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Furthermore, there are many examples of statutes which have addressed an undoubted social need which English judges could not realistically have met. The 1960s witnessed the passing in short order of the Abortion Act, the Race Relations Act, and the Sexual Offences Act (decriminalising homosexual acts), which have all (together with subsequent legislation in the same fields) attracted wide consensus. There is also a lively debate about whether it is the courts which should be deciding questions of fundamental rights, as philosophers such as Ronald Dworkin have maintained, or whether it is politicians, for all the chicanery and fudge of political decision-making, who should be doing so, as Lord Sumption has argued. (He points out that the US Supreme Court decision of Roe v Wade, recognising a woman’s constitutional right to an abortion, a decision which remains controversial in the US, might have gained more general acceptance if it had been promulgated by the legislature instead of by judges.)

Nonetheless, there are grounds for concern. Statutes reflect all the venalities of the political process, increasingly unmitigated by careful review and expression. (The Equality Act 2010 is a particularly lengthy and dismal example of Soviet-style draftsmanship.) The number of new laws is in itself troubling. There were 40 major Acts of Parliament on criminal justice or penal policy between 1997 and 2006. It has been estimated that in the same decade more than 3,000 new criminal or regulatory offences were created. A statute, once passed, is likely to remain in force; Parliament prefers to make new laws than to repeal old ones. The common law is a more agile and flexible means of correcting a newly-emergent problem. There is also the proliferation of secondary legislation (an issue acquiring acute significance in the context of Brexit), whereby statutory instruments, promulgated on the fiat of ministers and without full scrutiny, effect significant legal change. Thus, in becoming increasingly determined by statute, our law falls into some of the vicissitudes of the continental codes.

There is consolation in the fact that the task of interpreting statutes falls to the very judges who administer our common law. They can be relied upon to do so robustly, and there are often wide areas in which a statute accords significant interpretative freedom to the courts. Lord Justice Beatson has observed that while “the core of pure common law doctrine continues to shrink” under the influence of statutory incursions, what he calls the “common law technique” will continue — meaning that the business of statutory interpretation is a furtherance of the common law by other means. Judges have often stressed that common law and statute law should not be seen as oil and water, but as part of a single system. It is even suggested (as a corollary of this analysis) that judges should welcome elements of legislation into the common law. Beatson envisages that this would require academic lawyers to work co-operatively to identify the principles underlying statutes and the limits of such principles, in order apparently to plot them back into the unified system of which the common law is part. Although it is possible to think of examples where such a course might be realistic, this is not the development of the common law in any traditional or easily recognisable sense.
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