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Lang. Soc. I6, 25-48.
Printedin the United States of America
The language of legislation'
YON MALEY School of English and Linguistics Macquarie Universitv
A B STR ACT
The characteristics of the languageof legislation are derived from its role in the institutionof law. An analysis of the institutionalcontext reveals links among history, social function, participantroles, accepted goals of legislation, and language use. The natureof an Act of Parliamentas a perpetual speech act creates a frozen authoritativetext so that the language itself becomes a component of the law. If legislation is to be both stable and flexible, institutionalcommunicativestrategiesare requiredto organise linguistic means to these sociolinguistic ends. (Law, legislation. register, speech acts, communicativecompetence, communicative strategies)
The characteristicsof legislative language within the institutionsof English and English-derivedlaw need little demonstration.Its distinctive markersare easily characterisedand have been commented on by a numberof writers. The most frequentlymentioned are archaic, foreign, uncommon words (Mellinkoff I963: 1 , 1982:3); long, complex sentences with intricatepatternsof coordinationand subordination(Crystal & Davy 1969:204; Gustafsson 1975:22; Bhatia 1982:7); repetition(Danet 1980:478); passive voice (Danet 1980:479; Finegan 1982:115) - and a complete absence of colour and humanity.It is commonly agreedto be a complex, intricate, even bizarre style of language. This complexity and esotericism are odd and require explanation. Legislation is the largest and most important source of law in our society, affecting the life of the ordinarycitizen in dozens of small and large ways. Yet as an English publication, The Renton Reporton the Preparationof Legislation, points out, even professionalinterpreters of the law, the lawyers and judges, find that at times the way the law is draftedis "an impenetrablebarrierto understandingit." The Report adds: To the ordinarycitizen the provisions in the statutebook might sometimes as well be written in a foreign language for all the help he may expect to obtain there as to his rights and duties under the law. And this in an age . . . when the statute law has a growing effect on practicallyevery sphere of daily life (Renton 1975:37).
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use-based style or register (Halliday 1978:32) of English. thatthe characteristics thatmarklegislative languageas a separate style of language are the characteristicsthat prevent it from communicating efficiently to its users. that is. How can this situationhave arisen?Why is it allowed to continue? In this article I shall offer an historical and functional explanation for the presence and persistence of the criterial and characteristicforms of legislative language.and India.to the law and languageof the United States. it is part of one legal family (David & Brierley 1978:20) and. when necessary.with some qualifications in each case that cannot be pursuedhere . Canada. or legislative discourse. which is a set of communicativestrategiesencompassing what a specialised group of individuals in the exercise of their institutional roles know and do to produceappropriate and valid legislationand. THE INSTITUTIONAL SITUATION I shall assume here that the sociolegal context gives rise to a specific kind or subset of communicative competence (Hymes 1972. to some extent. Unlike many other kinds of communicativecompetence. Yet considerablesimilaritiescan be found among the membersof the family. It does. While not seeking to justify its oddities or minimise its areas of dysfunction. then. The termfamily suggests the very general nature of the similarities that these systems now share. interpretit. an insider language which is subject to special conditions of productionand 26 This content downloaded on Wed.and values thatmakes for mutualintelligibilityand communication. yet each has developed regional differences and regional loyalties.function. So those generalisations that. For functional and historical reasons. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . is a motivated. They can be likened to dialects of a language. it is a learned communicativeskill or craft which producesa craftbound discourse(Ross 198 1). attitudes. I shall attemptto show the extent to which legislative language. 1982). I have chosen both Australianand English law and textual data for discussion for two reasons:as an Australian. to some extent.apply to Anglo-Australianlaw and language apply also . still tied.YON MALEY It seems. These countriesare the inheritors of the common law legal system which developed in England from the time of the Norman Conquest and spread widely over the world in the following centuries. but in common with other excolonial countries. legislative communicativecompetence is not simply ""picked up". This is not to suggest that Australianlaw does not have a life of its own. usually as a result of colonisation.Australianlaw and legal languageare at hand and familiar to me. the legal systems and legal cultures of England and Australiaare probablycloser than the systems and cultures of Englandand the United States. Friedmann1975:209). one legal culture(Stone 1968:23. yet Australianlaw or legal language cannot be explained except by referenceto English law from which it developed and to which it is. Each shares a stratumof structure. legislative communicativecompetence.
and by the authorityof the same. The InstitutionalGoals: the desirable semantic or pragmaticqualities that the text should possess in order to serve perceived institutionaland social needs and values. Legislative communicative competence links the relevant categories or dimensions of the institutionalsituation to the linguistic forms and organisationand reveals the dynamics of the relationship: how situationaldimensions influence and even determine linguistic choice and how the text so produceditself becomes a constitutive partof the legal process. Its words are law. in the in the sense of an organisationof means in relation to ends (Hymes I982:107). the enacting formula. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . All statutes are framed within a global or macro(van Dijk 1977:238) performativeillocutionaryact. When the legislatureenacts a statute. 3. it is performingspeech acts in the classic. THE NATURE OF LEGISLATION An Australianlegal textbook defines a statute in this way: A statuteis a documentenacted by a legislative body constitutedaccordingto some constitutionalformula. and the Commons. performative. The ParticipantRoles: the natureof and interrelationships among the roles that the participantsin the situation type perform.an Act of Parliament. In English statutes it runs thus: "Be it enacted by the Queen's Most Excellent Majesty. as the term used in Anglo-Australianlaw makes clear . The relevantdimensions of situation are three-fold: i. Only if these conditions are met does the enacting formulaenact a 27 This content downloaded on Wed. The legislaturewhen it enacts statutes (or Acts of Parliamentas they are most often called) proposes to control action. usually only in the future.The document is called a Bill before it has been passed by Parliamentand received the Royal Assent.Austinian sense (1962:149). of legislative Controllingactions by words. thatunderlieand are responsiblefor legislative discourse. Anglo-Australianlegislative situation. as follows:"3 The successful performance of the enacting formula presupposes a set of institutional conditions:Within a legally constitutedlegislature. here is the key to the understanding language. its structural elements.2 These performativeacts are simultaneouslylinguistic and legal. the Bill must be passed by both Houses or Chambers(in a bicamerallegislature)and receive the Royal Assent (in Australia. 2. in the sense of ways of organising linguistic means in relationto ends. by the words contained in the legislation (Derham 1971:201). The Nature of Legislation: its social function.Legislative actions are performedby means of words and the words of the law are the law. in this present Parliamentassembled. The focus of this article is on the productionof legislation and thus on those strategies.conferredby the Queen's Representative). by and with the advice and consent of the Lords Spiritualand Temporal.THE LANGUAGE OF LEGISLATION interpretation.
