‘Not Time to Make a Change’? Reviewing the Rhetoric of Law Reform

Abstract

How do we talk about changing the law? This article considers the rhetoric of law reform and what it can tell us about the current relationships between key institutions involved in the relevant processes. A key claim is that the rhetoric deployed in formulating proposals can complicate the fate of law reform projects as they develop. Several examples from private and criminal law are used to support the argument, with assessment of the interaction of time and legal development. The language of ‘modernisation’—a noticeable theme in contemporary proposals from the Law Commission of England and Wales—is scrutinised. The Commission’s statutory functions expressly include ‘the repeal of obsolete and unnecessary enactments… and generally the simplification and modernisation of the law’, but what ‘modernisation’ means in this area has, so far, been under-examined. The author then goes on to identify attitudinal and structural tensions in the current relationship between the Law Commission and Government. Constructive suggestions are offered for reforming our law reform practices. The way in which we talk about law reform can be understood as both a cause and symptom of some of the problems in developing the law today.