Dickerson, Reed

English

Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana UniversityDigital Repository @ Maurer LawArticles by Maurer Faculty Faculty Scholarship1979Book Review. Dale, William, Legislative Drafting: ANew ApproachReed DickersonIndiana University School of LawFollow this and additional works at: http://www.repository.law.indiana.edu/facpubPart of the Legal Writing and Research Commons, and the Legislation CommonsThis Book Review is brought to you for free and open access by the FacultyScholarship at Digital Repository @ Maurer Law. It has been accepted forinclusion in Articles by Maurer Faculty by an authorized administrator ofDigital Repository @ Maurer Law. For more information, please contactwattn@indiana.edu.Recommended CitationDickerson, Reed, "Book Review. Dale, William, Legislative Drafting: A New Approach" (1979). Articles by Maurer Faculty. Paper 1528.http://www.repository.law.indiana.edu/facpub/1528McGILL LAW JOURNALLegislative Drafting. A New Approach. By Sir William Dale. London:Butterworths, 1977. Pp. xix, 341.It is hard for an American to evaluate a book that criticizes thedrafting of statutes in the United Kingdom on the basis of "thecontinental system" as exemplified by France, Germany, and Sweden.Being unfamiliar with the latter and only generally familiar withthe former, I can only comment on the author's analysis and re-commendations in the light of American experience.Legislative tradition being what it is, the title of the book giveslittle hint that the author is focusing on much-neglected aspectsof legislative drafting, such as the allocation of drafting functions,the deployment of personnel, and the procedures that interlink them,while giving minimal attention to the materials usually found inbooks on "legislative drafting". Persons interested in the specifies ofwhat a legislative draftsman should put into a statute must lookelsewhere. Since almost two-thirds of the book is devoted to ex-tended statutory quotations and much of the material in the re-mainder is of only marginal relevance, Sir William has little op-portunity for more than sweeping generalization. However, someof his generalizations are well worth pondering. The legal pro-fession is indebted to him for delving into an aspect of legislativedrafting that is known to few and only rarely written about': theorganizational and procedural context in which legislative draftingtakes place.Sir William's main complaint against English statutes is thatthey are hard to read and understand. To provide examples, hequotes extensively from copyright laws, family laws, labour laws,limitation of actions laws, and several other kinds. Unfortunately,the typical reader, like this reviewer, is unlikely to rise to thechallenge of verifying their total usefulness, because Sir Williamhas burdened him with excessively protracted examples. (I wouldhave preferred fuller drafting principle and more persuasive re-commendations.) Even so, the reader seems justified in concludingthat the persons who put together statutes in the United Kingdomand elsewhere would do well to emulate some of the practicestypical of France, Germany, and Sweden.'E.g., Dickerson (ed.), Professionalizing Legislative Drafting - The FederalExperience (1973).[Vol. 25BOOK REVIEWS - LIVRES NOUVEAUXSir William is at his best when tracking down deficiencies inEnglish statutes, the most important of which seem to be thefollowing:(1) a general lack of clarity;(2) the failure to disclose at the beginning of a statute its basicthrust;(3) the needless introduction of qualifications and conditionsbefore a general rule is stated;(4) the inclusion of unnecessary words and other extraneousmatter;(5) excessively long and involved sections;(6) too many definitions and too much reliance on them or on"interpretation" clauses;(7) too many provisos;(8) too many and too much reliance on schedules;(9) unnecessary repetition;(10) unnecessarily convoluted or otherwise bad arrangement;(11) too much incorporation by reference; and(12) too much cross-referencing.In his opinion, the United Kingdom's trouble is largely attributableto "a system under which the drafting is entrusted to specialist tech-nicians", which tends "to produce texts of growing legal technicality,complexity, and length". This calls for a "change of style"Y Thecontinental style of codification is a good way to accomplish this,because it helps to extricate statutes from "the matrix of thecommon law",4 thus making way for a more felicitous style anda more accessible arrangement.5 "A more profound change is alsodesirable: a determination to seek the principle, to express it, andto follow up with such detail, illuminating and not obscuring theprinciple, as the circumstances require.""If Sir William's evaluation of English statutes is correct (andfrom the evidence he has assembled I have no cause to deny it),much of what he says makes good sense. At least, it fits with whatProfessor Mellinkoff and others have concluded about legal gobble-dygook: that most of it is an unnecessary -hangover from times (1)2p. 333.3Ibid.4 p. 335.5 It is not clear whether Sir William advocates not only immediate adoptionof the codification style but also ultimate adoption of a general codificationprogram: see, e. g., p. 335.G Ibid.19793McGILL LAW JOURNALwhen Old English or Middle English was being enriched to meetlegal needs by words or phrases from Norman French, Old Norse,Celtic, or Latin, many of which persist today only in the languageof the law while having usable plain-English counterparts,7 (2)when draftsmen pitted their wits against unfriendly, precedent-oriented judges who viewed statutes as unseemly encroachmentson the common law," or (3) when the language of litigated instru-ments was thought to be judicially sanctified. Certainly, the eman-cipation of statutes from these still lingering judicial prejudicesshould be aggressively sought. Another cause of legislative obscuritymay be serious inbreeding in an office that, having a monopoly onlegislative drafting, has failed to maintain a sensitive editorialpoint of view.Sir William also points out that there is more to clarity thana readable style; there is sound arrangement. It is in this respectthat English statutes seem the most deficient. First, it is hard tofind and understand core statements of what English statutes arerequiring. Such statements, of course, belong at or near the be-ginning. They should also be sufficiently self-contained that thereasonably knowledgeable reader can get their gist without turningto another statute or even to another part of the same statute.Nevertheless, English statutes, being the product of highy skilledlawyers, have a high -level of logical coherence.Sir William's laudable skill at uncovering "the mischief" is notfu.ly matched by his skill in tracing efficient causes. Of course, heis on solid ground in attributing much of bad legal style to thecommon law matrix within which English statutes still exist, and to adevotion to its conceptual structure and traditional terminology.These matters, he thinks, can be cured by switching to codification,or at least to its style.Sir William finds the English lawmaking process defective inthat "there is no examination or revision by a central body ofexperts, and there is no scrutiny by working committees of Parlia-ment";9 that is, the process lacks the "revising stage" provided inFrance, Germany, and Sweden. He prefers the continental system,in which the initial drafting is done by persons who are fullyknowledgeable in substantive policy without necessarily having the7 Mellinkoff, The Language of the Law (1963), chs. 2 and 3.8 Conard, New Ways to Write Laws (1947) 56 Yale LJ. 458. See also Dickerson,The Fundamentals of Legal Drafting (1965), 32.9 P. 335.[Vol. 25BOOK REVIEWS - LIVRES NOUVEAUXexpertise peculiar to legislative drafting. This tends to avoid"legalese" and produce clarity. How the latter is achieved he doesnot explain. Presumably, the general run of lawyer or policy expertin those continental countries is highly literate and, if untainted bylegislative drafting expertise, tends to write clearly. The approachhas certainly not worked in the United States, where writing inade-quacies lurk even in high places and where the traditional approachof lawyers (and laymen trying to write as lawyers) is to emulatethe most turgid products of the past.Sir William accordingly recommends a three-phase system: (1)initial drafting by persons other than drafting specialists; (2) revi-sion by an Advisory Law Council, independent of government, con-sisting of. judges, practitioners, a professor of law, professors ofliterature, members of consumer councils, representatives of localbodies or authorities, and a rapporteur, in consultation with minis-ters and civil servants, followed by revision by parliamentary com-mittees; and (3) debate and passage by Parliament.At this point, I lose touch. The critical step for Sir William isthe second (revisionary) phase, during which the ideal of cleardrafting, launched during the first phase, would be consummated.Somehow during this second phase, the special legislative draftingskills needed for adequate legislation but withheld during the firstphase would be supplied. How? "The Law Council should possesssufficient expertise, and authority, and be sufficiently catholic inits composition, to command attention, respect and confidence."'Here, Sir William begs the question by taking, for granted theexistence, ready availability, and particular contributions of personswhose technical expertise is needed for adequate legislation. Whatis