No longer are they to be regardedas merely suggestions of policy within whose broad limits the court can exercise a broad discretion. The text.6 The authority of the statute/text is reinforced and given continuity by an assumptionor fiction that the words of the statuteare continuallyspeaking: "A statuteonce passed is deemed to be perpetual" (Hampson v. Plucknett. the embryo legislature: Towards the middle of the fourteenthcentury . Roles of the Participants). or not even an accuraterepresentation of the legislature's intention. and so we find the beginnings of a radical separationinto two functions:the first legislates and establishes a text. what is in fact enacted or made law by the utteranceof the institutionalconditions. But unless amended or repealed.The bindingforce of the statuteis now attachedto a verbal formulationwhich. enabling them to develop an independentposition and to act as checks upon the executive and as critics of the legislature (Plucknett 1940:297). the second adjudicatesand interpretsthe text. the enacted words. Moreover. can be tracedback as far as the fourteenth century. each with its own operativeor enacting verb (Coode [18521 1973:329). Austin 1970:236). is the common link and the basis on which each function maintainsand exercises its position. for more than anything else it promoted the isolation of the law courts and the judges. In the legal context. The words may be ambiguous. there is limited opportunityfor adducing evidence from any other source. the legislature. when thejudiciaryfirst beganto separatein functionfrom the King's Council. includingParliament or the draftsman. in keeping with its dual role as an act of language and an act of law. The individualsections. Insteadthey are regardedas texts which are to be appliedexactly as they stand. set out in numberedsections. once enacted. which frequentlycontain subsections.as to what the statutemight mean but does not completely or clearly say. The separationwas momentous for English history. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . So the rightof the legislatureto producelegislationand the duty of thejudiciaryto interpret it are centralto our political and legal systems. successful means valid and the statute as a whole is an operative instrument(Hart 1961:31.YON MALEY valid statute. thatis. constitutesa text of a very special character. the words must stand as they are.suggests that the origin of the role of legislation as a fixed.and the judiciary. The substance of the statute. canonical text. The historian.4 The substanceof the statute. incomplete. The Anglo-Australiantraditionhas been to maintainthe strict separationbe28 This content downloaded on Wed. is consideredto be a enacting formulain the appropriate set of separateenactments. The two functions producedby the ""radical separation"are still maintained separately (see the following section. exists indefinitelyor until repealed. of the executive. . . are embeddedwithin the global illocutionaryact which is the enacting formula. the judges began to interpret statutes strictly.5 They are authoritativeas words. Pizzinato 119651 New South Wales Reports).supportedby doctrineof the separationof powers.
Courts avoid what has been of the legislative function"7 and tend (with. except as to offences . that is. wings of legislative communicative competence. By this dichotomy. it must called "the nakedusurpation the legislative text strictlyand be admitted. hereby repealed. Mandatoryillocutionsets up two important ary acts have the force of commands which impose an obligation to act or not to act. however.some notableexceptions) to interpret literally. Australian. Thus Section 3 of the United Kingdom's (U. however.K. is never that of a statement. between the productiveand semantic tween legislation and interpretation. Courts in the United States have been more flexible and more adventurous. 9goo. performativelyrepeals earlier Acts: 2. 1975. . theircommon featureis that legal rules ""do world but a modelfor it" (MacCormick1978:104). it remainsbasic and central (Hurst 1982:46). 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . is a rule which defines a relevant legal category: (3) In this section police authority means any police authoritywithin the meaning .) House of Commons Disqualification Act. a distinction between substantive and procedurallaw.laws create rights and duties in one of two ways: They command or empower. the creation by means of correctly enacted speech acts. courts retain a centralfocus on the text as text. and the role of the courts in actually making and shaping law through statutoryinterpretationis more explicitly recognised. the law categories of legal illocutionaryact. Defining and repealing are fairly common illocutionary acts in legislation. . they are either MANDATORY or DISCRETIONARY. of rights and duties.(l ) The Acts mentioned in the First Schedule hereto are. They are. .S. subsidiary to those used to perform the central role of legislation. Section 2(1) of the New South Wales Crimes Act. Characteristically.THE LANGUAGE OF LEGISLATION that is. discretionaryillocutionary acts confer a power which may or may not be exercised.Discretionarytypes have two subcategories. which need not concern us here (Pearce 1974:126). whether a literalor a creative approachis taken. This emphasis contrastswith the Europeantraditionof legislation and interpretation which treats the text as a guide only (Bennion i983:1). The invariablegrammatical form which expresses the rule is a declarativesentence. to the extent therein expressed. First.and U. . Nonetheless. the various provisions of the statute/textas set out in the enacted sections and subsections are characterisedas rules. An understandingof the role and status accorded to a statute as a "'frozen of the bindingtext" (Twining & Miers 1976: 120) is crucial to an understanding institutionof legislation and to an explanationof the characteristicand enduring forms of legislative language. Even though they are a mixture of declaratory and directory speech acts (Searle not presenta model of the 1979:28). directoryor permissive.the modals must and shall are used in the perfor29 This content downloaded on Wed. In legal terminology. the illocutionaryforce of which. Characteristically. British.
It is necessary to make the qualification "appears to create" here. defining. these consequences: 1. then. Rules of law. and may are notorious sources of ambiguity in legislative interpretation. There is anotherconsequence of the fact that legislation is a set of perpetual rules of action: the generalityof the legal rule. for shall.8 Such apparentreversalsof semantic commonsense are forced upon courts by the statusof the text as the realisationor embodimentof the legislature'scommunicative intention. shall be treated as included among the offices described in Part III of Schedule i to this Act. it is up to the legislature to amend the text. Thus in Section 4 of the U. and so on. courts in effect. the office of steward or bailiff of her Majesty's threeChiltem Hundred'sof Stoke. . In this use. they express. They can only give it the meaning that they infer the legislature intended. Both modals and present tense verbs are performativein that their validly performed utterance as part of the statute performs a social act of some kind commanding. 1975. in the enacting verb of the section or subsection where the speech acts are acts of commandingor empowering. as the institutionof legislation and law currentlyunderstands it and as it is currently functioning. When the text says somethingabsurdor in conflict with other contextualevidence.decide that shall means may or vice versa (Maley 1977:6). Failureto use these forms would mean that the legislative rule was not a rule. in the form be it enacted by X that Y . Desboroughand Burnham. and may is used for the performance discretionaryacts. repealing.for other kinds of illocutionaryacts performedby the enacting verbs the tense is always present. In such cases. If the legislaturedoes not like the interpretation. it may be argued in a particularcase that the legislaturedid not intend that shall be mandatory(have the force of a command) and that there is contextual evidence within the Act that the meaning be discretionaryonly. relatingto the action of the speaker in giving permissionor laying an obligation (Palmer 1979:35). The institutionalview of a statuteas a set of rules in fixed verbalform thatare forever speaking has.deontic modality. the courts cannot change the text. if they agree with the argument. "'shallbe treated"appearsto createa rule with the force of a command: 4. typically.K. where X is the sovereign power and Y is the set of sections that make up the statute/text. concern 30 This content downloaded on Wed. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . For the purposesof the provisions of this Act relatingto the vacationof the seat of a memberof the House of Commons who becomes disqualifiedby this Act for membershipof that House. House of Commons DisqualificationAct. must. 2. . Use of deontic modals. That is to say.or of the Manor of Northstead.YON MALEY of mance of mandatoryillocutionaryacts. These linguistic forms are criterialto legislative languageand they are implied by the role that the institutionas a whole accords the text. Use of a global illocutionaryact which enacts the entirestatute. empowering. performatively.
