Obscurity and Clarity in the Law

Prospects and Challenges

Sophie Cacciaguidi-Fahy, Anne Wagner

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781351914208
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This book explores the intricate and multi-dimensional conception of clarity and obscurity in the law. It presents and examines the most recent research and theories, giving practical guidance on how to avoid obscurity in legal drafting and its impact on legal interpretation. The book is aimed at a multidisciplinary audience and seeks to promote an interdisciplinary debate on clarity, law and language, calling for the moving of clarity beyond the study of plain language. The aims of the book are thus two fold. The first is to critically reach a nexus between the disciplines of law and language with respect to the debates on clarity in legal discourse. The second is to achieve an international perspective on the issue, drawing from a wide range of legal and political contexts.

PART 1
Crossroads Between Law and Language

Chapter 1
The Ambiguous Principle of The Clarity of Law

Alexandre Flückiger¹

The ambiguous principle of clarity

A proponent of plain language legislative drafting has admitted to entertaining a dream:

Like a poor man’s Martin Luther King, I have a dream. It is that every person of reasonable intelligence and literacy may sit at their kitchen table and open a small book or CD-ROM in which the most important laws that govern them are clearly and simply written in their original, unabridged form. I have that dream. But we stand a long, long way from making it reality. Indeed, I sometimes think the prospect is daily receding (Cutts 2000, 11).

Is such a vision realistic? An historical review shows that the requirement to draft clear legislation is more than a contemporary legistics issue (Mertens 2004, 354ff, 380ff). Its continual resurgence over the centuries stands as evidence that legislative clarity has never been achieved definitively.

In this chapter, I will defend the thesis that the impossibility of achieving the ideal of clarity stems from its intrinsic ambiguity. Clarity can in fact be understood, as the above quotation suggests, from the linguistic perspective of readability, simplicity and conciseness. Yet it can also be seen from a more legal perspective: that of concrete applicability, with emphasis on precision of wording. Under this second meaning, a text is clear if it provides the reader, immediately and unequivocally, with a precise solution in a concrete case. Thus the conclusion is that, paradoxically, the principle of clarity is not as clear as it would first appear, since the two above-mentioned perspectives conflict: in pursuing one, the legislative drafter will necessarily overlook the other. The text will be clear in one sense, but obscure in the other, and vice versa. To illustrate this ambiguity, after examining the extent to which the principle of clarity is imposed on the legislator, I will examine successively the linguistic aspect and the legal aspect of the clarity requirement, followed by the resulting conflict.

Legislative clarity: a principle of legislative quality

The requirement to draft clear laws stands in counterpoint to a long tradition of criticism with respect to legislative production, whose evolution in quality, some claim, is inversely proportional to its quantitative development. Referring to a golden age of legislation, which has likely never existed given the persistent criticism of legislation over the centuries, numerous authors find a deterioration in contemporary law, citing such concepts as a pathology (Mathieu 2004, 71ff), a decline (Capitant 1917, 305ff),² a crisis (Viandier 1986),³ and a sickness (Lasserre-Kiesow 2005) of law. This criticism is not easily summarised, as it concerns points as diverse as the unintelligibility and obscurity of norms (see Green 1993; Knaack 1993; Endicott 2005; Wagner 2005b), legislative proliferation or inflation (see Mathieu 2004, 76; Bergeal 2006),⁴ and the ineffectiveness of law (see Berriat-Saint-Prix 1835; Gény 1922; Solan 2004; Cortese 2005), to mention only the most prominent.⁵

However, two reservations must be mentioned regarding these invectives. The first is the fact that the criticism may have been considered, politically, as associated with liberal doctrine (Courvoisier 2000 as cited in Mathieu 2004, 73). Here, the role of law as an instrument of public policy management has in fact been challenged (Papadopoulos 1995; Willke 1997; Arnaud 1998; Morand 1999a; Ost and Van de Kerchove 2002; Chevallier 2003, 89ff) in favour of various attempts at deregulation and privatisation,⁶ which thus far have not led to the anticipated results.⁷ The second reservation relates to the evolution of society, which has become more technical, complex and fragmented yet increasingly globalised. Such a society can no longer be run in an hierarchical, authoritarian and unitarian manner by ‘laws’ whose obligatory, general and abstract nature conflicts with a new order that more resembles a network than a pyramid (Papadopoulos 1995; Willke 1997; Arnaud 1998; Morand 1999a; Ost and Van de Kerchove 2002; Chevallier 2003, 89ff). The complexity of law is but a reflection of our complex world.

These critiques stress, in contrast, what a good law should be. However, the wide range of criticism complicates this task. As a result, legislative quality is inevitably a plural concept managed by a plurality of organisations.

The Organisation for Economic Co-operation and Development (OECD) insists on the improvement of law as an instrument of public policy management by proposing regulatory quality management, a new concept intended to lead to deregulation:

Early notions of “deregulation” or “cutting red tape” quickly gave way to ideas of regulatory reform, involving a mixture of de-regulation, re-regulation and improving the effectiveness of regulations. However, these conceptions of reform also assumed that reform was episodic in nature, and aimed to restore the regulatory structure to some optimum state through a one-off set of interventions. Experience soon demonstrated that such views were untenable. Thus, they gave way in turn to the concept of regulatory quality management (OECD 2002, 16).

