Does the Plain Languge Movement for writing of laws, require Cooperation from the drafters as well as the Courts? As the movement is likely to fail if the plainly drafted law, that is so written for a plain man, is not interpreted by the Court plainly (literal rule) as understood by a man of ordinary prudence. OR this situation casts more burden on the drafters to be more vigilant in drafting so that the Court need not wnader around the rules of interpretation that are foreign to the prudence of ordinary man.
Plain Language Movement, makes the job of the drafter more complex; but the law, to be plain.
I have never liked the idea of a pressure movement for plain language drafting - because it should just be taken as an essential aim of the job to draft in the simplest and clearest language possible, in the context of the material in question and the likely target audience.
ReplyDeleteDaniel's point about the likely target audience is important here. The requirement to draft as simply and clearly as possible is always present. However, that may mean very different things in the context of an Act creating a new criminal offence of damage to property while under the influence of alcohol or drugs and an Act imposing a new tax on specified types of foreign exchange transaction by hedge funds. The first potentially affects everyone and should be drafted with that in mind. The second is of direct relevance to a very small number of people and it may be appropriate, and indeed necessary, to draft in terms that would be incomprehensible to anyone other than a hedge fund manager or specialist lawyer.
ReplyDeleteIn more academic terms, we ought to consider the semiotic community that the law is targetting - so hedge fund managers will understand legislation that the average person can't.
ReplyDeleteHowever, there are two problems with this. Firstly, it is the legislators who have to pass the law in the first place. Are we going to patronise them by asking them to pass a law that they can't understand? This doesn't say much for democratic legitimacy of the law.
Secondly, if it is a criminal law (for example tax evasion of the new hedge fund tax), then the jury will also need to understand the law. If we draft solely for sophisticated users of the law, we make it even more incomprehensible for others who will occasionally have to use it.
My reading of the Plain Language principles is that they are useful guides to improve the quality of legsislative, but that if they become prescriptive and require automatic application, then they lose this benefit. A useful tool for the drafter but not an absolute obligation.
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ReplyDeleteI think that Mazhar refers to the dual complexity of legislative practice: complexity of the text of the law plus complexity of statutory interpretation. This is a very real issue of course. My take on this, for what it is worth, is that a good law should allow very little scope for interpretation by judges. In other words, if one combats complexity at the root [the text], then one diminishes secondary complexity also.
ReplyDeleteI remember during my training for admission to the Bar a 'talk' from the Plain Language people, followed by an 'optional' exercise in attempting to draft in that style. What was clear to me was that quite a few of the advocates for Plain Language seemed to care little for, in not actively dislike, a desire for clarity or precision. Readability was all, and readability was defined, it seemed to me, as fewer long words and more full stops, regardless as to whether that served the purpose of the draft.
ReplyDeleteIt has left a poor taste in my mouth, as it were, for their lobbying efforts ever since. I accept Ronan's point that Acts are made to pass, but I cannot see how even that can justify a lack of precision or accuracy.
That is a very good movement for a plain language legislation but it should be noted that the judicial arm is saddled with the responsibility of interpreting the wordings of a Law or legislation regardless of whether the legislation is plain or not. Therefore the issue of plain legislation is timely and it will help in understanding the content of a particular legislation by any person and it will promote public participation in law making process.
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