or other mineral. he may. and four participant roles can be identified:on the side. 190i). anthracite.however. Its universalityis achieved by the realisationof the legal subject (that is. companies.however. the class of entity to whom the law applies) by the nonspecific pronoun Whosoever. defer the issue of his warrantpending the determination of that House (U. AUproductionside. Whosoever maliciously sets fire to any mine of coal. In reality. In some cases. and organisations. things. whose communicative intentionthe words of the statute are deemed to express. that is.(4) In any case where. SOURCE and DRAFTSMAN. acts. Generality of some kind. the situationis more complex. is characteristicof a rule of law. the legislature legislates for specific individuals. It has been argued that such legislation confers legal privileges only . in the room of a memberbecoming disqualifiedby this Act. On the otherhand. by virtue of the Recess Elections Act 1975. It is not criterial. The class is not necessarily a naturalclass but one to which the legal rule applies for some purpose. or to any well of mineraloil. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . THE ROLES OF THE PARTICIPANTS only in the communicativeact Traditionallegal theory identifies two participants of legislation: sovereign and subject. if it appearsto him that an opportunity should be given to the House to considerthe makingof an order undersubsection (2) above. the person occupying the position and carrying out the institutionalrole assumed by the Speakerof the House of Commons. kerosene-shale.(4) of the House of Commons DisqualificationAct has as its legal subject a limited and specified class of person. and circumstances.they are privilegia ratherthan leges (Maitland 1908:382). The SOURCE of the statute is the legislature itself.K. fuel. cannel-coal. actions. House of Commons Disqualification Act. 1975). Compare: 221. Section 221 is a rule of greatgenerality:It applies universallywithin the jurisdiction of the legislature. Modem statutes prefer the phrase anv person who or a person who but the effect of the phrase is equally nonspecific and universal. Laws emanate from the sovereign or sovereign power (the Queen-in-Parliamentin the United Kingdom and Australia) and are directed at those individualssubject to that sovereign power. some rules are more general than others in that they are applicableto a wider class of individuals. 6. the Speakerof the House of Commons would be requiredto issue duringa recess of that House a warrantfor a new writ for election of a member. then. events thanothers.THE LANGUAGE OF LEGISLATION classes of persons. shall be liable to penal servitude for life (New South Wales Crimes Act. Section 6. This is the sovereign 31 This content downloaded on Wed. on the interpretation DIENCE and INTERPRETER. Undoubtedly.
laws have been draftedby judges.or a particular defined section of it. they are by no means homogeneous documents in the sense that each has a single authoror draftsman. that is.YON MALEY power which alone has authority to make laws for the particularjurisdiction (although it frequentlydelegates part of that authority). varies from system to system and fromjurisdictionto jurisdiction. accountants.Some are very old and usually have been considerablyalteredover the years by legal processes of amendmentand repeal performedby laterdraftsmen. and the office of the Parliamentary Counsel. But the vast majorityof statutes on the statutebook (the body of currentlaw) have been writtenby professionaldraftsmen. public servants. These specialised interpreters may be lawyers. In practice. In terms of the rules of draftingstyle for translatingthat substance into a valid and effective Act.Who the legislatureis. or imbeciles. statutes assume and requirethe existence of a specialised INTERPRETERto interpretor construe their meaning. Even so. insane. Each dyadic relationship has conse32 This content downloaded on Wed. Wherethe responsibility for this text lies dependson the points of view taken.most importantlywhen there is dispute as to what is meant. in the first instance. dependingon the origin of the Bill. lawyers. The AUDIENCE of the statute is the general public underthe jurisdictionof the legislature. then.the courts. Over the centuries. this usually means thata governmentdepartment or a memberor membersof the legislature. and draftsman and professional interpreter. What is said is what the legislature intended to say. The text of a statute. However. instructsthe draftsman. There has only been a profession of draftingsince the nineteenthcentury. was first establishedin England in 1869 (Renton 1975:5). It is a rarestatute.thatdoes not contain additionalor amendedmaterial. He or she is a public servanttrainedfor just that task.in a piecemeal way. since the words of the statuteare the chief evidence of the legislature'sintention. officials. Only the court's interpretation is authoritativeand binding. these are known as private member's bills. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . The situation outlined above contains two institutionallybased dyads: the sovereign power (the source) and those subject to the Act (the audience). providedthey are not minors. both of content and expression. what it comprises.9 There is also a small class of statutes that have been writtenby a memberof the legislatureor someone assisting him. and . In termsof the substance of the enactmentor statute. is the product of a collaboration.the meaningthatthe words carry.so thereis rarelya single DRAFTSMAN for any statute. which is the specialised branchof government which in Englandand Australiacarries out the bulk of governmentdraftingwork.the legislaturemust be assumed responsible. an individual whose occupationis to draftrules of law. This has not always been the case.that is. its intended meaning. The legislatureinstructsthe DRAFTSMAN as to the substanceof the Bill (as it is at this stage). because of theircomplexity. ancient or modern. between the legislatureand the draftsman and may includeamendments thathave been made or requiredin Parliamentary debate. then the draftsmanis responsible.
. Thus.Rulegiving of any kind involves asymmetrywhen one partyhas the authorityto regulate the actions of others. . It appearsto be addressing the world at large.(2) A personguilty of an offence underthis Act shall be liable. . X is liable . . The sovereign power and subjectrelationshipis a relationshipof great social distance and differentialpower relations. Within the body of the statute. or destroy. . Legislative rules characteristicallyuse the formal and (except for rules and regulations) archaic form shall with its overtones of authorityand power. completely eschewing first and second person forms. the lexical items which are both archaicand formal. that is. Thus. formality and impersonalityare predictablecommunicative modes or strategies. the enactingformulawhich prefaces a statutebegins.K. The deontic modal shall performsand creates a rule of obligation in the most formalway. chiefly but not exclusively legal. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . 237. too. shall be liable to penal servitude for fourteen years (New South Wales Crimes Act. Whosoever maliciously attemptsto set fire to. That is. 190I). In the most general and to the layperson. and the capitalisationof the names. performatively. on conviction on indictment. both draftsmanand professional interpreter call upon a backgroundof sharedknowledge and assumptionsabout legal and political principles and processes. sense. The form "'whosoever [does] . This is 33 This content downloaded on Wed. . . shall be liable . Taking of Hostages Act. . and participantsonly by virtue of their institutionalrole." The verb form. any such vessel. or cast away. a rule of obligationcould be phrasedin the formIf X does Y.to imprisonmentfor life (U. .enacts the statutebut it also reflects the authorityof the legislature(in its role as sovereign power) and the status differentiationby the use of passive voice. explicitly. "Be it enacted by the Queen's Most Excellent Majesty . The relationshiprests upon a very large body of shared meanings of various kinds. The second dyad is a relationshipbetween specialists. "Whosoever" and "'aperson" are thirdperson indefinite nominals.THE LANGUAGE OF LEGISLATION quences for legislative language. When that regulationis to be done by means of speech acts to the speech act are distanced. elusive. addressesits audience. the various speech acts which create rules of law also reflect the relationshipof authorityand status differentiation. its subjects. 1982). But other forms are used: 1. These examples show. . that legislative language uses the category of person in a characteristicway." is a common form for sections which define or set out the elements of a crime. or must. although in practicalterms the audience is that section of the jurisdictionto whom the law is directed. unknownpersonallyto each and the participants other. a jussive subjunctive. the sovereign power. and it is in this formal and unspecific way that the locutionarysource of a rule of law.
