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How Laws are Written and Applied
By Bilika H. Simamba
AuthorHouseCopyright © 2010 Bilika H. Simamba
All right reserved.
Chapter OneGeneral 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.
Then there is the confusion between drafting flaws and policy deficiencies. One commentator has said:
There is a tendency to regard Parliamentary Counsel as the root of all legislative evil, or at least as the source of all legislative obscurity and prolixity. In debates in Parliament one will frequently hear the drafting nominally attacked where the speaker is actually taking exception to the substance of the provision concerned.
A law may contain a provision that states that "A person facing a possible assault has an obligation to take to his heels." This may be a very bad law but is reasonably plain in drafting terms.
Also, a general criticism of drafting ability is sometimes made on the basis of an isolated and exotic case. Because many laws are quite clear, they are applied in thousands and even millions of cases without difficulty. It is usually when a rare case arises that the competence of the drafter is called into question. Unfortunately, his competence is then called into question in sometimes wholesale fashion.
The saving grace is that there is understanding from informed high places. The Renton Committee put things in the right perspective when it said:
Even in the face of such difficulties many statutes are well drafted and give no grounds for criticism in respect of clarity and simplicity; indeed some of our witnesses have praised the drafting of a number of recent Acts. Not all of the criticism we have heard in relation to particular Acts has turned out, on close examination, to be entirely valid. Nevertheless, after making due allowance, there remains cause for concern that difficulty is being encountered by the ultimate users of statutes, and this difficulty increases as the statute book continues to grow.
In addition, legislation is often drafted under very tight time constraints. Though many governments do have well developed procedures to ensure, as much as possible, that drafters have enough time to do their work properly, it is not always possible to have the ideal amount of time needed to draft legislation. And even where legislative procedures that are conducive to an efficient system exist, insufficient knowledge of those procedures or a lack of appreciation of how much time is needed to craft a good piece of legislation still pose challenges for the drafter. These problems are often exacerbated by major changes that are introduced late in the drafting process or during consideration by legislative bodies. Whether the changes are major in terms of a new key concept or a number of unrelated changes, all late changes come with a greater risk of conceptual and clerical errors.
In some cases an attempt by a drafter to make a matter clear is often met with opposition from instructing officials or legislators who for one reason or another think it unnecessary or would like to leave it deliberately vague for their own operational convenience. Then there are those who just feel more comfortable with conservative language and verbosity and those who fear that simpler expression will water down their livelihood.
Whatever detractors might say, the following continues to be true:
There is little doubt that most of the new features that are intensely disliked by linguistic conservatives will triumph in the end. But the language will not bleed to death. Nor will it seem in any way distorted once the old observances have been forgotten.
There is no shortage of prescriptions as to what we should try to achieve. The following is particularly poignant:
If a man were to ask me what I would suppose to be a perfect style of language, I would answer, that in which a man speaking to five hundred people, of all common and various capacities, idiots or lunatics expected, should be understood by them all, and in the same sense which the speaker intended to be understood.
This is certainly an ideal and yet Utopian aim. Whereas there are certain particularly simple subject matters where this can be attempted and achieved to a large degree, most legislation cannot be simplified to that level. What the drafter attempts to do is craft provisions in such a way as to make them readily understandable to the audience to which the law is addressed.
Even if one where to draft a statute that is addressed to the ordinary person and express it in language that comes close to the Utopian aim cited above, there is no guarantee that it will always be easy to apply to all circumstances. Thus it has been rightly said that:
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized.
In this regard, a drafter's role is often to draft a general rule that will apply to certain classes of situation. In so doing, the rule may be absolute or be subject to exceptions. In formulating a rule, there is either one particular kind of case being addressed or a class of cases. Some rules are relatively simple. For example, rules of procedure may provide that where a chairman is unable to attend, the vice-chairman shall chair the meeting. However, many rules are aimed at addressing situations that cannot all be individually stated.
A provision that is difficult to understand must be seen not as an inability on the part of the drafter to express himself in terms free from ambiguity, but rather as a display of his ability to foresee the many possible situations that may arise and his attempt to express himself as clearly as possible in relation to those situations, using tools that lack mathematical precision. Any other conclusion is likely to involve the absurdity that a lawyer loses much of his ability to express himself clearly when he engages in the preparation of legislation.
