Campbell, Lisbeth --- "Drafting Styles: Fuzzy or Fussy?" [1996] MurdochUeJlLaw 17; (1996) 3(2) Murdoch University Electronic Journal of Law

Legal Drafting Styles: Fuzzy or Fussy?

Author:	Lisbeth Campbell Faculty of Law, Australian National University
Issue:	Volume 3, Number 2 (July 1996)

1. Although the differences are often exaggerated[1], the civilian tradition of legislative drafting favours openness and generality (sometimes referred to as "fuzzy" law)[2] while the common law tradition favours precision and particularity (which may be called "fussy" law). Fussy law concentrates on detailed distinctions thrown up by a focus on specific circumstances. Fuzzy law, on the other hand, provides general principles in the context of broad legislative purposes.

2. These differences go deep into the histories of England, whence stems the common law tradition, and Continental Europe, particularly France, which favours the civilian style of drafting. They are grounded in distinctive political, cultural and institutional factors. Historically, European law was profoundly influenced by the classical Roman approach as exemplified in the Institutes of Justinian, establishing a systematic and principled legal method, an influence which, for a variety of reasons, by-passed English law.[3] The differences between the two systems were further entrenched by distinct political histories, with the revolutionary movements from the 18th century leading to codifications of law and a bureaucratic view of courts as instruments of democratic state power.

3. In England however, the law was seen to provide a limitation on state power with the common law having a central role in constraining first the Crown and then Parliament. Consequently, Australian courts have traditionally seen themselves as limiting the power of the state and have given precedence to the authority of the common law unless statutes clearly and explicitly set aside existing common law precedents.[4]

4. The common law does, of course, have fundamental principles, but these have been arrived at through the gradual accumulation of individual precedents from cases decided over a long period of time, with the sum of individual cases being the grounds for the general principles. The system of strict precedent and court hierarchies has produced a legal method which is detailed, technical and generally conservative.

5. Codified law is quite different. In France, for instance, the interpretation of all legislation is carried out in the light of the fundamental assumption that the particular legislative provision is no more than a part of a general legislative intent covering all legal relations within the national society:

   "it is the function of the judge to cooperate with the legislature in providing through interpretation a systematic treatment of the whole field of legal relationships".[5]

   Analogies are drawn, but they are usually analogies with other legislative enactments. Previous decisions may guide and persuade but they do not bind a judge. Changes may be made to past trends in the light of contemporary ideas of justice. The system is not so thoroughly adversarial but more inquisitorial and administrative. Accordingly statutes are stated in broad terms, to guide and inform rather than dictate judicial decisions.

6. In contrast the English/Australian style of drafting is often elaborate and complex. Explicit certainty[6] is prized above all else and statutes tend therefore to be elaborate and detailed as they attempt to be exhaustive and cover every imaginable situation.

7. This drafting style was established from the 18th century when the courts still viewed legislation as secondary to the common law and as such was to be interpreted narrowly. Consequently, drafters sought to be as specific as possible about legislative requirements so that the courts could not fail to follow them rather than existing common law. Only detailed specification of factual circumstances and their legal consequences could ensure this. By being specific in its instructions to drafters Parliament sought to control judicial construction of its enactments.[7] Courts responded by becoming even more literal and restricted in their readings of statutes thus generating a vicious spiral of convoluted detail which resul ted in the lack of intelligibility referred to by the Renton Report[8] which was set up to address this problem.

8. This extensive elaboration was reinforced by the power of the classical liberal tradition which requires that the liberty of subjects may not be restricted except by clear and detailed legislative requirements. This aspect of the Rule of Law is intended to maximise freedom of choice by enabling the citizen to act in the confidence that her conduct is legal unless it contravenes clear and specific legal rules. Ironically this often leads to such a low level of intelligibility that the certainty and predictability which liberty is said to require is lost in a morass of words. Also, the legislative process in the parliamentary system encourages debate on specific clauses and the political input of so many interested parties leads to an accumulation of detailed provisions.

9. It is thus clear that differences in drafting styles are not superficial matters. They relate to pervasive features of long established legal-philosophical traditions with characteristic judicial attitudes, political expectations and legal procedures in which the roles performed by legislator and judge are quite different: "Thus the division of labour between common law judge and legislator is almost the converse of that embodied in the civil law tradition. Not surprisingly, the judicial approach to statutory construction in the two traditions differs significantly.[9]"

   A. Advantages of fussy law

10. A prime advantage attributed to precise and detailed drafting is certainty and foreseeability of outcome in the great majority of cases. Certainty follows from specifying the factual circumstances in point and their legal implications. It may be initial ly difficult to follow the text but, once understood, it gives definite answers in matters concerning the legal rights and duties of the citizen.[10] A second advantage is democratic control. "To vest decision making in a non-e lected judge or official by bestowing wide discretionary powers on them is undemocratic"[11] as power is transferred from the elected legislature to an unelected executive or judiciary.