g. at any one time. by legal historians.. The componentsof the crime and thus the meaning of the word may vary over a period of time and accordingto statutoryregulationor judicial decision (Maley 1985). The specialised legislative competence of the draftsmanand professionalinterpreter consists to a large part of knowledge of the semantic oppositions and rela34 This content downloaded on Wed. this seems ratherlike a distinction without a difference. meanings which are unique to a specialised or craft-bound situation and which conceptualise and classify extralinguisticreality along lines that are either theoreticallyor pragmaticallydesirable for the subject matteror situation type. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . whereasa technical term is a special termof law but the contentof its meaning may change in context or over time. defendant. As it has developed.YON MALEY the sociolegal context in its widest sense. plaintiff. stare decisis (Mellinkoff 1963:17). such terms have a stable core of meaning and have paradigmaticvalue by virtue of their participationin lexical fields. To the layperson. Technicality in legislation may be either technicalityof the subject matter legislated for (e. the shared meanings can be characterisedas technical meanings. ""It is sufficient for the lawyer's purpose of the moment that with the terms of art the effect of context on meaning has become more limited than for most words. It is a technicalterm in that it is a specialised term used by participants in a particular sphereof activity but the meaning of the term is not absolutely fixed. To give an example: The Australian draft Bill of Rights proposes to enable a HumanRights Commissionto conduct compulsory conferences "in such manner as the person presiding at the conference thinks fit" (35. bail.with the need to find terms for the concepts of a growing social institutionso that the growth of specifically legal concepts and specifically legal terms for those concepts meant the growth of the law itself. a technical term like manslaughterhas only a relatively fixed meaning. The literal meaning is quite clear. presumablyin the interestsof renderingthe enquiryunderthe proposedAct more flexible and informal.The provision.ex parte. That is the essence of the 'term of art' " (Mellinkoff 1963:391). More narrowly.g. those of propertyand possession). that is.. Examplesof termsof art are: alibi. A term of art is "'a technical word with specific meaning" (Mellinkoff 1963:17).2). technicality in the vocabularyof the law generally has two aspects: technical terms and terms of art. The technical vocabularyof law and legislation is largely Frenchin origin. and its developmentis linked. certiorari. an Act which regulatesand specifies economic or engineering standards)or purely legal concepts (e. Lawyers assume that a term of art always bears the same meaning in whatevercontext it appears. felonv. since the commonly accepted definition of a technical term is that it has a specific meaning in a specific sphereof activity. However. in effect. apparent will suspend all the usual and historical "safeguards" of the law of evidence. Nonetheless. but the social and legal implications of such a provision are quite profoundand are immediately to a lawyer but not necessarily to a layperson. The difference appearsto lie in the fact thata termof arthas an explicitly fixed meaning.
exceeds ten dollars. its effects can be recognised immediately. sapling.even. garden. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . sapling.THE LANGUAGE OF LEGISLATION tionships within such fields. that is. shrub. pleasure ground.and also U. Sections of this type are common in English. exhaustive rule. Thus: 140. The draftsmanattemptsto cover every possible eventuality. above the claims of justice: "Insofar as any generalisationcan approximatethe truth. of any tree. indeed.S. where the value of the article stolen. by those members of the public subject to the Act. or steals. To the extent that it is specialised knowledge.Remarkssuch as this are unlikely to endearlaw or lawyers to laypeople who cherish the notion that the chief purpose of law is to bizarrepoint of view is providejustice. or destroys or damages with intent to steal the whole. shall be liable to be punished as for larceny (New South Wales Crimes Act. The linguistic forms of the legislative rule are selected so that they are explicit and precise. or any part. orchard. Australian. 1900). or any underwood. or any underwood respectively growing elsewhere than in any situation before mentioned. or the amount of injurydone. exceeds two dollars. legislative rules contain featuresof language and organisation that are directly attributableto the pursuit of certainty. inadequate. The language of the rule refers to all the possible entities or actions to which the legislature intends the rule will apply. or in any ground belonging to any dwelling house. or avenue. such competence is not shared by the audience of legislative discourse. or destroys or damages with intent to steal. it may be said that it is more importantfor a rule of law to be certainthan it is for it to be just" (Wade 1940:X87).that is. every possible instance of the proscribed behaviour that can conceivably occur. occasionally. or the amount of injurydone. If laws are unclear. uncertain people cannotordertheir affairs from day to day for they will not know the scope of the law. law. or plant. ambiguous . where the value of the article stolen. the law prizes certaintyabove all . In English and Australianlegislation. the whole. without confirmation by decisions in the courts (Renton 1975:57). But the reasoningbehind a so apparently that. When a law has legal certainty. growing in any park. Explicitness derives 35 This content downloaded on Wed. or any part. certainty is a prerequisiteof justice and uncertaintyis a source of injustice. Explicitness This involves draftinga detailed and. of any tree. shrub. if possible. THE GOALS OF LEGISLATION Of all values. Whosoever steals. or plant.
