In European countries in which legislation is entirely uncontrolled by the courts, its quality is, generally speaking, higher than it is in America. This is undoubtedly the judgment of all who have had occasion to institute comparisons. Such a comparison should not have primary reference to the social, economic, or political content of laws. There may be ground for believing that our election laws, our married women acts, our juvenile court laws, and perhaps others, are more advanced than those of France or Germany, and if our social legislation may seem backward that is due to reasons which have very little to do with the problems here discussed. Nor should attention be directed merely to matters of style which, even if we give them all the importance they deserve, are after all a secondary consideration. But we should take as a standard of comparison those juristic and technical features of legislation which have special reference to the operation and administration of the law, to the safeguarding of public and private rights, and to the coordination of particular statutes with established principles of law and justice. The superiority of
Europeon legislation to our own in these respects is not seriously disputed, nor can there be much doubt as to the reasons for this superiority.
The striking difference between legislation abroad and in this country is that under every system except the American, the executive government has a practical monopoly of the legislative initiative. In consequence, the preparation of bills becomes the business of government officials responsible to ministers, and who are mainly, if not exclusively, employed in constructive legislative work. In France and Germany the government initiative of legislation has been established for a long time and the right of members to introduce bills is hedged about and practically negligible.
There are two main reasons why executive initiative should lead to a superior legislative product. The one is that it is the inevitable effect of professionalizing a function that its standards are raised. The draftsman will take a pride in his business and in course of time will become an expert in it. He learns from experience, and traditions will be formed. This, of course, presupposes that he is a permanent official. In addition he will be responsible to his chief who naturally resents drafting defects that expose him to parliamentary non-partisan criticism. In Germany the best juristic talent that goes into the government service is utilized for the preparation of legislative projects, and these are regularly accompanied by exhaustive statements of reasons which enjoy considerable authority. Drafts of important measures are almost invariably published long before they go to the legislature in order to receive the widest criticism, and as the result of criticism are often revised and sometimes entirely withdrawn. The individual author often remains unknown and the credit of the Government stands behind the work.
The second reason is that when the Government introduces a bill the parliamentary debate is somewhat in the nature of an adversary procedure or at least there is, as it were, a petitioner and a judge. The minister or his representative (in Germany and France the experts appear in parliament as commissioners, while in England only parliamentary secretaries may speak, - much to the disadvantage of the English debate) has to defend the measure against criticism, and legal imperfections or inequities would be legitimate grounds of attack. The liability to criticism insures proper care in advance. Together with the executive initiative goes a practical limitation of the number of bills introduced, an increased relative importance of each measure and proportionately greater attention bestowed on it. Where this form of legislative preparation and procedure has been observed it is not necessary to seek further reasons for a good quality of the product.
The connection between executive initiative and the professionalizing of the work of drafting bills is shown by Sir Courtenay Ilbert in his work on the Mechanics of Law Making (ch. 4). Until 1832 even very important measures were private members' acts. From that time on the leading bills originated more and more with the Government, the duty of preparation devolving at first in the main on the Home Secretary and later on the Treasury. The responsible ministers found it necessary from the beginning to appoint men to take charge of the work. Thus we find from 1837 on a succession of draftsmen, and it is an interesting fact that the post from that time on has been held by only six men, Sir Courtenay Ilbert himself having served as Parliamentary Counsel of the Treasury (the title of the office) until he became clerk of the House of Commons. This shows that the work was always treated as non-partisan and was sufficiently attractive to become the life work of able and distinguished men. The result is primarily apparent in improved form of legislation, but if conclusions may be drawn from a necessarily casual and inexhaustive study of modern English statutes, there has also been an improvement in the standardization of substantive and administrative provisions. If so much has been accomplished through the efforts and the influence of a few individuals, it can be readily imagined how much the cause of scientific legislation must have gained by a century of work carried on in French and German government departments by men highly trained, thoroughly expert in their respective fields, and held to exacting standards by official discipline and tradition. The legislative product under such conditions will be largely of the same high caliber as the judicial product has been under the English system of concentration in the hands of a few high-grade judges.