11. As American Legal Realists have demonstrated, abstract principles permit of a multitude of different interpretations leading to markedly different outcomes in particular cases.[12] This means that the decisions which impact on p articular parties are made by judges not parliaments. Fuzzy provisions accord the officials responsible for implementing legislation enormous and unaccountable discretionary powers.

12. Finally, the users of fuzzy law have to rely heavily on legal advice to ascertain their rights and duties[13] whereas good fussy law renders such advice unnecessary. With fuzzy law judges are required to rule on particular cases simply to clarify the law. Where litigation does occur, without judicial adherence to the doctrine of stare decisis, its outcome cannot be used to pre-empt future litigation.

    B. Disadvantages of fussy law

13. As the Renton Committee noted, certainty is often attained at the cost of intelligibility. The immediate response to such all encompassing legislation is bewilderment, not comprehension. The contorted complexities of the common law style with its in terlocking clauses and cross referencing produces laws which, it is argued, are beyond the grasp of the citizens whose conduct they are meant to facilitate and control. So severe is this phenomenon that it can bring the law into disrepute.[14]

14. Further, no matter how detailed the provisions, the attempt to cover all likely circumstances may not have the desired comprehensiveness. The more specific a set of provisions the more likely that something relevant is left out. Not every eventuality can be foreseen. This in itself generates uncertainty about whether the omitted circumstance was intended to be covered or not.[15]

15. Also, precise and so-called comprehensive legislation gives rise to an enormous volume of law. The aim may be certainty but the result is inaccessibility.[16]

    And, given the adversarial system, detail begets controversy: "the more words there are, the more words there are about which doubts may be entertained".[17] Large sums of money are spent looking for and defending loop-holes.[18]

16. Specificity also tends to conceal the intention of the legislature by failing to identify the reason for the rules in question, making it difficult to fill gaps in the law by reference to more generally stated legislative intent as when there is a casus omissus[19]. Not only is clarity lost in a mass of detail, but specific fact based provisions do not explain the reasons for legislation to citizens, or make clear the principles which justify its imposition. Specific law is thus less educative than well expressed general principles which have the potential to inform not only those whose task it will be to administer it or comply with it, but also to influence and heighten both community and political awareness of its aims.[20]

17. Finally fussy law is slow to respond to changed circumstances whereas it is argued that a adopting a civil law drafting style would:

    "give our courts room to move and attack artifice......something courts used to be very familiar with, especially in developing the rules of equity. It would encourage our courts to keep moving away from technicalities and towards substance".[21]

    C. Discussion

18. When considering which drafting style is preferable we appear to have a choice of two eminently desirable but mutually exclusive objectives, namely the clarity of fuzzy law and the certainty of fussy law. Broad principles may be readily understood but they are not readily applied, while detailed provisions may provide immediate answers, but their complexity and volume make the law inaccessible to those who are bound by it.

19. It has to be remembered that any change meets with considerable resistance through cultural inertia.[22] As Lord Simon of Glaisdale pointed out ten years later,[23] the Renton Committee Report had no discernible effects and fundamental aspects of the Report have been "completely disregarded." The Renton Committee foresaw this possibility itself when it stated:

    "we must add that little can be done to improve the quality of legislation unless those concerned in the process are willing to modify some of their most cherished habits".[24]

20. It is not simply a matter of altering drafting style. A genuine conversion in Australia to the civil style of drafting would require a move away from the adversarial system and a radical realignment of the roles of the judiciaries and legislatures. Statute law would have to acquire a higher status as a tool for social change which all bodies of the state are committed to promoting so that its aims are not thwarted by clever litigants or obstinate judges.[25]

21. It would seem that one of the most significant advantages of a move to more fuzzy methods of drafting would be to cut down the volume of legislation.[26] This in turn would help to make law more accessible to the public. Legislation should be about communication,[27] where possible with citizens, not just with lawyers who in any event are also not immune from finding complex legislation unintelligible!

22. Whether law is fussy or fuzzy, greater attention to the elements of plain English can have a significant impact on our statute law. This involves close attention to the design of legislation, including its sentence structure, choice of language and internal coherence, objectives which have gained considerable prominence in drafting guides issued by both the Commonwealth Office of Parliamentary Counsel and the Office of Legislative Drafting in recent years. Combine this attention to structure and language with an increased emphasis on purpose clauses,[28] as is now becoming the practice with Commonwealth legislation, and clarity and intelligibility may not be so far apart.