Thus distinctions are made between murder. In re Castioni. 167 per Stephen J. ). precision. Note that the second paragraphrepeats the first part of the first paragraph. therefore. In the first case. . .It is all the better if he cannot pretend to misunderstandit ( I Queen's Bench 149. the judge referredto . although they may be easy to understand. to draftActs of Parliament. and in which.).which. precision is achieved by technicalitywhich is itself sustained by the existence of professional. must not only be precise. trainedparticipants (see the precedingsection). itemising the proscribedactions and their goals. or these might cause. Legal language. Repetitionratherthan pronominalreference is the preferredcohesive device. A technical languagedevelops not only to facilitatecommunication between participantsbut also to furtherthe interestsof some perceived institutionalgoal .but it is necessary to attain if possible to a degree of precision which a person reading in bad faith cannot misunderstand. It has the secondaryeffect of minimisingthe risk of ambiguity that the use of such pronouns as they.YON MALEY from the distinctions made (whole. the semantic field is fragmentedand differentterms given to the parts that make up the whole. any gives universal. a tendency towards general terms to representmore inclusive concepts thanthose of ordinarylanguage. destrovs. manslaughter. between burglary and housebreaking as types of thefts of 36 This content downloaded on Wed.). Primarily. as I have had on many occasions. Insofaras explicitness covers all items of a relevantclass. .althoughnot exclusively. embezzlementandfraudulent misappropriation as types of theft. Turner(1973:172) points to two contrarytendencies in the vocabulariesof technical languages:a specialisationof vocabularyso that distinctionsneglected in nontechnicalvocabularycan be made. then.here. in the second case. a semanticfield is identifiedand named. underwood . In eithercase a special term is used. it must be more precise than other styles of language.people continuallytry to misunderstand.or anypart . 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions .. .unqualified application. The repetitionmakes explicit what is sharedby both rules. Precision Legal drafting seeks "a degree of precision and internalcoherence rarely met outside the languageof formal logic or mathematics"(Dickerson 1965:5).between larceny. it. plant. etc. . from the specificationof the membersof the class of objects and the class of actions falling underthe rule (tree. . infanticide as kinds of homicide (often differently in different jurisdictions). shrub. sapling. it is not enough to attain a degree of precision which a person reading in good faith can understand. A frequentlyquotedjudicial dictum makes this point. Both these tendenciesoperatestronglyin legal and legislative language. steals. thatdegree of precision which is essential to everyone who has ever had.
an estimated40 percentin Australiancourts(Pearce 1974: 1) and as high as nine cases out of ten before the House of Lords (Bennion I983:20) .is an instance of failed legal certainty. one symptom. the divisions and classifications made between Partsof an Act or between sections and subsections reflect the legislature'sview of what is important. but it doesn't necessarily help him or her to understandit.indexing. Simplicity and clarity versus immediate certaintyare viewed as conflicting obof jectives.and to leave it to the courts to settle the details of its application in particularcases. Every case of statutoryinterpretation before the courts. and often technical legislation produces laws that are complex and unintelligible to their ultimate consumer. The difference in language style is one aspect. The of the Parts of the rule and the Act are also importantto achieve arrangement precision. and academic writers clearly recognise that the pursuitof certaintyby means of explicit. that is. Withinthe body of the Act. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . detailed. Given changingcircumstancesin a changing world. The omission of an item or circumstancefrom a rule which purportsto be exhaustive raises the problem of 37 This content downloaded on Wed. of a much wider institutional and social difference.THE LANGUAGE OF LEGISLATION money and/or chattels from a house. the use of the general tern is equally apparent: fraud. and devices such as numbering. It may ultimatelybenefit the ultimateconsumer. homicide. On the other hand. and paragraphing are attemptsto place a clear. English and Australianlegislation contrastswith legislation in European jurisdictionslike France and Germanywhere the traditionalapproach has been to draft laws in broad general principles . exact grid over a selected section of subject matter. it is difficult for the legislatureto foresee and cover every circumstancein a rule. It is apparent. lawyers. since it so often fails to achieve its goal. Judges. It is importantto make the point here that certainty in a legal rule doesn't necessarilymean intelligibility.The formatattemptsto mirrorthis view. the person subject to the rule. Precisionneed not derive exclusively from technicality:The precise word may be a word from ordinary language or from nonlegal technical language. in the sense of a correspondencebetween what is intendedand what is said. In the United Kingdom.with a consequent gain in intelligibilityand simplicity . of uncertainty. Frequently. however.lettering. In this respect. the 1975 Renton Reporton the Preparation Legislation came down firmly on the side of certainty: "The draftsmanshould not be forced to sacrifice certainty for simplicity" (1975:150). that "immediate certainty" is not a very strong justification for a detailed exhaustive or technical legislative rule. Courts in Europeanjurisdictions have more freedom than English and Australiancourts to go behind the words of the text and look at other textual evidence in order to establish the intention of the legislature (see The Nature of Legislation above). the very measuresthat were intended to achieve certainty are the source of uncertainty. The role of the judiciary and its relationshipwith the legislatureare quite different in each system. negligence.
that is. Scores words of subjective interpretation. develop the law in ways uncongenialto the legislature. vehicle. then. place. The legislaturemay not itself be certain as to the membership of the class or the exact value of the standardto which the rule refers and may prefer to leave some open-endedness in the rule so that it can be adapted to changing social needs (Payne 1956:96). child. penumbraof doubt which give legal language a characteristicopen texture. a certain amount of vagueness is often desirable in order to achieve the comprehensivenesssought by generality and to provide leeways (Stone 1968: 319) for unforeseencircumstancesor entities which may laterbe includedwithin the ambit of rule. employs such a to the draftsman) Whenthe legislature(throughits instructions strategyof generality without accompanyingexplicitness or a strategyof intentional vagueness. exercising theirjudicial independence. is found in linguistics:Lyons (198X) and Hurfordand Heasley (1983). so too is flexibility. If certainty is perceived to be a virtue. woman. the uncertaineitheran intentionalomission or an unintentional ty can only be resolved by a court or by furtherlegislation.generallyconsideredto be an evil. or like wilfully. So such a rule contains an element of vagueness. An influentialview in law. the governmentof the day. it is undesirableor must be balanced against another. legal rules frequentlycontainjudgment words. it is choosing flexibility ratherthan certaintyand stability and trustingthe discretionof the courtsto construeand apply the rule "correctly. there are three choices: alter the law. Insofaras a legal rule is a general rule. is probably an unachievablegoal in legislation. The necessity for a certainamountof flexibility is implied in the first place by the generalityof the legal rule. On the other hand. Apart from general words. the total membership in the light of the is not fixed and can be determinedonly by later interpretation intentionof the statuteand the circumstancesof the instantcase. provide accompanyingexplanations with the Bill or Act as to legislative inten38 This content downloaded on Wed. that is.YON MALEY gap. but ultimatelyeach piece of behaviourhas to be judged subjectively against these definitions and a decision made about applicability. reasonable." If that trust is not well-founded and courts. Now. for example. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . Too much vagueness results in uncertainty. an ad hoc and post hoc solution. Complete certainty. thing. althoughits role is rarelystressed. Ultimately. of decisions and definitions may attempt to identify behaviour to which such termscan apply. it employs generalclassifying words. To take a familiarexample: what is a vehicle? Does the classification include a scooter or a hovercraft? Unless the rule identifies and delimits by means of specificationthe membersof the class relevantfor the rule. less frequentlyspoken of goal. Vagueness is potentially both valuable and dangerous in a rule of law. a general term can be certainonly when the principlesof classificationare known and specified.'0 Occasionally. flexibility. stereotype or prototype meaning. also. A similar concept. proposedby Hart has been that such general words have a core of certainty and a (196I:I19). maliciously.
