Legal Functions: Mediation and Adjustment

Calibrating the law to fit current social circumstances is, in a common law context, generally more a matter for judicial than legislative initiative and is thus highly dependant upon a continuous flow of litigation. Even then the capacity of the judiciary to shape the application of the law is hedged around with many constraints including the realities of an essentially adjudicative process, wariness of straying into social policy (judicially considered to be the responsibility of government), and the dictates of precedent. In many common law jurisdictions, however, for some decades the possibility of any such judicial action has been foreclosed by the absence of the necessary case flow.

This chapter deals with the common law capacity to re-interpret principles and precedents in the light of changing social circumstances. It considers the origins of the mediation/adjustment function, how charity law can be adjusted to address changes in the pattern of contemporary need (e.g. broadening the definition of ‘poverty’) and how charities can be facilitated to become active mediators in the change process (e.g. assisting the unemployed into employment). It notes the provision of alternative legal forms (unincorporated associations, trusts, companies) and the spread of forums for mediation and arbitration (High Court; Charity Commission; Inland Revenue; Companies Registry Office; and Rates office etc.). It focuses on the Charity Commissioners’ development and deployment of the mediation/adjustment function. It explains the role of cy-près when objects cannot be satisfied and gifts must be saved. The chapter concludes by assessing the outcome of the charity law reform process in England & Wales and the implications arising for the future of the mediation/adjustment function and related social policy issues.