23. Where a choice has to be made, there are good reasons to make some move towards more fuzzy law in Australian drafting. At present, it is difficult to prevent phoney literalism in statutory interpretation which entirely ignores legislative context and so thwarts the consistent implementation of democratic outcomes[29]. Where fuzzy law is used to express principles, it may be more comprehensive and even more predictable than fussy law. Also, it is a fruitful division of labour if Parliaments enunciate general principles and leave it to administrators and courts to elaborate the detail in the light of their knowledge of particular circumstances and a sense of the broad purposes of the legislation.

24. But caution is required when considering the use of general principle drafting. Liberty and fairness make precision vital and attainable in some areas of law, such as taxation.[30] Green maintains that:

    "the decision to go to black letter versus fuzzy should not be a decision solely for the drafter. It is clearly a question of policy and it depends very much on the nature of the law that you are dealing with, the nature of the activity which you are seeking to regulate and the type of people even in some cases, that you want to regulate."[31]

25. Thus, fuzzy law may be more appropriate to govern private relations such as tort, family law matters (where enormous discretions are exercised by the courts whether the legislation acknowledges this or not) and in areas which are marked by a high degree of good faith such as certain business contracts where the parties have an ongoing relationship.

26. Fussy law could be retained for fiscal and other public law statutes which make provision, for example, for deductions and exemptions from tax, the setting out of the eligibility criteria for payment of benefits and the amount of benefits payable. Detailed drafting is also appropriate where it is anticipated that attempts to manipulate the law and restrictions which are imposed are likely to be evaded if at all possible by those who can afford to fund expensive litigation.[32]

27. On the other hand, broad principles are best where there is a clear context and established practice with a fair degree of consensus on appropriate standards of conduct. Green cites s.52 of the Trade Practices Act with its use of the direction that a corporation cannot engage in conduct that is misleading or deceptive as a "scary" (because it is so simple but effective) example of how such fuzzy law can work[33].

28. The transition to more general drafting styles, even assuming cooperation by both the legislators and drafters, will require a big change in judicial attitudes. Courts must be prepared to have regard to the spirit of the law and to adopt a consistent purposive approach in interpretation rather than a narrow legalistic approach which renders fuzzy law useless.[34]

29. Another prerequisite to a successful change in direction is the facilitation of better access to the courts for those whose interests under a particular law need to be clarified. The use of declaratory judgments to head off unnecessary litigation could be considered as one way of minimising expenditure of courts' time and potential litigants' funds. Parliament would need to trust the courts to give effect to the spirit of its legislation and the courts would need to break free of their tradition of taking a restrictive approach to statutory interpretation.

30. There is, of course, the danger of encouraging an activist judiciary, as we have witnessed in the last decade in the area of constitutional interpretation. The courts through their interpretation of general principles could take to themselves spheres of power for which they have neither the competence nor the accountability to deal to the impoverishment of the democratic political system. Fuzzy law makes great demands on the integrity and political awareness of the higher judiciary, particularly in those situations where it is difficult for the Parliament to intervene after the event.

Notes

[1] See for example D. Neil MacCormick and Robert S. Summers, eds, Interpreting Statutes A Comparative Study, Dartmouth Publications, 1991, chapters 1 and 2.

[2] A term coined by John M. Green drawing on the concept of fuzzy law and its use in developing the new computer technologies. See "Fuzzy law - a Better Way to Stop Snouts in the Trough?"(1991) Companies and Securities L aw Journal 144.

[3] See, for instance, Albert Kiralfy "Law and Right in English Legal History" (1985) 6 The Journal of Legal History pp 49-61 and A.G.Chloros "Common Law, Civil Law and Socialist Law: Three Leading Systems of the World, Three Kinds of Legal Thought" (1978) Cambrian Law Review pp 12-25 at pp 12-15.

[4] The supremacy of the common law is clearly diminishing - in Australia statutes are now the most important and prolific source of our rights and duties. See Hon. Jim Kennan "The Importance of Plain English", in David St L Kelly, ed, Essays on Legislative Drafting, (1988) Adelaide Law Review Association.

[5] Norman S. Marsh, Interpretation in a National and International Context, U.G.A. Brussels, 1973 at p 66.

[6] In the sense of being able to answer almost every question that can arise by textual analysis alone.