this expertise, who has it, and when and how is it to be intro-duced? General olarity is introduced in the first phase by personsfreed of the common law tradition. But is this all? Beyond it, I findonly a vacuum.On the one hand, Sir William concedes that legislative "expertsof ... high but specialised skills [that is, trained draftsmen]" canproduce "a general consistency of method and style"," and thatthey have "unique command of the needed skills".2 In other words,these legislative experts, who are to be omitted during the firstphase, can do something that is needed for adequate legislation, and10 P. 336.11 P. 337.12 P. 338 [emphasis added].1979]McGILL LAW JOURNALonly they can do it. I fail to see how a Law Council constituted asSir William would constitute it would or could provide the necessaryingredient. Of course, it is possible that I have underestimated therank and file of English judges, practitioners, professors, and re-presentatives. In the United States, such groups have amply exhibit-ed their drafting inadequacies.On the other hand, Sir William says that maybe the English donot need specialized draftsmen after all. They can return the res-ponsibility for legislative drafting to the ministries "so long asthere is a Law Council to maintain consistency and the requiredstandards". 3 What specific standards are these?But if drafting "experts of this kind, of high but specialisedskills, scientists in their field, tend like most scientists to developan esoteric language and method, understood by the initiated, butobscure to the many",14 what assurance is there that drafting in theministries will not fall into the hands of non-legislative scientificspecialists who will inject their own brands of technical jargon?What Sir William calls a "new" approach has been common practicein Washington for many years and, in its American environment, ithas been a dismal failure. Perhaps he should rest his case on hisinitial explanation, because the obfuscation process is more closelylinked to unwholesome aspects of the common law matrix (orpossible administrative inbreeding) than to dangers inherent inspecialization.I remain skeptical of the efficacy of the proposed Law Councilfor achieving the desired clarity. Although important legislation inWashington is normally reviewed in a series of rigorous examina-tions made from many points of view, these examinations remainalmost wholly substantive. Indeed, there is nothing in the presentCongressional system to guarantee that an important piece of le-gislation is drafted, reviewed, or even seen by a-person with draftingexpertise.For me, Sir William's complaints come down to this: despitehis professed admiration for its personnel and contributions tological coherence, he does not like the way the ParliamentaryCounsel's office has been drafting statutes. Even assuming that hisdissatisfaction is well founded, I see nothing relating to clarity inthe English system (which has much to commend it) that couldnot be as fully cured by reforming the office's editorial attitude with13 Ibid.14 Pp. 337-38.(Vol. 25BOOK REVIEWS - LIVRES NOUVEAUXparticiflar regard to arrangement, cross-referencing, referentialamendment, and some matters of style, without undertaking a com-prehensive codification program or transferring basic lawmakingfunctions to other agencies.In the modern world, legislative drafting specialists are in-dispensable. Indeed, I surmise that a more thorough investigationwould show that even the "continentals", in addition to being un-tainted by the common law, either have attained a higher degreeof literacy or have somehow tucked away in the various ministriesspecialists in the drafting of legal instruments who have not beenofficially recognized as such. On the other hand, Sweden's statutes,in their perpetuation of the false imperative, undesignated para-graphing, inconsistencies of expression, and unnecessary words,suggest that there is room for an even higher level of professionalism.In any event, continental statutes such as these should be evaluatedalso on the basis of other considerations than readability.For one with an American background, it is hard to believe thatany significant number of effective reviewers could be judges. Again,I may be underestimating the quality of legal talent on the con-tinent or in the United Kingdom. Even so, it would be risky to im-port an apparently successful foreign program without ascertain-ing whether the quality of personnel needed for success can beassumed to exist in the new environment. It certainly does not existin the United States.The legal professions of both countries would benefit greatlyfrom a heavy dose of formal instruction in legal drafting. The gapis not filled by Sir William's bland assumption that all it takes tomake a good draftsman is the