It is easy for law to become outdated and to lose touch with contemporary concepts and values. In addition, the ever-changing nature of society and human behaviour means that new areas of law and regulation are constantly emerging.
This reality exists in all jurisdictions, irrespective of their legal origins, and whether the source of law is just legislation (written law) or both legislation and case law (judge-made law) [for a discussion about the differences between legislation and case law, see China Business Law Journal volume 3, issue 2: Binding or persuasive?]. This article discusses the nature and process of law reform in common law jurisdictions, particularly Australia, and in the People’s Republic of China.
What is law reform?
Put simply, law reform is the process of identifying deficiencies or gaps in the existing law or legal system, and recommending and implementing changes to remedy them. The process is not a straightforward task, as it requires extensive research into both legal and non-legal issues.
Sometimes the solution lies in updating the existing law to bring it into line with contemporary values and concepts, sometimes in introducing a new law to regulate areas that were previous unregulated. Sometimes the solution comes from within the relevant jurisdiction – namely, the solution is local in nature, and sometimes it comes from outside the relevant jurisdiction – namely, the solution is borrowed or adapted from other jurisdictions.
In some cases, the focus of law reform is to make the law more coherent, and the solution lies in the codification or restatement of law (for a discussion about restatements of law, see China Business Law Journal volume 11, issue 9: Restatements).
Where law reform identifies a good solution, it is still necessary to consider how the law reform should be implemented. This requires commitment and resources on the part of the government and the legislature. The greater the scope of the proposed law reform, the more time and effort is likely to be required in order to implement it. In some cases, the proposed law reform is technical and uncontroversial. In other cases, the proposed law reform is controversial and needs to be communicated and explained to the community, and, where applicable, validated through the election process.
Most jurisdictions have specialist bodies that undertake the functions and responsibilities of law reform. Law reform bodies can take different forms, including commissions that are established by statute and committees that are established by departments of government, such as the department that is responsible for justice or legal affairs. In many cases, the law reform bodies enjoy a degree of independence, either in terms of their organisational structure, or in terms of the basis on which their members are appointed.
In most cases, the functions of law reform bodies are limited to undertaking research and recommending changes. They do not have the power to implement changes, and they do not have investigatory powers (by way of comparison, consider the functions and powers of royal commissions in common law jurisdictions as discussed in China Business Law Journal volume 10, issue 5: Commissions of inquiry).
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A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew Godwin is currently on secondment to the ALRC as Special Counsel to assist with its inquiry into corporations and financial services regulation. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia.com