A linguistic Insight into Legislative Drafting

Acknowledgements

This book results from a long-lasting research interest of mine in specialized discourse and, particularly, legal language and legislation. Over the last ten years, I have explored legislative texts in English-speaking countries and carried out several studies in the UK and European legislation both at the Department of Political Science at the University of Palermo (Italy) and the Institute of Advanced Legal Studies (IALS) – at the University of London (UK). Students and colleagues have been involved in many of the research projects which I have directed at these universities. It would take quite some time to enumerate all the persons and scholars in different parts of the world with whom I have had inspiring conversations and correspondence, but I would like to thank them all for the contributions they have made.

Introduction

Legal English originates from different sources that have influenced its style. Historically speaking, legal English evolved over the three-century period between the 1470s (the setting up of the first printing press in England) and the 1770s (the American Declaration of Independence). Unsurprisingly, its terminology and style are still in the form they had reached by the early years of the 19th century. Traditional legal language has been increasingly challenged in all the major English-speaking countries, and this questioning has brought about important changes in the length and layout of legal documents (e.g., normative texts). Many of these changes have been stimulated by the Plain Language Movement of the latter decades of the 20th century. Despite these important transformations, legal language has remained largely frozen in time.

The main lexico-grammatical features of legal writing are usually characterized as follows: inclusion of archaic words and foreign expressions especially from Latin and French; frequent repetition of fixed syntactic structures; long and convoluted sentences with intricate patterns of coordination and subordination; a highly impersonal style of writing and a tendency towards nominalization.¹ Written legal texts do not necessarily contain all the features mentioned above, though many of them do, and the compound effect often makes deciphering them extremely difficult without specific training (Williams 2004). Indeed, certain types of legal writing present features that render the texts so peculiar at times that they are incomprehensible to anyone except legal experts.

Much of the criticism that legal English has attracted is clearly reasonable in that it is objectively difficult for the layperson to understand it, particularly when they are dealing with legislative texts and norms. There are inherent factors that make it difficult to convey the intentions of the legislator and ensure there are no ambiguities in the words and expressions chosen by the legislative drafter (Mousmouti 2019). Complex societies make increasing political demands to produce legislation quickly and efficiently, whereas the lack of effective consultations between policy makers and drafters certainly affect the language used and the underlying function of the text.

The need to produce better legislation cannot be met without the help of other disciplines such as Linguistics, with profitable cooperation between linguists and legislative drafters, a careful analysis of several aspects of the drafting process, and the application of linguistic tools when formulating legal provisions that aim to be communicatively effective (Bhatia 2010, 2014; Engberg 2013b; Gotti 2014; Endicott 2022).

Legislative drafting is a very complex task, given that the formulation of legal norms is conditioned by the different cultural, linguistic and legal environments that inform them. In the case of common law systems, their adversarial nature is reflected in the drafters’ stylistic choices featuring very long sentences traditionally consisting of three (or more) main clauses, each modified by many subordinate clauses (Gotti 2014). The need for provisions to be all-inclusive, precise and clear (Bhatia 1987, 1993, 2004; Campbell 1996; Tiersma 1999) results in an increase in sentence length, the great number of inserted parts, detailed terminological explanations, and the use of past-participle clauses to state clearly the source of the qualification of a term. For instance, the intention to cover as many specific cases and interpretations as possible is evident in the number of definitions and explanations normally present, combined with the explicit indication of the limits of applicability of the norm. In the last few decades, the Plain Language Movement has strongly influenced legislation in common law systems, as can be seen in the formulation of norms and regulations instructing legislative drafters to adopt simpler and clearer writing.² An increasing number of guidelines for better legislative drafting have been provided with the purpose of achieving a greater degree of clarity and consistency, and these have been exceedingly influential in introducing significant innovations in law-making with a consequent improvement in the quality of legislation. Thanks to criteria such as a smaller number of words per sentence, the extensive use of simple and compound sentences, and the adoption of a common lexis, to name just a few, laws have become more accessible to laypeople.

The adoption of these practices, though, is not in itself a guarantee of a completely successful result. Legislative drafters deal with an unlimited universe of human behaviour, in the sense that it is impossible to predict exactly what may happen in the real world (Bhatia 2021; Endicott 2022). Law-making embraces the whole process ranging from the conceptualization of legislation until its very implementation, whereas legislative drafting is limited only to the drafting process. This does not mean to say that drafting is completely foreign to the legislative process. In fact, the drafting process is part of the legislative process, which in turn is part of the policy process (Stefanou 2011; Xanthaki 2014). At this point, it becomes crucial to consider the context of a legal document, and/or the legislative discourse, in order to shed light upon ambiguous and obscure provisions.

The purpose of this book is to explore firstly, the origin of legislative drafting in common law tradition, i.e., Westminster and the UK Parliament, and the organization of the drafting process, in order to acknowledge how policy decisions originate and are finally transformed into legislation and written norms. If we consider, on the other hand, legislative process in relation to ‘context’ at different levels, such as the situated communicative event, the environmental framework (i.e., the workplace, the organization, the discipline), and the societal framework (i.e., the legal-political, socio-cultural, and linguistic frameworks), it becomes possible to reach a deeper understanding of the development and constant change of the final product, viz., normative texts, over the last fifty years.

The book is divided into six chapters. After an introductory section, Chapter 1 deals with the topic of providing definitions of the legislative drafting, outlining some trends in discourse analysis, sociolinguistics and textual analysis, and suggesting interesting features of the legislative process in relation to contexts at different levels. Chapter 2 presents a methodology to explore legislative drafting as a professional language/professional discourse in relation to the (i) situated communicative event, (ii) the environmental framework, and (iii) the societal frameworks. Chapter 3 explores the origin of legislative drafting within the common law tradition and its subsequent growth at the Westminster Parliament (i.e., Office of the Parliamentary Counsel, hereafter OPC). Chapter 4 delves into the analysis of the drafting process ‘tout court’ and the modern drafting techniques adopted for the UK Primary legislation. Chapter 5 considers the recent development that legislative drafting has undergone due to the pressure of the Plain Language Movement at international level, and the ‘good law project’ at the UK (i.e., Westminster Parliament) level, focusing on the linguistic features of the final product, i.e. a corpus of legislative texts (UK Primary and Secondary legislation). Finally, Chapter 6 summarizes the findings and presents some final remarks for future research.

1 The Oxford English Dictionary defines nominalization ‘a type of word formation in which a verb or an adjective or other part of a speech is used as or transformed into a noun’.

2 For example, some Offices of Parliamentary Counsel of various English-speaking countries (e.g. Australia, New Zealand, Scotland) specify in their websites that their drafters adopt plain language techniques.