Drafting Legislation

A Modern Approach

Constantin Stefanou, Constantin Stefanou, Helen Xanthaki, Constantin Stefanou, Helen Xanthaki

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138264632
• eBook ISBN: 9781317148265
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Drafting Legislation sets out to prove Sir William Dale's doctrine that the rules for drafting good quality legislation are the same in common and civil systems of law. Legislative solutions can therefore serve the drafter, the judge and the practitioner of any jurisdiction. The book discusses the general issue of quality in legislation from the legislative process to the actual drafting interpretation and enforcement. It also analyzes topics related to quality in legislation such as clarity, precision and disambiguity, plain language and gender-neutral language and assesses whether Sir William's view of universality in the definition and elements of quality in legislation is right or not. The volume is of critical interest to students and scholars of European law and the philosophy and theory of law.

1 On Transferability of Legislative Solutions: The Functionality Test

Helen Xanthaki

DOI: 10.4324/9781315578026-1

In 1997, Sir William Dale became the first Director of the Centre that bears his name. The aim of the Centre is to promote quality in legislation by identifying and disseminating best practices in legislation. ¹ The logic is that one can and should learn from the experience of others, irrespective of the characteristics and intricacies of their own legal system, irrespective of the financial power of the borrowing legal system and irrespective of the level of development of the legal systems involved. In celebration of the 10th anniversary of the establishment of the Sir William Dale Centre for Legislative Studies at the Institute for Advanced Legal Studies of the School of Advanced Study of the University of London and in the memory of Sir William Dale, this chapter aims to put to the test the very essence of the Centre’s philosophy. Can one really learn from others in the field of legislative drafting? Can legal texts, institutions and legislative solutions be transferred to other jurisdictions? And if so, under which conditions?

1 See Sir William Dale, ‘The drafting of the norm’ in U. Karpen and P. Delnoy (eds) Contributions to the Methodology of the Creation of Written Law (Baden-Baden: Nomos Verlagsgesellshcaft, 1996) pp. 35–8, at 35.

In answering this question, one cannot fail but question the essence of this publication. Are the essays generously contributed to this book in memoriam to Sir William Dale really useful as paradigms of best practices in aspects of legislative drafting and legislative studies? Or does this publication, and the Centre as a whole, continue a vain effort of a brilliant mind to teach what cannot be taught, to disseminate what cannot be transferred?

Transferability in Legislative Drafting

Transferability finds an eloquent supporter with Watson, the guru of transplants. ² Watson, who focuses on the transferability of institutions, solutions and texts in the field of private law, claims that ‘whatever their historical origins may have been, rules of private law can survive without any close connection to any particular people, any particular period of time or any particular place’. ³ Watson could put an end to the questions posed by this chapter before any analysis takes place: if everyone can borrow from everyone else, then transferability can be useful even in an environment of anarchy by comparison. However, the liberal approach of Watson is rejected by Legrand, ⁴ Kahn-Freund ⁵ and the Seidmans, ⁶ who set conditions of transferability. It would be difficult to accept that national characteristics play no part in the transferability of legislative solutions, institutions or texts. It is therefore widely accepted that some prerequisites must be introduced when borrowing takes place. The question is what is the accepted criterion of transferability?

2 For an analysis of the term, see E. Öcürü, ‘Critical Comparative Law: considering paradoxes for legal systems in transition’ 59 (1999) Nederlandse Vereniging voor Rechtsvergelijking; also see E. Öcürü, ‘Law as Transposition’ 51 (2002) ICLQ pp. 205–23 at 206. 3 See A. Watson, ‘Legal Transplants and Law Reform’ 92 (1976) Law Quarterly Review at 80; also see A. Watson, Legal Transplants: An Approach to Comparative Law (Edinburgh: Scottish Academic Press, 1974); A. Watson, ‘Legal transplants and European private law’ Ius Commune Lectures on European Private Law, No. 2, 4 (2000) 4 Electronic Journal of Comparative Law (www.ejcl.org/ejcl/44/44-2.html). 4 See P. Legrand, ‘The Impossibility of Legal Transplants’ (1997) Maastricht Journal of European and Comparative Law p. 111. 5 See O. Kahn-Freund, On Uses and Misuses of Comparative Law, 37 (1974) Modern Law Review at 7. 6See A. Seidman and R. Seidman, State and Law in the Developing Process: Problem Solving and Institutional Change in the Developing World (London: Macmillan Publishers, 1994) pp. 44–6.

Gutteridge, Buckland and McNair accept the use of paradigms under the condition of similarity: like can only be compared with like. ⁷ Like is defined as countries in the same evolutionary stage. ⁸ Teubner and Allison support the conditionality of transferability but apply the exact opposite criterion, namely that of divergence: only differences enhance our understanding of law in a given society. ⁹ Schlesinger rejects the similarities versus differences debate and points out that ‘to compare means to observe and to explain similarities as well as differences’. ¹⁰ This seems to be the prevailing view. One can learn from similar and divergent legal systems and indeed one can borrow similarities and differences. But, if the criterion of transferability does not lie with the comparability of the legal systems involved, what is it?

7See H. Gutteridge, Comparative Law (Cambridge: Cambridge University Press, 1949) at 73; W.W. Buckland and A.D. McNair, Roman Law and Common Law (Cambridge: Cambridge University Press, 1936). 8See C. Schmidthoff, ‘The Science of Comparative Law’ (1939) Cambridge Law Journal at 96. 9See F. Teubner, ‘Legal Irritants: Good faith in British law or how unifying law wends up in new divergences’ 61 (1998) Modern Law Review at 11; also J.W.F. Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law (Oxford: Clarendon Press, 1996) at 16. 10See R.B. Schlesinger, ‘The common core of legal systems: an emerging subject of comparative study’ in K. Nadelmann, A. von Mehren and J. Hazard (eds) XXth Century Comparative and Conflicts Law, Legal Essays in Honour of Hessel E. Yntema (1961); Schlesinger, ‘Research on the general principles of law recognised by civilised nations’ 51 (1957) American Journal of International Law at 734.

