Altering Legislative Drafting Styles

 

I. Introduction

Law made simply to communicate what people should or should not do. In general, “the ideal process” of law making is supported with an academic report which is a result of research and study on the urgency of the law, in term of philosophical, juridical and sociological context.  Instead of being a justification for the making law process, an academic report, helps the drafter in directing drafting process. While the political substance determined by the law maker (parliament and government), In the drafting process, a drafter has to write the structure of the law, compose the rules in appropriate sentences; review substantial and technical content and lastly, do legal proofreading to avoid the mistakes of drafting.

There are many different methods of drafting laws; every country has its own style/method/technique/system/way performing the rule to regulate its people. Every style has advantages and disadvantages. In fact, there is growth in the drafting law system as a result of the concern of the quality of legislation according to the ultimate purpose of legislation making, but the major systems that represent the world styles in drafting law are the styles of the common law system and the civil law system. Both styles, which are some lawyers assert the differences and sometimes contrast them with one another, have specific characteristics and similarities. 

Even though there are lucid distinctions of both drafting techniques, there is always a possibility to combine or alter them. Campbell (1996, p.4) introduces the idea of altering drafting styles. The principle difference between the two systems is related to the content of law. The content has basic identifying aspect of the law system in every country and it might be difficult and complicated to change the content. However the drafting technique emphasizes the technical matter of the drafting process. That is why it is possible to mix both styles. Debaene et al in “Legislative Technique as Basis of a Legislative Drafting System” state that it is common knowledge that legislative technique rather concerns the form, shape and layout than the content of a bill. (1999, p.24)

Based on the fact that the development of law drafting is still improving till now, is there any chance to combine different styles? is it a must for drafters to choose one style only and separate both styles? According to these questions, this paper mainly aims to discuss the opportunity of altering drafting law technique. This paper will analyze each style, the differences and its historical background, the advantages and disadvantages and propose the discourse on combining technique by testing the effectiveness of this method to accomplishment the purpose of law making.

II. Historical Background

There are historical backgrounds of the distinctions on two main legislative drafting styles which are stranded in distinguishing political, cultural and institutional aspects. The differences were well-established by distinct political histories; 18^th century revolution initiates codified rules and a bureaucratic sight of court as mechanism of supremacy of the democratic state. In history, the classical Roman approach strongly influenced European law which represents in judicial institutions and a systemic and honorable legal technique. (Campbell 1997, p.1)

England is the stem of the common law tradition, on the other hand, Continental Europe, particularly France, is the adherent of the civilian style of drafting.  Apparently, In England, the law functioned to limit state power; the common law had a vital position to restrict the king and the parliament. Furthermore the English/Australian drafting style was established from the 18^th century when legislation was the secondary reference of the courts after the common law. As a Consequence, drafters should be really careful in performing law; they especially have to be more detailed in law making requisites including meticulous provisions of truthful conditions and their legal consequences, in order that the court has no possibility to implement it rather than existing common law. (Campbell 1997, p.2)

Basic principles in the common law had been formed from the accrual of personal precedents, decided gradually over long time of period, then being the foundations for universal principles. The system of strict precedent and court hierarchies has created a legal method which is disciplined, practical and commonly conventional. On the other hand, codified or civilian law interprets all legislation by fundamental assumption that the specific legal provision is no more than a component of general rule that aims to cover all legal relations within the public. In this case, using analogies from other legislative enactments could happen. Sometimes decisions are persuaded by the previous one although it does not compel a judge to follow it. Moreover there may be modifications to adjust the current ideas of justice. Norman S. Marsh in Campbell’s article states that, “it is the function of the judge to cooperate with the legislature in providing through interpretation a systemic treatment of the whole field of legal relationships”. (1997, p.1-2)

III. Altering Drafting Style

Based on the background of the establishment of both law systems, each system has a specific style of drafting. The civilian tradition (“fuzzy” law) tends to stress sincerity and generalization, performs a common set of guidelines in the perspective of extensive legislative intentions, while the common law tradition (“fussy” law) emphasizes accuracy, particularity, and detailed distinction on specific circumstances. The fussy law style could result in certainty and foreseeability because it is usually exhaustive and comprehendable in every imaginable situation. In addition, it could control the judicial practice, coming to a decision. On the contrary, this style contains some weaknesses such as causing an increase of an enormous volume of law, emerging difficulty of explaining the reasons of legislation, less educative than well expressed general principles, difficulty in filling gaps in the law for various and similar cases all at once which could be covered in one umbrella legislative intent, and lastly, slow to respond to changed conditions while the civil law drafting style gives more room to move and adapt to developing case by general stated statutes. (Campbell 1997, pp.2-3)

According to Shael Herman in Campbell’s article (1997, p.2), the differences are not superficial matters, there are distinctive judicial attitudes, political expectations and legal procedures in which legislator and judge perform their roles which become the reason behind the divergences. However, some say that it is overstated to declare the differences. Jery Payne in his article, “The Drafting Critique” criticizes people who see a choice between “clarity” and “accuracy” in drafting (between fuzzy and fussy styles, between common and civil law). Payne supports his argument with his own experiences. He believes that being totally accurate is almost impossible (2005, p.2). In addition, the parliamentary system often encourage debate on specific clauses and then political interests from parties which result in accumulation of detailed provision cannot be eluded, that is why a drafter is not the only player who determines what kind of styles appear in the draft bill. Discussion at the deliberation stage can make any changes from fuzzy to fussy and vice versa.

Altering drafting style is considered a complicated matter, because of the differences of both styles and its historical background. Shifting drafting styles will require a big change of system and a radical rearrangement of the function and role of judiciaries and legislatures. Nevertheless, Campbell does not deny that one of the significant benefits using more fuzzy styles is that it could decrease the volume of law, furthermore the public have more access to the law and understand its meaning without the lawyer’s help, (Campbell 1997, p.4) because statute is not only for the lawyers, the public is the object and at the same time the subject of law.

