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labours, and the various provincial governments have been guided by the decision of the heads of their departments.

It would serve no useful purpose to revive past controversies, but perhaps you will permit me to make one or two observations with regard to Condition No. 17. The Commissioners on Uniformity of Legislation proposed to do away with arbitration, which was considered to be a cumbersome mode of settling disputes, and to substitute appraisement. Appraisement had already been adopted in the American standard policy; it was introduced into the hail insurance conditions of Saskatchewan in 1917, and it has a place in the automobile conditions of Ontario.

The change to appraisement met with general approval, and in all the discussions over Condition No. 17, I do not remember to have heard a voice raised at any time in favour of returning to arbitration, nor do I now know on what grounds this was done. The whole contest was over the proposal of the Commissioners to require that in case property destroyed or damaged was insured in more than one company, the companies concerned should agree upon a single appraiser and that the questions in issue should be decided as between all the companies and the insured.

The labours of the Commissioners were more successful in the sphere of life insurance. In 1921, Mr. V. Evan Gray, Superintendent of Insurance for Ontario, laid before the Conference at Ottawa, a draft bill, which was the result of the collaboration of various counsel and experts representing the Government of Ontario, the life insurance companies and fraternal societies and other persons interested. This bill was taken up and discussed clause by clause. There were present, taking part in the discussion, a number of gentlemen, including Mr. A. M. Dymond, K.C., Legislative Counsel for Ontario; Mr. F. L. Monk, Superintendent of Insurance for Quebec; Mr. H. J. Sims, K.C., for the Canadian Life Officers Association; Mr. F. G. Dunham, Attorney for the Life Insurance Presidents of the United States; Mr. Lyman Lee, Mr. W. F. Montague, and Mr. V. A. Sinclair, K.C., representing the Canadian Fraternal Association, the Canadian Order of Chosen Friends, and the Canadian Order of Foresters; and Mr. G. D. Finlayson, Dominion Superintendent of Insurance.

After giving the whole day to this measure the committee rose and reported the draft, with various suggestions that had been made, and the draft was then referred to a committee which was instructed to report in 1922. That year, in Vancouver, the greater part of five days was given to the consideration of the bill, and in 1923,, four

days more were devoted to it, after which it was finally approved. The bill, as approved, has now been placed upon the statute books of Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Prince Edward Island, and Saskatchewan.

Here, again, it will be seen that the procedure of the Commissioners was deliberate and thorough-going. Pains were taken to obtain all possible light upon every phase of the subject, and to ensure that no detail should be allowed to pass without exhaustive discussion. The result is a measure which ought to give satisfaction and should not require amendment or serious alteration for some years.

Provincial legislation now covers the whole field of insurance other than marine insurance. It is not only comprehensive in scope but it has been worked out with thoroughness and drawn with care. Further, a high degree of uniformity has been achieved and the wide. divergencies in form and substance, which were a cause of complaint by the mercantile world ten years ago, have, to a large extent, disappeared. As the world moves on and the business of insurance develops new features, existing legislation will need revision, but a continuation of the spirit of co-operation between the provinces, which has hitherto been so fruitful of good results, will enable their Legislatures to adopt measures which will be advantageous to the public, as well as creditable to the statute books. And I am sure I may say that should the assistance of the Commissioners on Uniformity of Legislation be at any time required, it will be cheerfully afforded.

Regina.

R. W. SHANNON.

THE ABUSE OF LAW.1

Perhaps the most significant change in legal thought during this generation has been the more general realization that law is made by man to serve human interests, and can and should be changed as those interests change. The old theory of natural rights, the notion that there exist immutable principles of justice which may be discovered but cannot be made, have given way to the more modern conception that law is a device for social control, and should be moulded to suit present day needs. This change is not only reflected in the decisions of courts, the writings of jurists and social scientists, but also in the platforms of political parties, and in the propaganda of all varieties of social reformers.

While this change in attitude towards the nature and function of law has made possible many desirable reforms, it has also given an impetus to law making which has created new dangers. A prodigious number of laws, touching nearly every aspect of life, have been passed. The flood of legislation has become so great that it is impracticable for even the lawyer to keep abreast of the statutes which are annually enacted. In many instances these laws have been hastily drawn, in disregard of the principles of draftsmanship, thereby causing uncertainty as to their meaning and effect. Due regard has not always been given to the feasibility of enforcing or administering a particular statute, resulting in an increasing non-observance or positive disregard of law. Frequently the futile attempt has been made to control by local law a national situation. On the other hand, Federal laws have been enacted which dealt with matters of local concern. Moreover, the propriety of regulating by law certain phases of human action has, at times, been little considered, and the law has been made the ally of intolerance and bigotry.