directions and guidelines frequently urge the use of short sentences. despite a growing recognitionof the desirabilityof simplified legislative language. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . In Britain and Australia. However. fixed its meaning. in those jurisdictionswhere Plain Language laws operate. to a large extent.The principal 39 This content downloaded on Wed. for example. Such reliance on the draftsman's syntactic skill may or may not be wellfounded. Very early statutes were draftedin the form of a single sentence because each statute was considered to be a single enactment. if you have it all in one sentence. This is the case with key terms in old and relatively settled areas of law. Finally. but of course you are faced with having to find the relationshipbetween that sentence and anothersentence two sentences away which. computercrime. Today.THE LANGUAGE OF LEGISLATION tions (a course being followed at presentin the Federaljurisdictionof Australia). draftsmen retain a strong preference for the single sentence section or subsection. and it would probablyhelp overall to have them shorter. Given the other institutionalrequirements of exhaustiveness and precision. The Renton Report on the Preparation of Legislation quotes with approvalthis opinion: Shortersentences are easier in themselves.(Renton 1975:64).The components of the crime of murderand thus the meaningof murderhave changed considerablyover the centuriesand it is quite likely that they will continue to do so. (Maley 1985). Some lawyers are presently arguing for a redefinition of theft to include theft of information. each section or subsection is regardedas a separateenactmentand no function is served by enactingthe rule in one sentence ratherthan in a series of sentences. or appoint politically sympatheticjudges. whereby clauses. particularly parallel clauses setting out parallelprovisions. Their conservatismis based on the belief that the semantic connections between elements of a single sentence are likely to be clearerthan those between two or three separatesentences. are inset and numbered. following a history of past interpretation that has. is really done for you by the draftsman.draftsmenare free to draftrules in short sentences if they think it desirable. The convention of the single sentence section or subsection has a long history.Moderndraftsmenattempt to breakup the visual indigestibilityof the text and to impose a logical orderon it (see above) by a techniqueof paragraphing. a legislative rule must effect a certain amount of condensation. In the United States. but its effects are apparentin the form of the legislative rule. the meaning of such terms can change if the class of cases to which the term is applied is broadenedor narrowed. the convention of the single sentence section or subsection frequentlyproduces very long sentences with complex subordination and coordination. The flexibility and open textureof general words may be lessened if the word has achieved that statusof a technicalor semitechnicalword. in orderto fit all the elements of the rule within the confines of one sentence.
andjuxtaposingelements in relationto each other. they are more movable than verbs and can. a phrase like "shall be afterwardsliable to prosecutionfor the same crime" has the same legal effect as the shorter "may be afterwardsprosecuted. and IMPERSONAL. be placed in subject position and given thematic prominence. Everyconviction upon a chargedisposed of summarilyundersection four hundredand seventy-nine shall have the same effect as a conviction upon an indictment for the offence would have had. since typically the rule either commands or empowers. at the disposal of individuals. in everyday practice. a conviction. particularlyin proceduralsections. igo9). For example. and which is a partof or a step in legal procedure. Section 481 is "about" an objectified process. Rules use linguistic forms that realise the meanings ASYMMETRICAL. is one of authorityand great social distance.YON MALEY meansof controllingthe length. It is their knowledge of the strategies and their ability to use them that is the basis of an appropriately expressed and organised rule of law. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . as in Section 481.or who obtains a certificateof dismissal undersection four hundred and eighty. the draftsmen. It has been noted that. between Parliamentand people. draftsmenchoose linguistic forms with the meaning PERPETUAL. then. given the requirement thatthe rule is always speaking. First. the legal rule typically expresses GENERAL meanings. Third. is by condensationof clauses and phrasesto participialphrasesand nominalisations. either MANDATORY or DISCRETIONARY meanings will be produced. Nominalisationsobjectify the process and make it possible to be treatedas somethingwhich is apartfrom personsand time. A TEXTUAL ANALYSIS Assume. As ways of organising linguistic means to institutionalends these strategiesor ways of meaning are.Similarly. has other intendedconsequences.Thus: 48 I. and no person. however.sentences using the nominal style are wordierthanthe corresponding verbal style (Wells 1966. shall be afterwardsliable to prosecutionfor the same cause (New South Wales Crimes Act. that the communicativestrategiesidentifiedso far make up legislative communicative competence. convicted as aforesaid.draftsmenwritenot only as the ammanuenses or scribesof the legislature 40 This content downloaded on Wed.FORMAL." So it would seem that the very frequent use of nominalisations. Halliday 1977). The relation between sovereign power and subject. frequently. Since the basic social role of the institutionof law is to regulate conduct of classes of individuals. The institutionalroles of the participantsinvolve a second set of communicative strategies. Nominalisationsdo not always achieve condensation. that is.As nounlikeelements in the sentence.
wi/ful 5.sioni 3. they will employ communicativestrategies for producing rules that have PREC1SEand EXPLICIT meanings. using judgment words. notwithstanding9 stances were such that but for this section the offence would have amountedto murder. which defines the crime of infanticide. so a certain amount of flexibility is desirable for some legislative rules. Draftsmen may also believe that certainty is best achieved by CONDENSED meanings. Many legislative rules realise all or most of these meanings. draftsmenarethe vehicles of institutionalbeliefs andvalues. a 2. mnay l)e nonspecific determiner superordinatenouns nonspecific pronoun lexical item with variable application present tense & deontic modals 41 GENERAL GENERAL GENERAL VAGUE PERPETUAL This content downloaded on Wed.THE LANGUAGE OF LEGISLATION but as practitionersof a highly specialised competence with a long and selfconscious history which requiresan equally specialised audience. Not only convention but also experience urges the advantage for future of rules presented as a single semantic unit. womnan1. all or most of the ingredientsof the rule containedby means of complex subordination.nominalisation. have certainexpectationsof what languagecan do bothdraftsmenand interpreters both to create legal powers and promote legal effectiveness. In this respect. the numbered superscriptseach representan example of legislative communicativecompetence. THE TEXT by any3 wilful4 act2 or omission2 causes5 the 22A(I) Where a' woman2"17 death of her child.15 I.6'8 then. In Figure I the same informationis given diagrammatically. interpretation However. In producing the legislativetext.10she'7 shall'' be guilty of infanticide. Hence rules with VAGUE meanings. as does the State of Victoria in Australia. A typical one for my purposes is section 22A of the New South Wales Crimes Act.6'7but at the time of the act or omission8 the balance of her mind was disturbed by reason of her not having fully recovered6from the effect of lactation9consethat the circumquent upon9 the birth of the child. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . participialphrases within a single sentence. being5 a' child8 under the age of twelve months. It represents a schematisation of legislative communicative competence where the relationshipbetween the situationaland institutionalconditions. that is. The English law of homicide has an almost identical section. a just law may need to accommodateto changing times and unforeseen circumstances. anly 4. As the section is set out below. In the belief that a just law is a certain law. omis. can be traced. calnses. which either determine or influence the communicative strategies and their linguistic realisations. I90I. beinig. act. This will involve technicalityon the one handand specification and repetitionon the other. shall be.10 and may5"12 for such'6 offence be dealt with and punished'13 14 as if she had been guilty of the offence of manslaughter'0of such16 child.