[7] "The English legislative draftsman habitually excuses the contorted particularity of his style as being his only defence against the obstinate misinterpretation by the bench of clear drafting." Michael Zander, The Law-M aking Process, 3rd edn, Weidenfeld and Nicolson, 1989 at p 31.

[8] The Preparation of Legislation, Report by the Committee appointed by the Lord President of the Council (The Renton Committee), HMSO, London, May 1975.

[9] Shael Herman, "Quot judices tot sententiae: A Study of the English reaction to Continental Interpretative Techniques", (1981) 1 Legal Studies, pp 165-89, at p 179.

[10] Sir William Dale challenges whether detailed drafting does result in certainty "..the opposite may well be the truth. There is abundant evidence of the uncertainty produced by United Kingdom statutes." Legislative Drafting: A New Approach, Butterworths, 1997, p 319.

[11] F.A.R. Bennion, Statute Law, 2nd edn 1983, Oyez Longman at p 28 "...the most telling argument in favour of common-law drafting is its greater degree of democratic control."

[12] See for example: Oliver Wendell Holmes Jr. "The Path of the Law", Harvard Law Review, pp 457-478; Roscoe Pound "Mechanical Jurisprudence", (1897) 8 Columbia Law Review, pp 605-623.

[13] David R. Miers and Alan C. Page, Legislation, 2nd edn, Sweet and Maxwell, 1980, p 200.

[14] Lord Hailsham, The Door Wherein I Went, Collins, 1975, p 1975.

[15] The Preparation of Legislation, Report of a Committee Appointed by the Lord President Of the Council ( The Renton Committee Report), HMSO, London, May 1975, p 29.

[16] In the 1990s the Commonwealth Parliament alone passes over 200 principal statutes each year and in the vicinity of 2,000 instruments were passed during 1995.

[17] Lord Halsbury in his preface to The Laws of England, 1st edn.

[18] See John M. Green's discussion on "loopholing" in commercial law matters in particular and how he argues that without precise black-letter laws this would be much more difficult. "Fuzzy law - A Better Way to Stop Snout s in the Trough?" (1991) Company and Securities Law Journal 144, particularly pp 147-148.

[19] ibid.

[20] For example the preamble to the Victorian Aboriginal Cultural Heritage Act 1986 gives recognition to fundamental principles in the area of Aboriginal rights and Aboriginal cultural heritage and acknowledges prior occupation by Aboriginal people. See Hon. Jim Kennan "The Importance of Plain English in Drafting" in David St L. Kelly, Essays on Legislative Drafting, Adelaide Law Review Association" in Essays on Legislative Drafting, 1988.

[21] Green op cit at p 147.

[22] Miers and Page op cit at p 203.

[23] "The Renton Report - Ten Years On", (1985) Statute Law Review 133 at p 134.

[24] op cit at p 3.

[25] For instance, the repeated failure of the High Court under Barwick CJ to respond to the Parliament's attempts to deal with the problem of tax avoidance: Lucretia Investments Pty Ltd v Federal Commissioner of Taxation (1975) ALR 116, Federal Commissioner of Taxation v South Australia Battery Makers Pty Ltd [1978] HCA 32; (1978) 140 CLR 645, Federal Commissioner of Taxation v Everett [1980] HCA 6; (1980) 143 CLR 440, Federal Commissioner of Taxation v Westraders Pry Ltd (1 980) [1980] HCA 24; 144 CLR 55.

[26] see footnote 16.

[27] D.C.Pearce and Robert Geddes, Statutory Interpretation in Australia, 4th edn, Butterworths, 1996, p 2.

[28] See The Hon Jim Kennan op cit at pp 76-77 who discusses how useful these can be as an addition to black-letter detailed obligations in informing and influencing community values.

[29] F A R Bennion gives the example from the Misuse of Drugs Act 1971 (U.K.) - "The court may order anything .........to be forfeited." He asks is a house "anything"? Statute Law, 2nd edn, Oyez Longman, 1983 .

[30] s260 of the Income Tax Assessment Act is an example of fuzzy law which failed in no small part because of the judiciary's refusal to interpret it in the spirit in which it was drafted. See footnote 25.

[31] see Clearer Commonwealth Law: the Report of the Inquiry into Legislative Drafting by the Commonwealth, AGPS , September, 1993 at p 134.

[32] op cit at p 13.

[33] op cit at p 148. Not all would agree however. Deborah Healey in Australian Trade Practices Law, 2nd edn, CCH 1993, p 352 states that because of the breadth of the situations which might fall within the ambit of s52 "areas of difficulty in interpretation occur."

[34] Roman Tomasic and Stephen Bottomley, Directing the Top 500, Allen and Unwin, 1993, p 168.