When we speak of social control, we ordinarily mean a restraint upon the liberty of one individual for the protection of some interest or another, which interest is believed to outweigh in social value the detriment which may result from the curtailment of the other's freedom of action. The values which we place upon conflicting interests necessarily vary with the extent and intensity of particular human desires, the conditions under which we live, and the prevailing beliefs as to what does and what does not inure to our well being.

Our desires we know; our environment may be discovered; but what will promote our well being must, at best, remain a prophecy based upon past experience. When we consider that existing pre

1Address delivered at the opening exercises of Columbia University, September 23, 1925.

cepts of morality and present social conventions are to a very large extent the crystallized judgments of many generations as to what inures to man's well being, we should proceed with the greatest caution in casting them aside.

The justification of a new law on the ground of social utility presumes the accomplishment of its purpose. Assuming that the evaluation of the conflicting interests is correct, if the law is ineffective to accomplish the desired result, the invasion of individual liberty which it costs is obviously a bad investment. Moreover, there may be devices for social control, other than law, which are better adapted to the accomplishment of a particular result, and which are less costly in their operation. Therefore, the matter of social legislation presents a three-sided problem. First, does the protection of a particular interest justify the interference with other interests necessary to the accomplishment of the desired result? Second, will the proposed law prove effective to accomplish its purpose? Third, is there a better way of accomplishing the result?

The chief danger from the new conception of law is that it makes easier the adoption of unsound as well as sound theories of social reform. It has already become the chief weapon of the fanatic as well as of the more intelligent student of social problems. There are many agitators in our midst who have been seized with a desire to compel all human beings to conform to a type, whether it be fundamentalist, teetotaler, or one hundred per cent. American. This will to standardize man has been justified on the grounds of efficiency, humanity, patriotism, and religion. It has encouraged a spirit of intolerance among large portions of the population, and a strong desire to persecute the nonconformist has been manifested.

During the past summer the country was aroused by the trial and convicion of a school teacher for teaching a biological theory which is generally accepted by men of science throughout the world. Many people who had paid little heed to the tendencies in American life which culminated in the anti-evolution law were suddenly shocked into a realization that our most cherished liberties are at stake. But the anti-evolution law of Tennessee is but a manifestation of the same state of mind which brought forth the Lusk law of New York, and similar statutes which were enacted in different parts of the country.

It is true that law is a device for social control, but it is a mistake to assume that all forms of human behaviour should or may be controlled by law. There are many matters as to which most people are unwilling to submit to governmental control. The restrictions upon the power of the government found in the Constitution of the United States and the constitutions of the several states afford ample

evidence of this fact. The privilege of expressing one's views, or choosing one's vocation, or one's place of abode; the privilege of selecting one's spouse, or one's religion, are examples of matters concerning which people resent dictation by the state. Indeed, if inventiveness in man is to be encouraged, if originality and new ideas are to be fostered, it is essential that there be a large sphere of activity within which the individual is left free and unhampered to follow his own bent. The occasional harm which may result from thus indulging the individual is the price which society must pay for genius, for character, and for progress. It was with the view of preserving for the individual this domain of free choice, even as against the will of majorities, that many of the constitutional provisions were adopted. While it lies within the power of the states, by constitutional amendment, to further limit this important field of human activity, such action should be taken with the greatest caution and only after it is clear beyond doubt that a settled public judgment demands it. This great domain of free choice is a priceless heritage from the centuries of struggle and suffering which have gone before. It should not be lightly sacrificed for novel and untried theories of social reform.

There is also a vast domain of human action concerning the regulation of which the Federal and state constitutions are silent. It follows, of course, that within this domain the state legislature is supreme. It can legally pass unwise as well as wise laws. But it does not follow from the fact that the freedom of the individual in a particular field of conduct is not protected by constitutional provision, that his action should be governed by positive law. There are many restraints upon human conduct other than the restraints of positive law. Morals and manners would not exist if this were not so. Indeed, human behaviour is controlled to a far greater extent by these non-legal restraints than by the restraints of positive law. If the students of social psychology are to be believed, people are influenced more by the conventions of society than by the prohibitions of the penal code. If the penal code of New York were repealed tomorrow, I doubt whether many, if any, of you would commit murder or robbery or any of those offences against which there exist generally accepted inhibitions of morality. On the other hand, the prohibitions of the Volstead Act have had little effect upon the habits and practices of, perhaps, millions of American people.

The penal code is necessary in order to deal effectively with the anti-social creatures who live in our midst, but they constitute a very small part of the total population. While law is the most effective device for controlling such individuals, it is an error to assume that the habits and practices of people generally may be altered at the

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