington, 1963) 129-130.
Edwin W Patterson, ‘Historical and Evolutionary Theories of Law’ (1951) 51(6) Columbia Law Review 681, 695-697. 5
6
F A Hayek, Law, Legislation and Liberty, Volume 1: Rules and Order (Routledge Classics, 1982), 86, 88.
7
Hayek (n 5) 88-91.
8
Patterson (n 4) 689.
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