Again, Payne convinces that there are new problems for drafters when the common law is replaced with codified law. They have to be more perfect; writing statutes definitely and accurately. This usually brings about overstating, creating inaccuracy, and overdescribing that often cause misunderstanding for the readers. The fact is they do not reach precision and clearness but imprecision and misdescription (Payne 2005, “The Conservation of Ambiguity”, p.5). A very significant target of drafting is to be precise; Payne in another article believes that “accuracy is an impossible god to master” (2005, “The Drafting Critique”, p.3).  There is no guarantee that using long sentences will make a draft more accurate. The extra words create extra chances for misapprehension. On the other hand, drafter cannot always make a simple sentence for a multifaceted problem. Drafters should not sacrifice clarity to get accuracy. A certain level of accuracy is important, but it is almost impossible to obtain perfect precision. However, drafting law is like creating a piece of art, while the art of writing is finding the most favorable number of words to communicate as much accuracy as possible to the reader. Writing law briefly can be also graceful in appearance. He reminds us that the main purpose of drafting is to communicate a rule effectively; we can choose the appropriate method to accomplish this goal. While ordinary people are likely to obey statutes; they are authorized, required, forbidden and punished based upon statues. Do they have to always employ the lawyers for making decisions? (2005, “The Drafting Critique”, pp. 2-3). Even though his notions look ambiguous, he tries to balance the different ideas and focuses more in attaining purpose of law drafting.

It will take a long time to discuss whether law style is more appropriate in drafting. Each style has advantages and disadvantages at the same time. More considerations on the elements of general principle drafting will upgrade the quality of law. Actually, the quality problem is the real problem of both law system while the quality of law is related to the capability of law to perform its function, its purpose, its objective. A drafters’ primary obligation is to communicate the rule effectively. How can the content of such rule be delivered to the public smoothly, clearly and enforceable?  The set of rules a drafter should examine complying the norm content that transform into the bill can be referred as ‘legislative technique’. Debaene et al. (1999, p.2) define legislative technique as: “ a technique that by the application of a set of rules leads to correct formulation and design of a pre-set norm content, resulting in a juridical-technical harmonization of the norm in itself and in relation with other norms”.

The design of legislation which is sentence structure, choice of language, clarity of the objectives, executeability and enforceability, effectiveness and efficiency, and so on, can be accustomed to the objective of the law making. Campbell (1997, p.5) proposes some alternatives for a win-win solution. For instance, for family law matters or tort where need to test lots of discretion and in some cases where good faith is the most important thing; such as particular business contracts of ongoing relations among parties, -that such kind of private relations,- could be more suitable to be administered by fuzzy law. On the other hand, for fiscal and other public law statues which have prerequisites, such as deductions and exemption from tax and of the eligibility for payment, could use fussy law. In case for anticipating and preventing efforts of manipulating law and avoiding of obligations by those who try to “buy” court case, using detailed “fussy” drafting also proper to do.

IV. Conclusion

Actually, the fact of altering the styles of drafting appears nowadays in the legislation of Indonesia. As we know, Indonesia is the adherent of civilian law system, relating to the historical background that Indonesia inherits the Dutch law system. Most of laws in the Indonesian legal system perform the civilian style for instance, the penal law (KUHP) and the compilation law on agrarian affairs. Nevertheless, after the global reform in Indonesia, particularly in law reform, there is a tendency to make a specific law with detailed distinction on specific circumstance which is one indicator of fussy law style, for instances; the law on money laundering and the law on domestic violence. This phenomenon may improve and result in a totally new style in the future, because the drafting law and law it self have a probability to change according to the changes in society.

Realizing benefits and difficulties of fuzzy style, fussy style and combined law style of drafting can help drafters to choose the appropriate way to deliver their ultimate purpose in drafting bills. The discourse of altering drafting styles is an exiting offer to be implemented. Follow the general principles of legislative method which always refers to achieving main objective of each law that must be quite different among different law, is a win-win solution.  There is always a possibility to take the most appropriate style, whether fussy or fuzzy or both. However, this discourse sets several home work aside for both drafters and legislators, they have to cooperate and be open minded to big changes in judicial and legal attitudes because one consequence of breaking the embedded tradition is readiness to face different phenomena . 

Bibliography

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Campbell, Lisbeth 1996, Legal Drafting Styles: Fuzzy or Fussy?, Murdoch University Journal of Law, Vol.3, No.2, July, viewed 16 March  2006 <http://www.murdoch.edu.au/elaw/issues/v3n2/campbell.html>.

Debaene, Stjin et al. 1999, Legislative Technique as Basis of a Legislative Drafting System, in: H.Jaap van den Herik et al. (eds), Legal Knowledge Systems, JURIX 1999, The twelfth Conference, Nijmegen: GNI

Payne, Jery 2005, The Drafting Critique, The Legislative Lawyer, Vol. XVII, Issue.2, viewed 24 February 2006  <http://www.ncsl.org/programs/legman/legalsrv/lssshome.htm>.

--------- 2005, The Conservation of Ambiguity, The Legislative Lawyer, Vol. XIX Issue 2, viewed 24 February 2006 <http://www.ncsl.org/programs/legman/legalsrv/lssshome.htm>.

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Stark, Jack. 1997, A tool-box approach to “shall”, The Legislative Lawyer, Vol.11, No.1, viewed 20 March 2006 <http://www.ncsl.org/programs/legman/legalsrv/vol.11.No.1 htm>.

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[1] Writer is Legislative Drafter of The  General Secretariat of The DPR RI, Melbourne  Law School’s alumni (Melbourne University)  2007.