The complexity of laws is always a controversial issue. Many argue that laws are unduly complex while others assert that the complexity is unavoidable and that so-called legal language has to remain because of hallowed linguistic tradition. As with most things, the answer lies somewhere in between. Laws cannot be made to be simpler than their subject matter. The best that a legislative drafter can do is to make a law as simple as possible. There are many books respectively on the drafting of laws and the interpretation of statutes. However, these books are bulky and meant only for lawyers or law students. This book is written by a person who, after decades of drafting laws and giving legal advice, found that officials who made legislative proposals and reviewed drafts prepared by him would greatly benefit from a book that gives, in one reasonably-sized volume, the most essential written-language skills and the most frequently encountered rules of statutory interpretation. Without these skills, it is difficult for such officials to meaningfully review drafts. Before going into these areas, he examines the pros and cons of the plain English movement and then applies a plain language approach to his content on how laws are written and should be written. In addition, there are many professionals in fields other than legislative drafting who are engaged to drafts laws. And yet knowledge of the subject matter of a proposed law does not make one fully competent to draft it. In order for such professionals to prepare respectable drafts, they need general legislative drafting skills. This volume contains the basic skills necessary for any professional in a substantive subject matter to be better able to write legislation in that area. It will also help any member of the public who has to pay for legal advice on certain simple matters which he could figure out for himself if only he knew some simple rules applied in the

How Laws are Written and Applied

By Bilika H. Simamba

AuthorHouse

Copyright © 2010 Bilika H. Simamba
All right reserved.
ISBN: 978-1-4490-7543-9

Contents

Cases Cited...............................................................xiLegislation Cited.........................................................xvForeword..................................................................xxiiiPreface...................................................................xxvAcknowledgements..........................................................xxixChapter 1 General Introduction............................................11.1 Criticisms of legislative language....................................11.2 How did legislation become so complex?................................11.3 Can legislation be simplified?........................................31.4 The plain English movement............................................91.5 The purpose of this publication.......................................12Chapter 2 Drafting of Laws................................................152.1 Introduction..........................................................152.2 The legislative sentence: George Coode's analysis.....................172.3 Amendments............................................................192.4 Avoiding ambiguity....................................................302.5 General linguistic and other points...................................772.6 Structural check......................................................94Chapter 3 Interpretation of Statutes......................................1053.1 Introduction..........................................................1053.2 Supremacy of Parliament and of the constitution.......................1073.3 Rules of statutory interpretation.....................................1113.4 Contradictions among rules of interpretation..........................118Chapter 4 Final Thought...................................................149Bibliography..............................................................151Further Reading...........................................................153Index.....................................................................157

Chapter One

General Introduction

1.1 Criticisms of legislative language

If you think that legislative language is too difficult to understand, you are in good company. Some of its sharpest critics are judges. A judge once said, in effect, about a statute that was before him, that if the intention of the drafter was to absolutely confuse and bamboozle anyone who read it, that aim had been achieved. Extreme criticisms, however, are rare and I will address the issue further in this chapter.

Generally speaking, many criticisms of legislative language (and legal language in general) are valid. Whereas popular language in general continues to evolve, legislative language seems always to lag behind. Words and expressions that have long been abandoned in ordinary speech and even in some formal writing live on in legislative circles and in written laws. As a result, some of that language becomes known as legal language when it is nothing but old or convoluted English.

1.2 How did legislation become so complex?

In England legislation was not always drafted in English. It was drafted in Latin for a while then in Norman French. Thereafter the era of drafting laws in English followed. This shift contributed to the verbosity of legislative language. When laws were drafted in Norman French, precedents of laws drafted in Latin were used. During those years a drafter often had to decide whether a word or concept in Latin had an exact equivalent in Norman French. If he was not sure, out of abundance of caution, he used two or three words in Norman French. Similar considerations applied when the transition to English drafting occurred. A drafter had to decide if a word in English sufficiently captured a concept used in Latin, Norman French or both. However, history is only part of the problem: The fact that lawyers were paid by the number of words they used played more than just a small part in this approach.

Today we do not have to deal with legal concepts in Norman French. We have to deal with some Latin but nowhere near the amount of Norman French that lawyers in those days had to deal with. Indeed, Latin is being phased out as lawyers, legislative drafters in particular, prefer to use English terms where there is an exact equivalent. Regarding verbosity, even today it is not entirely unknown that a lawyer will produce a voluminous document for reasons related more to the size of the bill than to the needs of the client.

And yet all these reasons are a very small part of the reason why laws are complex. Where a particular provision has been used for decades or even centuries and has been found to work, lawyers will continue to use it even if the language later appears dated. This is more so where there are court cases that have held the provision to have a particular meaning. Such provisions acquire a kind of respectable antiquity and lawyers therefore feel that they can change them only at their own peril. Even if they were inclined to modernize a provision, the time it would take to research the full legal effect of that provision and ensure that any change does not result in substantive deviation from the meaning of the precedent is often considered to be unnecessary. Even that is not the whole story.

1.3 Can legislation be simplified?

Few people outside the legislative drafting profession understand what is involved in the drafting of laws. People will be heard to say that drafters put legislative proposals into "legal language". A draft is sometimes put before the drafter so that he can put it on "firmer legal footing" or the drafter who is presented with a draft is asked to raise only "drafting points". Such statements reveal an insufficient appreciation of what drafting involves and the factors that affect complexity of legislation. What is more, the term "drafter" does not help for it underplays the legal advice role and other challenges that come with the function of Legislative Counsel.

The first thing to understand about the complexity or otherwise of legislation is that drafting of a law is inextricably bound with the concepts involved. Before putting pen to paper, the sponsors of legislation have to conceptualize their proposals in detail. Then the drafter has to try and gain a deep understanding of the proposals. Almost invariably in this process, he will need clarifications on various points. And as a result of his inquiries, even good proposals may require refinement. Sometimes he may identify flaws that require comprehensive review of the proposals or, in some cases, abandonment of the proposed legislation. For a drafter who already has the requisite drafting skills, conceptualizing can be a more difficult task than actual drafting.

Not all laws can be simplified to a level where every reasonably educated person, let alone every person, can understand them. A matter can only be simplified to the extent allowable by its subject matter. Thus it has been said that: "Some statutes are, indeed, frightfully complicated, but it is not the draftsman who made them so. Laws must sometimes be enacted to deal with very complex situations and obviously no one can understand the Statute unless he understands those situations." Certain subjects relating to wills, land, companies, contracts, taxes, accounting and scores of other issues cannot be reduced to a kind of Janet-and-John simplicity.

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