the illegal act is not: It is any wilful act or omission. a woman. punished ithere a . infanticide. which establishes by the use of a nonspecific determinerand a superordinate noun the class of individualsto whom the rule applies.Nonethe42 This content downloaded on Wed. there is. The case law on its meaningis enormous.YON MALEY 6. Such SPECIFICphraseslimit the class to whom the rule applies. Thus Section 22A is a GENERAL rule. child 9.. Section 22A applies to a woman who kills her infantchild where infantmeans 'undertwelve months'. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . she This list shows how the selections made from the linguistic system are representative of kinds of choices and kinds of meanings. that is. using third person forms and words from the formallexicon (notwithstanding. reduced clauses CONDENSED 7. recovered montihs.In contrast to the repetition. being a child underthe age of twelve months. Not only technical terms but phrasaland lexical repetitionas well as anaphoric such attemptto make the rule unambiguousand thus PRECISE.. The class is limited when the rule further providesthatshe will be guilty of infanticide(a TECHNICAL term)if she causes the death of her child. ma! be dealt with and 15. IMPERSONAL. the aet or omission. Wilful is a VAGUE term. consequent upon to. not . dealt with and punished 14. As a rule. murder. ASYMMETRICAL. the rule is CONDENSED by means of reduced clauses and adjectival phrases which are substitutesfor longer clausal structures. since it provides thata particular class of woman shall be guilty. . a woman. consequentupon). So the combination of a nonspecific determinerany and wilful importsboth generalityand a degree of flexibility to one component of the rule.. .what is wilful in any situationmust always be a matterof the facts of the situationand the mental state of the accused. EXPLICIT PRECISE IMPERSONAL 13. Section 22A is FORMAL. Section 22A is primarilya command. is a MANDATORY rule. such 17. being . shall 12. child 16.lactation. notwithstanding. first.lactation.. manslaughter ii. . If the class of woman to whom the rule applies is limited. twelve mnonths 8. definite specific reference (the) lexicon lexical item of specialised use (technical) illocutionaryacts using deontic modals illocutionaryacts using deontic modals passive verb forms with deleted agent illocutionaryact directing action complex sentence adjectival anaphoric reference third person SPECIFIC PRECISE FORMAL PRECISE MANDATORY DISCRETIONARY CONDENSED ASYMMETRICAL PRECISE. ma! lexical item with specific reference repetitionof lexical item. but also contains a permissiveor DISCRETIONARY element in regardto the type of punishmentthata courtmay use.
since all the necessary elements of the crime are contained within a single sentence. You will next observe thatthe section speaks of the death of the child being caused by a wilful act or omission. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . the amount of precisioncontained in the rule is significantly lessened if. In R. surely the courtcannotexercise its discretionand not The length and explicitness of punish her as if she were guilty of manslaughter? the single sentence section appearto imply thatevery componentof the crime has been specified. it is opposed to or offset by vagueness. The phrase wilful act or omission has an inherentvagueness that no amount of precision in vocabulary will overcome: How can an objective standardof wilfulness ever be determined?The section is partly discretionaryand partly mandatory. MANDATORY / DISCRETIONARY.it met its deathvery soon afterbirth.THE LANGUAGE OF LEGISLATION less. some interpretation must occur before it is applied:All parties must be in agreementas to its meaning.For example. Figure I schematises legislative communicative competence and shows that the rules are legal institutionalrules. v. that is to say. "Wilful" in that context means "intentional". and before you could convict the prisoner of infanticideyou would have to be satisfied that she intentionallydid some act or intentionallymade some omission which broughtabout the death of the child. Here you have no difficulty about that because undoubtedlythis child was underthe age of twelve months. In Australia. it appearsto be an EXPLICITrule. gentlemen. These oppositions are potential sources of difficulty for interpretation. at certainpoints. Section 22A has been applied.as it were. that the first requirement. rooted in the nature and purpose of the activity of rulemakingor legislation. is that the child that is killed must be under the age of twelve months. No case has turnedon an issue of interpretation.EXPLICIT/ CONDENSED. no plaintiff or appellant has so far contested any aspect of its meaning. cases of women charged with infanticidehave come before the courts and been settled. Section 22A seems less than certain. Withinthe section there are the oppositions: PRECISE/ VAGUE.the presidingjudge felt it incumbentupon him to interpret Section 22A. 43 This content downloaded on Wed. Hutty(['9531 VictorianLaw Reports). He instructedthe jury: You will observe.before a woman may claim the benefit of this sub-section. for if the woman is found guilty of infanticide. translating. THE OPPOSITIONS OF LEGISLATIVE DISCOURSE Figure I shows that Section 22A contains apparentlycontradictorymeanings. from the style or registerof legislation to a more everyday register. But does a nonlactating but mentally unbalancedwoman who kills her ten-month-oldchild receive the benefit of the provisionor has condensation of the rule prevented that particularmeaning being expressed? With such inherentsemantic tensions. However.There seems to be a possibility of arguingthat in this section may in fact means shall or must.
fiQo f 44 This content downloaded on Wed. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions .l E l 5E l IL L D E V) O" W- C~~~~~~ >.
Third. you would have very little doubt that the conduct of the mother . in a numberof instances. The courts interpretwhat the legislaturehas enacted. This seems to be the case with the law of infanticide. If you were satisfied of those matters it would be open to you to returna verdict of infanticide(per BarryJ. althoughnot necessarilyin the case of Section 22A. The fact thatthe meaningof Section 22A has not yet been contesteddoes not guaranteethatit will not be contested in the future. Their motives may be political or may more simply consist of a realisationthat in a particulararea of the law a certainamountof leeway or flexibility would be desirableto cope with unexpectedor "hard" cases. vagueness or generality or even ambiguity may be deliberatelybuilt into the rule.or perhapsbecause it applies in a relatively straightforward and uncontroversialarea of the law. I imagine. in their turn. the two wings of legislative communicative competence meet in the interpretation of the text. So despite institutionalseparation. the meaning will be clear and undisputed. or vaguenessor syntacticambiguitycaused by syntacticcondensationor some other linguisticcause. despite a potential for ambiguity. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . the balanceof her mind was disturbedby reasonof her not having fully recovered from the effect of giving birthto the child.the legislature. remain unchallenged.that is to say.perhapsbecause the general intent of the rule or the Act is well-known or plainly apparent. a rule can be both mandatoryand discretionaryif the context makes clear that a distinction is intended..then it would be for you to consider whether at the time she did that act or made that omission. cannot but be influencedby their experience of what courts will do. In most "unpathological" cases (as distinct from what lawyers call "hard cases"). and with the deathof the child occurringwithin a very brief time of its being born. always the possibility that because of generality. There are three possible explanations why rules of law like Section 22A.e.THE LANGUAGE OF LEGISLATION If you were satisfied that the death of the child had been broughtabout by an intentionalact or omission on the partof the prisoner.). the legislature's)and the sentence meaning(the text). because the legislatureor the particular originatorsof the Bill within the legislaturesee the need for a certainamountof fuzziness. Troubles with shall/may are problems of ambiguous illocutionaryintent. it is the role of the courts to step in and interpretauthoritativelyor 45 This content downloaded on Wed. however. there is an apparent mismatchbetween the speaker's meaning(i. I suppose where you have circumstances establishedbefore you such as you have here. In such cases. Second. if the intent is clear. that at that stage the balance of her mind was disturbedby reason of her not having fully recovered from the birth of the child.was the productof the ordealthatshe had undergoneand you would have very little doubt. the meaning is clear. the rule will be unclearand thus uncertain. There is.if you found it amounted to a wilful act or omission causing the death of the child .