Thus even if a drafter were to observe all the factors that contribute to the ready conveyance of his meaning, the situations at the back of his mind which he wants to cater for may make for a complicated provision. For now we can agree that legislation is supposed to be communication. To that extent it is no different from the spoken word. In that connection it has been said that:
The final cause of speech is to get an idea as exactly as possible out of one mind into another. Its formal cause therefore is such choice and disposition of words as will achieve this end most economically.
The aim of legislation should be the same.
Quite apart from the challenges stated above, the drafter sometimes has to deal with his own habits. Even if he is dealing with clients who are amenable to change and he too is equally amenable to it, the literary legal tradition to which he was exposed as a student and later as a practitioner imbued in him certain literary habits. As a student he crammed certain words and styles day and night. If he did not specifically try to learn them, they grew on him, for much of what he read was written that way.
When trying to give a precedent a more modern rendering, he has to re-think the meaning of certain words and concepts, and then find a more current way of saying the same thing. That is why drafting legislation in plain English takes longer than to draft it in old language. Extricating oneself from an archaic way of writing is a major and on-going process.
If, therefore, a drafter is willing to write legislation that is plain, how is he to be guided? In the first place one has to use their common sense as to what would make a piece of writing easy to understand. Some of the more obvious things that improve understanding are good organization of the material, simple sentence structure and careful word choice. Today there are numerous materials published by governments and the private sector that assist or claim to assist in attempts to write in plain English.
Whereas ordinary people and even scholars have criticized the obscurity of lawyers' language for centuries, it was only in the 1970s that significant global effort was made to simplify the language of law. Until this time little or no effort was made in a concerted way to make language plain. The extent to which the language of law was remote from everyday usage is exemplified by the following short conversation in a court of law:
Judge: The charge is theft of frozen chickens. Are you the defendant?
Defendant: No, sir, I'm the guy who stole the chickens.
Then you had the traditional writ of summons which required that the person being sued "enter an appearance" at a certain court house. People where known to show up at that address. They did not need to do this as such. Simply put, they were required to file, in person or through a lawyer, a document called an appearance or a memorandum of appearance in which they were required to indicate if they intended to defend the action in whole or in part. Happily, modern court documents now spell this out in less esoteric fashion.
Few legislative drafters today will argue with the proposition that we need to draft our laws in plain English. What then is plain English? The Law Reform Commission of Victoria, Australia, has said that:
Plain English involves the use of plain, straightforward language which avoids defects and conveys its meaning as clearly and as simply as possible, without unnecessary pretension or embellishment. It is to be contrasted with convoluted, repetitive and prolix language. The adoption of a plain English style demands simply that a document be written in a style which readily conveys its message to its audience.
1.4 The plain English movement
Governments and the private sector worldwide have been responding in varying degrees to calls to use plain English. Further to what has been mentioned above, in the United States the need to use plain language in legal documents or statutes can be found in the laws of New York, Connecticut, Pennsylvania, Florida, Minnesota and California.
In Australia the government endorsed the plain English movement by introducing the Plain English and Simpler Forms Programme. This was followed by a number of departments introducing plain English initiatives. On the teaching side, in 1991 the Centre for Plain Legal Language was established at the University of Sidney. It researches and promotes the use of plain English in legal and administrative documents. An Australian who should know said in a speech delivered in 2002:
Australian lawyers have been so enthusiastic about plain language that it is almost possible to argue ... that the battle for acceptance of plain language is already won there. Certainly now, as a consultant, I am rarely asked to come to persuade law firms that plain language is safe (10 years ago I had to do regularly). Now the demand is for in-house training in plain language writing. And, interestingly, there is very little demand from law firms for consultants to come in and actually rewrite documents. The skills are already in the law firms. That seems like a healthy development ... But it is also a sign that Australian lawyers feel confident that they know what they are doing and believe they can write in plain language. Plain language drafting has been taught in Australian law schools now for a decade.
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