LGST 551
Introduction to Legislative Drafting (OCW)

 

LGST 551
Introduction to Legislative Drafting (OCW)

Study Materials

Module 1: Section 3

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Why do we draft as we do in parliamentary systems?

Drafting styles in jurisdictions based on the parliamentary system, like the common law itself, have their roots in the English legal system. Again like the common law, legislative drafting has evolved over a long period of time and through the experience brought by legislative counsel working in many jurisdictions. Practices that are now taken for granted are often best explained by their historical origins. In learning how to go about the task today, it helps to have an understanding of the factors which have led to present practices.

We need to think critically about the way legislation is drafted in order to see where sensible improvements can be made to inherited drafting practices. If we are to do that, we must have a clear idea as to the objectives we should be seeking to achieve whenever we are drafting a piece of legislation.

Section Objectives

By the end of this Section, you should be able to do the following:

  • describe the way legislative drafting developed and how that development has influenced the way that we draft today;
  • provide an overview of the principal characteristics of legislative drafting in parliamentary jurisdictions;
  • establish the principal objectives for which legislative counsel should work and the fundamental practices that are most likely to contribute to achieving them.

Essential Questions

This Section is divided into four subsections organised in terms of a series of questions:

  1. historical development of legislative drafting
    • Where did drafting begin?
    • How did drafting develop in the 19th Century?
    • How did drafting develop in the 20th Century?
  2. theoretical foundations of this form of drafting
    • What were the premises of Coode’s approach?
    • What were Coode’s components of a legislative sentence?
    • What were Coode’s guidelines for forming sentences?
    • How have later legislative counsel built on Coode’s approach?
  3. principal characteristics of this form of drafting
    • What are the principal characteristics of this form of drafting?
  4. drafting objectives
    • How should drafting be oriented in the 21st Century?
    • What do users expect from legal documents?
    • How can we meet these expectations? (Seven Cs of Legislative Drafting)
    • Are the Seven Cs equally important?
    • How can we achieve the Seven Cs? (Seven Basic Drafting Practices)

Studying this Section

This Section probably contains a good deal that is new to you. In particular, it describes the systematic approach developed in England in the 19th century to composing legislative sentences and structuring legislation. This still underlies much of what we do today. We will work with these matters again in Module 2 (Writing Legislative Sentences), when we look at them in more depth. At this stage, it is sufficient to understand the essential approaches described here, rather than to put them into practice. You will have plenty of opportunity for that later. For now, you need to see how these approaches have influenced current practices and given rise to the distinctive characteristics of drafting in the jurisdictions based on the parliamentary model.

This Section also looks at the qualities we should be trying to incorporate into our drafts. These considerations, and the ways in which they can be best addressed, recur throughout the Materials. You will have many opportunities in the Modules that follow to develop techniques for these purposes. Studying this Section is designed to provide you with an initial frame of reference for your subsequent work and with a clear perception of what standards you should be trying to achieve.

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