The prevailing view in the theory of comparative law is expressed by Jhering, Zweigert and Kötz, ¹¹ who view the question of comparability and subsequent transferability through the relative prism of functionality. ¹² ‘The reception of foreign legal institutions is not a matter of nationality, but of usefulness and need. No one bothers to fetch a thing from afar when he has one as good or better at home, but only a fool would refuse quinine just because it didn’t grow in his back garden’. ¹³ It is the theory of functionality that seems to serve drafting teams in the current period of integrative legal globalisation, ¹⁴ although currently the use of social analysis in legislation is minimal. ¹⁵ Thus, legislative drafters can propose and apply policy, legal and legislative responses already tried elsewhere with unprecedented insight to the results produced in the legal system of origin. Does it really matter where these responses are borrowed from? Not in principle.

11See K. Zweigert und H. Kötz, Einführung in die Rechtsvergleichung, 3. Neubearbeitete Auflage (Tübingen: J.C.B. Mohr, 1996). 12See K. Zweigert and K. Sier, ‘Jhering’s influence on the development of comparative legal method’ 19 (1971) American Journal of Comparative Law pp. 215–31. 13See K. Jhering, Geist des römischen Rechts (1955, vol. 1) pp. 8–9. 14See L.A. Mistelis, ‘Regulatory Aspects: Globalization, Harmonization, Legal Transplants, and Law Reform – Some Fundamental Observations’ 34 (2000) 3 International Lawyer at 1059. 15See J. Brown, A. Kudan and K. McGeeney, ‘Improving legislation through social analysis: a case study in methodology from the water sector in Uzbekistan’ 5 (2005) Sustainable Development Law and Policy pp. 49–57 at 49.

Functionality

A qualifier to Watson’s liberal approach can be introduced via Zweigert and Kötz’s functionality theory. The criterion for the transferability of institutions, solutions and texts is that of functionality. If the policy, concept or legislation of a foreign legal system can serve the receiving system well, then the origin of the transplant is irrelevant to its success. ¹⁶ As long as the transplant can serve the same social need, the transplant can work well in the new legal ground. In fact, it is this transfer of the transplant to national contexts that promotes indigenisation of positive transplants as a block to indiscrete globalisation and modern legal colonialism. ¹⁷

16See S. Zhuang, ‘Legal Transplantation in the People’s Republic of China: A Response to Alan Watson’ (2006) European Journal of Law Reform pp. 215–36 at 223. 17See R. Petrella, ‘Globalization and Internationalization: The Dynamics of the Emerging World Order’ in R. Boyer and D. Drache (eds), States against Markets: the Limits of Globalization (London and New York: Routledge, 1996) at 132.

But is there a unifying factor that can link all legal systems with a web of common functionality, thus justifying this publication and, perhaps more importantly, the existence of the Sir William Dale Centre? In other words, is there a concept which drives national legislative drafters in the performance of their tasks, which is detached from the national intricacies of the legal system, the national drafting style and the policy aims of each national law? Do drafters serve the same conceptual function when drafting legislation? Do they serve a higher virtue which acts as a conceptual framework applicable to all types of legal texts, in all types of legal systems and legislative environments? Of course, asking the drafter to select a single goal to serve in the complex task of drafting legislation has been criticised as simplistic; however, even those who accept the criticism also recognise that serving a single master focuses drafters’ efforts and, consequently, is a better platform for success. ¹⁸ Irrespective of one’s position on the debate, if such a single virtue exists, then it can serve as a functional glue that can justify transferability of texts, institutions, legislative solutions and, consequently, legislative techniques...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Figures
• List of Contributors
• 1 On Transferability of Legislative Solutions: The Functionality Test Helen Xanthaki
• 2 Drawing the Line Stephen Laws CB
• 3 Legislative Intention Ian McLeod
• 4 Legislator’s Intent: How Judges Discern it and What They Do if They Find it Justice Keith Mason
• 5 The Techniques of Gender-neutral Drafting Daniel Greenberg
• 6 Drafting Legislation at the Tax Law Rewrite Project Hayley Rogers
• 7 Retrospectivity in the Drafting and Interpretation of Legislation Lydia Clapinska
• 8 Repealing or Amending Legislation by Non-Legislative Means Alec Samuels
• 9 Pre-legislative Scrutiny Zione Ntaba
• 10 The Role of the Legislative Drafter in Promoting Social Transformation Richard C. Nzerem
• 11 Improving Democratic Development by Better Regulation Ulrich Karpen
• 12 Drafting Principles of Existing European Contract Law Gerhard Dannemann
• 13 Drafting of EU Acts: A View From the European Commission William Robinson
• 14 Drafting to Implement EU Law: the European Arrest Warrant in the United Kingdom Valsamis Mitsilegas
• 15 Procedures for the Approximation of Albanian Legislation with the Acquis Communautaire Alfred E. Kellermann
• 16 Compromise and Clarity in International Drafting Eileen Denza
• 17 Can Legislation Rank As Literature? Helen Caldwell
• 18 Open Management of Legislative Documents Giovanni Sartor
• 19 Between Policy and Implementation: Legislative Drafting for Development Ann Seidman and Robert B. Seidman
• 20 Drafters, Drafting and the Policy Process Constantin Stefanou
• Index