How Laws are Written and Applied
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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 such provisions 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.
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About the Book
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 interpretation of statutes.
About the Author
Bilika H. Simamba has drafted legislation full-time for over two decades in the British Commonwealth. He has also been a long-term and short-term consultant to various international organisations. His articles on legislative drafting and in selected areas of substantive law have appeared in leading journals such as the Statute Law Review, Commonwealth Law Bulletin and South African Law Journal. Mr. Simamba has also taught legal drafting in Europe.