Saturday, April 30, 2011

Parallel - Laws as Nets; Gangrene laws

Note: some of this is also found in a Measure for Measure post (#7):

First, Shake-Speare:

"A fish hangs in the net, like a poor man's right in the law."
  Pericles 2.1.117-8

"We must not make a scarecrow of the law,
Setting it up to fear [frighten] the birds of prey,
And let it keep one shape till custom make it
Their perch, and not their terror".
  Measure For Measure 2.1.1-4

Now Bacon:
 "There are no worse snares than legal snares...they are as nets in the path".
  De Augmentis

"...purge out the multiplicity of the laws, clear the uncertainty of them, repeal those that are snaring"
Gray's Inn Revels

" new judgments avoid the former. The records reverent things, but like scarecrows".
Notes for a speech 1610

"Obsolete laws that are grown into disuse".
  De Augmentis

Obsolete laws, if not cut away from the general body of the law, "bring a gangrene, neglect, and habit of disobedience upon other wholesome laws, that are fit to be continued in practice and execution".
  Life, vi. p. 65

"For as an express statute is not regularly abrogated by disuse, it happens that from a contempt of such as are obsolete, the others also lose part of their authority, whence follows that torture of Mezentius whereby the living laws are killed in the embraces of the dead ones".
  De Augmentis

Shake-Speare again:
   "In time the rod
Becomes more mocked than feared; so our decrees,
Dead to infliction, to themselves are dead
And liberty plucks justice by the nose".
  Measure for Measure 1.3. 26-28

Bacon: "Above all things a gangrene of the law is to be avoided"     [body metaphor applied to law]
  De Augmentis (because the law being once gangrened is no longer respected.)

The same is true of the body:
    "The service of the foot
Being once gangrened, is not then respected
For what before it was"
  Coriolanus 3.1.305

"This fester'd joint cut off, the rest rests sound;          [same principle as applied to the general laws]
This let alone will all the rest confound".
  Richard II, 5.3.84-5

Cockburn comments: Thus both authors see legal obstacles as "nets". On several other occasions too Bacon describes laws as "snares" which is tantamount to calling them "nets". Both authors also see obsolete laws as "scarecrows", which like "gangrene laws" are "dead to infliction" and no longer respected. Bacon waged a long campaign for the repeal of obsolete laws, and in his speech note he meant the same as Shake-Speare, namely, that obsolete laws, however revered, in time lose their power to frighten. The "scarecrow" metaphor is a far from obvious one - in the whole of my time at the English Bar I never heard anyone describe obsolete laws as scarecrows.

Note: The reform of the law was as close to Bacon's heart as the reform of learning. He greatly admired the laws of England, saying 'the equallest in the world between prince and people', and all the richer for being 'mixed and compounded', like the English language, of the customs of so many nations. But England had been rapidly developing from a simple agrarian community into an increasingly complex mercantile society, and the law had not followed suit. There had been for over a century, wrote Bacon, a 'continual heaping of laws without digesting them', and such an accumulation of 'cross and intricate' statutes on the same subject that 'the certainty of the law was lost in the heap'. How could the citizen be made 'more and more happy' - which was 'the end and scope of laws' - when left in so much uncertainty about their application?
  Francis Bacon: The History of a Character Assassination, Nieves Mathews 1996

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