to opt for broad statementsof principle (as favoured in European law) and trust the courts to apply them wisely? Given the resources of language. vagueness.on the other hand. knowledge which underlies the ability to produceand interpret legislative discourse. on the one hand. as some legal authorities(Renton 1975. At present. it will become less exact and less certain. Dale 1977) have suggested. if they are pursued too far. in fact.economy.generality. and technical terrnsif it is in the natureof a general rule to have an open texture?Would it not be better. modes of organisationwithin the style which providefor flexibility. But the amount of change possible is probably limited. detail. might not another. CONCLUSION The picture that emerges.YON MALEY construe the rule. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . then. as many authoritieshave suggested. of the right circumstancesto perform them in. legislative style can change: it has. Theremay be alternativeways of fulfilling the same functions . This in itself may not be a bad thing. As the rule becomes less detailed. Usually the construction will provide a precedent for later cases on the same rule. the draftsmanand the judge have developed characteristicstrategiesof producingand interpreting the text so created that will promote the interests of both stability and flexibility.it is rationalbecause it is functional. or rather.but it is a measureof the importanceof the role of 46 This content downloaded on Wed. certainty and precision will decrease. Legislativediscourse cannot be said to be purelyor wilfully esoteric or archaic or unintelligible. contingent. This is a matterof law and politics. Generality. explicitness.more accurately. This is not to say that the forms and style of legislative discourse are thereby justified and that no otherstyle could achieve these institutionalaims. It constitutes a rationaland functional style . in this centurychanged considerablyin the direction of greatersimplicity both of syntax and of vocabulary. provided the legislature is preparedto entrust the task of interpreting and applying these broadgeneral principlesto the courts and providedthe courts are preparedto undertake the task. less specialised. by means of endless repetition. of acts to be performed. is of a large body of institutionalknowledge shared by the participantswhich sometimes determines and sometimes merely influences their linguistic behaviour. It is knowledgeof all kindsof things: of roles to be assumed.why should the regulation of social conduct be carriedout by means of perpetualcommands?Why pursue the chimera of precision. not of language . of desirable communicative strategies to be pursued in the interestsof larger legal values. syntacticcondensationare. technicality move in the direction of certainty and stability. style be devised to meet the needs that the institutionlays upon it? Of course. The rule will continue to bearthe same meaning(unless a highercourtoverrulesor statutoryamendmentoccurs) thatthe courthas given it.Given the historical decision to perform legislative acts by means of words. specificity. simpler. as its critics often say. and simplicity may be desirableaims.
Cases and materials on the legal process. B. & Davy. 7. this is interesting. (1962). W. 0.33). In Philosophical papers. 16 Jan 2013 14:05:11 PM All use subject to JSTOR Terms and Conditions . John Bowring. & Waller. In the United States.C. (1970). Hymes and an anonymous reviewer on a later version.then clearly the lawyer is thinkingof something in the natureof a performativeanalvsis (Ross 1970). the enacting formula preceded each section of the Act. NOTES i. P. Poetic diction and legal fiction. Robinson. In M. REFERENCES Austin. 51-71. or the language of the written law. (1962). Hart(Pitcher 1973:2on). J. 2. 47 This content downloaded on Wed. it is now possible to call upon the evidence of Parliamentary debate or other extrinsic materialto determine the intentionof the legislature and facilitate interpretation. are fairly apparent. (1843). How to do things with words. Per Lord Simonds (Magor and St Mellons R. Legislative drafting: A new approach. (1977). F. I am grateful to my colleagues ChitraFernandoand Ruth Waterhousefor a numberof helpful comments and criticisms on an early draft of this article." The assumptionappears to be that either the enacting formula at the head of the Act controlsthe entire set of sections or rules of law that make up the Act. (1980).. Crystal.see Frank (1930) and Llewellyn (1951). For mav construedas mandatory.Hart (0953). J. Ithaca-CornellUniversity Press. 8. The fiction of legislative or legal certaintyhas been stronglyattacked. Statute law. This practice was omitted when the Interpretation Act of 1889 (United Kingdom) provided:"8. Maher. & Bfierley. Sydney: Law Book Company. Investigating English style. Every section of an Act shall have effect as a substantiveenactmentwithout introductory words. Danet. Reprinted in S. Englishfor Specific Purposes 68.. the enacting formula is: "Be it enacted by the Senate and the House of Representativesof the United States of America in Congress assembled. v. Comvallis: English Language Institute.). using the words "And be it furtherenacted.See. R. 6. I0. London: Oxford University Press. (1982). 2nd ed." in addition to the general enacting words at the commencement. (1978). L. Jennings 119651 2 (All EnglandReports 714). Formerly. Bennion. L. Blackwood I (CommonwealthLaw Reports [Australia]39). Derham.see Chanter v. in their different areas. S. (1852). Language in the legal process. for shall construedas discretionary. which have a specified. In some jurisdictions. 1973. proponentsof American Legal Realism. Dale.31. A plea for excuses. London:Oyez Longman. London: Butterworths. Legislative expression. David.22. 335-398..THE LANGUAGE OF LEGISLATION language in legislation that a decision about language becomes a decision about the roles of fundamentallegal and political institutions. The works of JeremYBentham. In particular. the professionof draftingis not so centralisedand laws may be draftedby many different people or groups of people acting either privately or professionally. Easificationof legislative texts. Drafting. Bhatia. The importanceof language. There now exists a small class of statutes. Newport Corporation  Appeals Court [United Kingdom] at 189-90). Coode. and to Professor D. Black (ed. A.D. Austin himself drew many parallels between the special usages of law and the speech acts of ordinarylanguage(1962:7. 9. G. Edinburgh:William Tait. If the latteris the correctassumption. D. London:Oxford University Press. V. Oregon State University. in particular. (1983). Barfield. called sunset legislation. ed. Sydney: Butterworth. Major legal systems in the worldtodav. Bentham. F. or thatthe enacting formulais to be understoodbefore each section. London: Longman. 175-204. D. London:Stevens and Sons. K. (i969). It has been noted that Austin at one stage worked very closely in Oxford with the legal philosopherH. limited duration(Enright 1983:95). 8-9. Law and Societv Review 14 (3):445-563.see Baron Inchvra v. The similaritiesof approach between the two. Historically. D. (1971). J. 3.." 4. In the United States.
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