The European Union, for its part, succinctly summarises the facets of the issue in two agreements: the Interinstitutional Agreement on Better Law-Making (European Union 2003) and, concerning drafting in particular, the Interinstitutional Agreement of 22 December 1998 on Common Guidelines for the Quality of Drafting of Community Legislation (European Union 1999 [the Agreement on the Quality of Drafting ]). Both texts state that quality of legislation is measurable based on criteria that can be described as legal, factual, or drafting-related:

• The legal criteria for quality legislation are democratic legitimacy, subsidiarity and proportionality, and legal certainty […] and the utmost transparency of the legislative process (European Union 2003, articles 2, 10, 11).
• The factual criteria, for example. criteria for assessing the law’s capacity to influence facts, are effectiveness, measured by evaluation (European Union 2003, articles 15, 27-30), and simplicity of action (European Union 2003, article 12).
• The criteria for quality of drafting are clarity, simplicity and consistency (European Union 2003, articles 2, 25, 31, 35; European Union 1998, articles 1, 5, 6), as well as conciseness (European Union 2003, article 35; European Union 1998, article 4), precision,⁸ and a reduced volume of legislation (European Union 2003 article 35).

A reading of the above criteria shows that these principles are interrelated, and thus cannot be considered in isolation. Although some principles support others – such as precision, which contributes to legal certainty, or a reduced volume of legislation, which can also be viewed as an expression of subsidiarity – other principles conflict, as we will see later for conciseness and precision.⁹

This chapter will focus on a single aspect: clarity of law, or legislative clarity. An examination of this requirement – an ambiguous one, as we will attempt to show – leads to an understanding of why it is so difficult to master the drafting of legislation.

Sources of the principle of legislative clarity

A jurilinguistic requirement of formal legistics The requirement of legislative clarity is a precept of formal legistics, that is the branch of legistics that focuses on principles for improving the communication and understanding of laws (Morand 1999b, 18), subjects of jurilinguistics (Gémar and Kasirer 2005). Over time, the clarity requirement has also become a legal principle essential to the legislator in varying degrees, through either legistical directives published by public authorities or the development of national and international case-law.

Legistical directives: European Union, Switzerland, France In Community law, the Interinstitutional Agreement on Better Law-Making states that the three institutions of the European Union (the European Parliament, the Council of the European Union, and the European Commission) ‘further agree to promote simplicity, clarity and consistency in the drafting of laws’ (European Union 2003, article 2) and ‘will ensure that legislation is of good quality, namely that it is clear, simple and effective’ (European Union 2003, article 25). The clarity requirement had been set out earlier in the Interinstitutional Agreement of 22 December 1998 on Common Guidelines for the Quality of Drafting of Community Legislation (European Union 1999). The requirement of clarity goes hand in hand with the requirement of simplicity and precision: ‘Community legislative acts shall be drafted clearly, simply and precisely’ (European Union 1998, article 1).

In its preamble, the Agreement on the Quality of Drafting states the ratio legis for this triple requirement of clarity, simplicity and precision, which aims to help the general public better understand laws, as well as to make the application of legislation more consistent and to improve its implementation:

Clear, simple and precise drafting of Community legislative acts is essential if they are to be transparent and readily understandable by the public and economic operators. It is also a prerequisite for the proper implementation and uniform application of Community legislation in the Member States (European Union 1998, preamble (1)).

The Agreement on the Quality of Drafting directly links the requirement of legislative clarity to that of the foreseeability of law:

According to the case-law of the Court of Justice, the principle of legal certainty, which is part of the Community legal order, requires that Community legislation must be clear and precise and its application foreseeable by individuals. That requirement must be observed all the more strictly in the case of an act liable to have financial consequences and imposing obligations on individuals in order that those concerned may know precisely the extent of the obligations which it imposes on them (European Union 1998, preamble (2)).

In Swiss law, the Guide pour l’élaboration de la législation fédérale [Guide de législation] lays down similar principles. It states that

the language of law, as opposed to that of poetry, for example, must be clearer, less vague, and as direct as possible. Its characteristics are therefore: the need for a good prior grasp of the normative matter; consistency; clarity; conciseness; respect for any pre-existing terminology framework (Switzerland, Federal Office of Justice 2002, 365) (my translation).

and specifies that clarity ‘is the chief quality of a normative text’ (Switzerland, Federal Office of Justice 2002, 367) (my translation).

In French law, the Guide français pour l’élaboration des textes législatifs et réglementaires (2005) was drafted jointly by members of the Conseil d’Etat and officials of the Secrétariat Général du Gouvernement. It mainly brings together the circulars of the Prime Minister, notably the Circulaire du 30 septembre 2003 relative à la maîtrise de l’inflation normative et à l’amélioration de la qualité de la réglementation [circular of September 30, 2003, respecting control of legislative inflation and improvements to regulatory quality] as well as case-law and the reports of the Conseil d’Etat and the Conseil Constitutionnel. In the chapter on legislative drafting, the guide states that

the drafting of a bill and its accompanying document (preamble or presentation report) must be clear, simple, and grammatically correct (France, Secrétariat général du Gouvernement and Conseil d’Etat 2005, record 3.3.1, 189).

The requirements of case-law: Switzerland, European Union, Council of Europe, France) The principle of legislative clarity has been recognised in case-law mainly in terms of concrete applicability: the law must be precise enough for the accused to understand his or her rights and obligations in a concrete case. The Swiss Federal Supreme Court deduced this from the principle of legality (article 5 of the Federal Constitution). For example, in the area of public contributions, it requires that the purpose of the income tax be identified in the law with ‘appropriate clarity and precision’ (Eidgenössische Steuerverwaltung v. AG, Federal Court 2A.542/2002, consid. 3.4.1).¹⁰ More generally, the Federal Supreme Court has stated that the greater the severity of an offence, the more precise the legal basis must be (X. v. Stadt Chur, Federal Court 129 I 161, consid. 2.2, 163).

The Court of Justice of th...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Foreword
• Table of Cases
• Lists of Conventions, Legislations and Rules
• 0 Introduction: The Chiaroscuro of Legal Language
• PART 1 Crossroads Between Law and Language
• PART 2 An International Perspective
• Bibliography
• Index