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Hard cases and bad law?

Divorce laws should not be made by the grotesquely rich | Catherine Bennett | Comment is free | The Observer.

Pace Catherine Dorothea Bennett, Oxford grad., former Baroness Sackville and current squeeze of by-no-means-short-of-a-bob-or-two John Humphreys, laws are not made by those who are ("grotesquely" or otherwise) rich. In England & Wales they are made by the judges or Parliament. In the former case, highly experienced ex-advocates adjudicate real-life situations, setting binding precedents. In the latter case ex-postmen and PR men adjudicate the outcome of future situations based on their sick imaginings and/or grotesque political views. Give me judges and reality any day.

As this case illustrates, judge-made law evolves as society changes. At law school I was taught that pre-nuptial agreements were void ab initio as being contrary to public policy, which favoured the institution of marriage. That is now no longer true. While some of us may regret it, our society no longer regards marriage as so important. More than half Britain's children are born out of wedlock, after all. The Common Law of England is quietly doing its stuff as it has, reliably, for centuries. This flexibility, Ms Bennett dismisses haughtily:-

It is ... ancient tradition for the law never to be decided quite firmly enough that ... rich misers and resentful spouses cannot challenge it in future, which ensures that lowlier divorcing couples can never receive clear advice from their lawyers.

Judge-made law gave England & Wales one of the best (and certainly the most flexible) legal systems in the world. If ever you find an English law stupid, enquire further. You will usually find it originated in Parliament, not the courts. As a law student, I once asked Lord Denning if it was right, in a democracy, that he - an unelected judge - had had such an influence on English Law. He replied jokingly "Given the quality of the members of the House of Commons, young man, I think you are better off with me." He had a point. Democracy is the least bad way yet implemented of choosing men and women to administer the affairs of the state but does not guarantee the quality of legislators. English judges gave you equality before the law, habeas corpus and innocence until proven guilty.  Parliament gave you control orders.

Ms Bennett seems anyway far more exercised by the amounts at stake than the principle under discussion. Perhaps it's envy? Perhaps the amount at stake when she divorced the 7th Baron Sackville was not as much as she could have wished?

Of course it is an ancient tradition that English divorce law should be decided by cases brought by impossibly rich misers or their resentful spouses.

It's true of course that the judges more often adjudicate on the troubles of the rich. That doesn't make the precedents less useful. In fact, let me put this in terms our Dorothea might approve of; the rich pay a kind of "progressive" taxation whereby the money they spend on litigation benefits the little people. Arguably, it was the first such taxation in our history.

The thrust (if not the tone) of her point, when she finally gets to it after tedious paragraphs of envy-fuelled ad hominem (and gossipy trivia more worthy of Hello than The Observer) is not as bad as one might fear;

...if the Radmacher precedent saves just a few spouses from archaic laws and modern lawyers at the same time that it propels ex-trophy wives into gainful employment, the eponymous divorcee probably deserves her triumph. If nervous couples are thereby nudged up the aisle, the Church of England might also find itself indebted...

Quite. And can I just add that the only person (apart from the Supreme Court judges and my learned friends on both sides) who comes out of the Radmacher case with honour is the lady's wise father. Without his stern defence of her interests when she was "head over heels" in love, there would have been no pre-nup to uphold. Well done, sir.