Monday November 20, 2017 15:32 pm 
 

Law Drafting Process

Confucius said, “When the State of Zheng formulates a law, Pi Chen first makes a draft, and Shi Shu gives his comments. Then the draft will be edited by Zi Yu and finally the draft will be polished linguistically by Zi Chan. The documents of law formulated by these four wise officials seldom contain mistakes.” (Analects 14.8)

What a state of bliss ! Any law drafter would be proud to be part of such a team. Actually, it’s not clear which of the four wise officials is the policymaker, which is the drafter and which is the enacter. But perhaps that is a mere quibble; the amazing thing is, the team seldom made mistakes when drafting laws.

Unfortunately, in the modern world things are not so simple and the laws produced by legislatures do sometimes contain mistakes. Judges usually imply that they are the fault of ‘the draftsman’. In the case of Mirvahedy v Henley and another (Times LR 24 March 2003) Lord Nicholls, commenting on section 2 of the Animals Act 1971, said, “Unfortunately, the language of section 2(2) is itself opaque. The draftsman’s zeal for brevity has led to obscurity. Section 2(2) has attracted much judicial obloquy.”

But the fact is that legislation is the product of a process involving policymaking, drafting instructions, comments on a series of drafts, consultation with interested parties, and scrutiny by the legislature. If there are defects in the legislation at the end of that process, they cannot be blamed solely on the drafter of the Bill.

The following pages show the nature of the law drafting process:

Drafting of Laws
We Need a Law

The pages in this section contain Microsoft® Power Point® Presentations, and as such, open on a new page.

 

Links

~ Drafting of Laws
~ We Need a Law

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