general ability to write clearly andknowledge of "the facts and the law on the subject".15 That such aperson "can pick up legislative drafting without difficulty""' is con-tradicted at least by American experience, which supports a mini-mum training period of several years. What Sir William seems tooverlook is that many legislative drafting problems transcend styleand readability and even'knowledge of the substantive law and thefacts.It is also possible that sending bills to parliamentary coniit-tees before (instead of after) initial consideration by the House ofCommons would make possible fuller review before the bills legis-latively congeal.15 P. 339.1 Ibid.19791McGILL LAW JOURNALSir William is careful not to identify the "continental system"with the avoidance of legislative detail, inasmuch as detail is com-mon in at least the German brand of code. Accordingly, he does notrecommend that the English necessarily eschew it. On the otherhand, some critics of English legislation have viewed this as afeasible alternative, lured by the undeniable fact that a com-plicated statute is harder to read than a less complicated one.When testifying before the Renton Committee, I was asked if Ifavored the "contiental" system of sticking to generalities. I saidthat the matter is normally beyond the control of the draftsmanand that, in the United States at least, the outcome is determinedin each case, not by broad political theory, but by how far thelegislature is willing in the particular circumstances to trust thejudgment and good faith of the administrator or the courts. Un-fortunately, in the United States this trust is highly tentative. Evenacts that begin their lives as broad mandates tend to become deeplyscarred or heavily cluttered with detailed amendments. The mainroad to clearer statutes probably hes elsewhere.Sir William's comments on statutory interpretation seem tooverstate the legislative draftsman's appropriate concern with thatarea, much of which deals with the pathology of badly draftedstatutes and is therefore irrelevant to drafting principles whoseapplication obviates the need for curative interpretation. Also, Idoubt that a "change in the style of statutory drafting is likely torequire an overhaul of accepted rules of interpretation"," evenassuming that "style" includes the avoidance of detail. His assertionseems valid only so far as "statutory interpretation" is stretchedbeyond the courts' cognitive function to include delegated legisla-tion by them. But supplementation is hardly explication; eventhough avoidance of legislative detail normally entails judicial (oradministrative) supplementation, Sir William's statement remainsmisleading. So far as interpretative principles relate to cognition,the draftsman's interest is confined largely to areas in which thecourts have been unfriendly under the doctrine of "strict construc-tion".18His analysis also suggests that the only effective escape fromEnglish judges' alleged literalism in the interpretation of statutesis to adopt, in each case, " 'a construction which would promote the17 p. 292.18 See Dickerson, The Interpretation and Application of Statutes (1975), 8and 205-12.[Vol. 25BOOK REVIEWS - LIVRES NOUVEAUXgeneral legislative purpose' ",9 coupled with compliance with LordScarman's recent plea that the "judge must be given a muchwider discretion than he has now in the choice of evidence fromwhich to infer the intention of Parliament",2 which in Sir Wiliam'sview includes resort to "Parliamentary material". Such a choiceoverlooks a third alternative: taking account of the tempering thatlanguage normally receives at the hands of external context.21 Iro-nically, resort to parliamentary material, which hardly qualifies ascontext,22 tends to undermine the draftman's incentive to betterdrafting. Why strain for perfection in a legal instrument that thecourt will subordinate to the largely uncontrdlled material of le-gislative history?Despite these reservations, Sir Willian has performed a valuableservice in drawing attention to the fact that we need to know notonly what a good statute should look like but what organizationaldevices and procedures are best fitted for producing -it. May hisbook inspire further investigations in this neglected area.Reed Dickerson*'9 P. 339. Dale is apparently quoting from the U.K. Law Commission, TheInterpretation of Statutes (1969), but he gives no page reference.20 P. 340.2 1 Supra, note 18, ch. 9.2 Ibid., 138-62.* Professor of Law, Indiana University (Bloomington).1979]

Book Review. Dale, William, Legislative Drafting: A New Approach

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Book Review. Dale, William, Legislative Drafting: A New Approach

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Indiana University Bloomington Maurer School of Law