LEGISLATIVE DRAFTING: PRINCIPLES AND MATERIALS

LEGISLATIVE DRAFTING:

PRINCIPLES AND MATERIALS

Copyright ? Mark Evan Segal, Esquire July 2011

LEGISLATIVE DRAFTING

PRINCIPLES AND MATERIALS

PROLOGUE:

These principles and materials cover three distinct yet closely related aspects of preparing sound legislation.

Principles I ? III address Substantive Soundness. This refers to the legal content of legislation, and how well it meets its objectives.

Principles IV ? XVI address Technical Soundness. This refers to organisation, structure, format, and drafting issues.

Principles XVII ? XVIII address Procedural Soundness. This refers to the manner in which legislation is drafted.

Clearly, these three requirements are intricately linked. Legislative drafting is the process whereby legislators try to get both the substance and the format right. Technical errors compromise substantive work, substantive errors turn technical work into an exercise of frustration, and shortsighted procedures undermine everything.

Just as a chain is only as strong as its weakest link, legislation must meet the requirements of Substantive Soundness, Technical Soundness, and Procedural Soundness.

ABOUT THE AUTHOR

Mark Segal is a lawyer originally from Philadelphia, Pennsylvania, who has been an international legal consultant for the past eighteen years. During this time, he has worked and lived in Central and Eastern Europe, the Baltic States, the Balkans, the Caucuses, Russia, Central Asia, Asia, the Middle East, Africa, and Latin America. He has been involved in a large number of legal, judicial, and legislative reform projects, including senior positions, on behalf of different international organisations and donors. He works with parliaments, ministries, courts, non-governmental organisations, and training institutions. This work covers rule of law issues, legal reform, judicial reform, court administration, legislative drafting, institution building, capacity development, monitoring and evaluation, and raising professional qualifications.

Legislative Drafting: Principles and Materials ? by Mark Segal

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LEGISLATIVE DRAFTING - PRINCIPLES AND MATERIALS

TABLE OF CONTENTS

Page

Introduction: Words of Wisdom Concerning Clear Writing

3

I. The Legislative Process Should Start With Setting Objectives and Establishing Policy 5

II. Legislation Should Be Harmonised with National and International Legal Requirements 24

III. Legislation Should Be Practical and Effective

40

IV. Legislation Should Be Normative, Not Aspirational

57

V. Legislation Should Establish Appropriate Sanctions

66

VI. Legislation Should Be Technically Sound/Correctly Structured

70

VII. Legislation Should Be Technically Sound/Well Drafted

82

VIII. Legislative Drafting Should Reflect the Type of Act and Intended Audience

85

IX. Legal Clarity Should Be Promoted Through Sound Sentence Structure

87

X. Legal Clarity Should Be Promoted Through Sound Word Choice

89

XI. The Repeal or Amendment of Existing Legislation Must be Precise

97

XII. Definitions Should Be Correctly Used

99

XIII. Negative Formulations Should Be Avoided

101

XIV. Legislation Should Be Gender Neutral

102

XV. References Should Be Accurately Drafted

105

XVI. Legal Drafting and Terminology Should Respect Linguistic Differences

107

XVII. The Legal Profession Should Be Fully Engaged in Legislative Drafting

109

XVIII. The Legislative Drafting Process Should Be Open and Participatory

118

Appendix One: Supplemental Legislative Drafting Examples and Exercises

137

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INTRODUCTION TO LEGISLATIVE DRAFTING

Words of Wisdom Concerning Clear Writing

Before looking at specific principles concerning legislative drafting, it is helpful to take a look at some comments from prominent personalities concerning laws, writing, and clarity.

1) "A law should be clear, precise, and unambiguous ? interpreting it means allowing distortions". Napoleon Bonaparte

2) "A man who uses a great many words to express his meaning is like a bad marksman who, instead of aiming a single stone at an object, takes up a handful and throws, hoping he may hit." Samuel Johnson

3) "Whenever we can make 25 words do the work of 50, we halve the area in which looseness and disorganisation can flourish." Wilson Follett

4) "The most valuable of all talents is that of never using two words when one will do." Thomas Jefferson

5) "A sentence should contain no unnecessary words, and a paragraph no unnecessary sentences, for the same reason that a machine should have no unnecessary parts." William Strunk

6) "My aim is to make things as simple as possible, but not simpler than that." Albert Einstein

7) "Easy reading is damned hard writing." Nathaniel Hawthorne

8) "I am sorry this is such a long letter, but I didn't have time to write a short one." Mark Twain

9) "Simplicity is the ultimate sophistication." Leonardo da Vinci

10) "If you can't explain something simply, you don't understand it well." Albert Einstein

11) "Genius is the ability to reduce the complicated to the simple." C. W. Ceram

12) "The ability to simplify means to eliminate the unnecessary so that the necessary may speak." Hans Hofman

13) "The chief virtue that language can have is clearness, and nothing detracts from it so much as the use of unfamiliar words." Hippocrates

14) "The language of law must not be foreign to the ears of those who are to obey it." Learned Hand

15) "Broadly speaking, the short words are the best, and the old words when short are best of all." Winston Churchill"

16) The shorter and the plainer the better." Beatrix Potter

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17) "The best sentence? The shortest." Anatole France

18) "Use the smallest word that does the job." E. B. White

19) "Do not accustom yourself to use big words for little matters." Samuel Johnson

20) "Never use a foreign phrase, a scientific term or a jargon word if you can think of an everyday English equivalent." George Orwell

21) "Think like a wise man but express yourself like the common people." William Butler Yeats

22) An intellectual is a man who takes more words than necessary to tell more than he knows. Dwight D. Eisenhower

23) "I believe more in the scissors than I do in the pencil." Truman Capote

24) "Writing improves in direct ratio to the things we can keep out of it that shouldn't be there." William Zinsser

25) "Stick to the point, and cut whenever you can." W. Somerset Maugham

26) "Words, like glasses, obscure everything they do not make clear." Joseph Joubert

27) "The great enemy of clear language is insincerity. When there is a gap between one's real and one's declared aims, one turns, as it were, instinctively to long words and exhausted idioms, like a cuttlefish squirting out ink." George Orwell

28) "Writing is largely a matter of application and hard work, or writing and rewriting endlessly until you are satisfied that you have said what you want to say as clearly and simply as possible." Rachel Carson

29) "Poorly drafted statutes are a burden upon the entire state. Judges struggle to interpret and apply them, attorneys find it difficult to base any sure advice upon them, and the citizen with an earnest desire to conform is confused. Often, lack of artful drafting results in failure of the statute to achieve its desired result. At times, totally unforeseen results follow. On other occasions, defects lead directly to litigation." Albert R. Menard

30) "Law books are the largest body of poorly written literature ever created by the human race." John Lindsey

31) "There are two things wrong with legal writing. One is style. The other is content". Fred Rodell

32) "Brevity is the soul of wit". William Shakespeare

33) "I'm the Parliamentary Draftsman, I compose the county's laws, and of half the litigation, I'm undoubtedly the cause. I employ a kind of English, which is hard to understand, though the purists do not like it, all the lawyers think it's grand." J. Bridge

34) "The length of your answer should correspond to how much you know about the subject".

Professor handing out examination to students

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