The Language of Legislation

Author(s): Yon Maley

Source: Language in Society, Vol. 16, No. 1 (Mar., 1987), pp. 25-48
Published by: Cambridge University Press
Stable URL: http://www.jstor.org/stable/4167814
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Lang. Soc. I6, 25-48. Printedin the United States of America

The language of legislation'

YON MALEY
School of English and Linguistics
Macquarie Universitv

A B STR ACT

The characteristicsof the languageof legislation are derived from its role in
the institutionof law. An analysis of the institutionalcontext reveals links
among history, social function, participantroles, accepted goals of legisla-
tion, and language use. The natureof an Act of Parliamentas a perpetual
speech act creates a frozen authoritativetext so that the language itself
becomes a component of the law. If legislation is to be both stable and
flexible, institutionalcommunicativestrategiesare requiredto organise lin-
guistic means to these sociolinguistic ends. (Law, legislation. register,
speech acts, communicativecompetence, communicative strategies)

INTRODUCTION

The characteristicsof legislative language within the institutionsof English and

English-derivedlaw need little demonstration.Its distinctive markersare easily
characterisedand have been commented on by a numberof writers. The most
frequentlymentioned are archaic, foreign, uncommon words (Mellinkoff I963:
1 , 1982:3); long, complex sentences with intricatepatternsof coordinationand
subordination(Crystal & Davy 1969:204; Gustafsson 1975:22; Bhatia 1982:7);
repetition(Danet 1980:478); passive voice (Danet 1980:479; Finegan 1982:115)
- and a complete absence of colour and humanity.It is commonly agreedto be a
complex, intricate, even bizarre style of language. This complexity and eso-
tericism are odd and require explanation. Legislation is the largest and most
importantsource of law in our society, affecting the life of the ordinarycitizen in
dozens of small and large ways. Yet as an English publication, The Renton
Reporton the Preparationof Legislation, points out, even professionalinterpret-
ers of the law, the lawyers and judges, find that at times the way the law is
draftedis "an impenetrablebarrierto understandingit." The Report adds:
To the ordinarycitizen the provisions in the statutebook might sometimes as
well be written in a foreign language for all the help he may expect to obtain
there as to his rights and duties under the law. And this in an age . . . when
the statute law has a growing effect on practicallyevery sphere of daily life
(Renton 1975:37).

0 1987 CambridgeUniversity Press 0047-4045/87 $5.oo

25
 YON MALEY

It seems, then, thatthe characteristicsthatmarklegislative languageas a separate

style of language are the characteristicsthat prevent it from communicating
efficiently to its users. How can this situationhave arisen?Why is it allowed to
continue?
In this article I shall offer an historical and functional explanation for the
presence and persistence of the criterial and characteristicforms of legislative
language. While not seeking to justify its oddities or minimise its areas of
dysfunction, I shall attemptto show the extent to which legislative language, or
legislative discourse, is a motivated, use-based style or register (Halliday
1978:32) of English.
I have chosen both Australianand English law and textual data for discussion
for two reasons:as an Australian,Australianlaw and legal languageare at hand
and familiar to me; yet Australianlaw or legal language cannot be explained
except by referenceto English law from which it developed and to which it is, to
some extent, still tied. This is not to suggest that Australianlaw does not have a
life of its own. It does, but in common with other excolonial countries, it is part
of one legal family (David & Brierley 1978:20) and, to some extent, one legal
culture(Stone 1968:23; Friedmann1975:209). These countriesare the inheritors
of the common law legal system which developed in England from the time of
the Norman Conquest and spread widely over the world in the following cen-
turies, usually as a result of colonisation. The termfamily suggests the very
general nature of the similarities that these systems now share. They can be
likened to dialects of a language. Each shares a stratumof structure,function,
attitudes,and values thatmakes for mutualintelligibilityand communication;yet
each has developed regional differences and regional loyalties. For functional
and historical reasons, the legal systems and legal cultures of England and
Australiaare probablycloser than the systems and cultures of Englandand the
United States. Yet considerablesimilaritiescan be found among the membersof
the family. So those generalisations that,apply to Anglo-Australianlaw and
language apply also - with some qualifications in each case that cannot be
pursuedhere - to the law and languageof the United States, Canada,and India.

THE INSTITUTIONAL SITUATION

I shall assume here that the sociolegal context gives rise to a specific kind or
subset of communicative competence (Hymes 1972, 1982); that is, legislative
communicativecompetence, which is a set of communicativestrategiesencom-
passing what a specialised group of individuals in the exercise of their institu-
tional roles know and do to produceappropriateand valid legislationand, when
necessary, interpretit. Unlike many other kinds of communicativecompetence,
legislative communicativecompetence is not simply ""pickedup"; it is a learned
communicativeskill or craft which producesa craftbounddiscourse(Ross 198 1),
an insider language which is subject to special conditions of productionand
26
 THE LANGUAGE OF LEGISLATION

interpretation.The focus of this article is on the productionof legislation and

thus on those strategies, in the sense of ways of organising linguistic means in
relationto ends, thatunderlieand are responsiblefor legislative discourse, in the
sense of an organisationof means in relation to ends (Hymes I982:107), in the
Anglo-Australianlegislative situation. Legislative communicative competence
links the relevant categories or dimensions of the institutionalsituation to the
linguistic forms and organisationand reveals the dynamics of the relationship:
how situationaldimensions influence and even determine linguistic choice and
how the text so produceditself becomes a constitutive partof the legal process.
The relevantdimensions of situation are three-fold:
i. The Nature of Legislation: its social function, its structuralelements;
2. The ParticipantRoles: the natureof and interrelationshipsamong the roles
that the participantsin the situation type perform;
3. The InstitutionalGoals: the desirable semantic or pragmaticqualities that
the text should possess in order to serve perceived institutionaland social needs
and values.

THE NATURE OF LEGISLATION

An Australianlegal textbook defines a statute in this way:

A statuteis a documentenacted by a legislative body constitutedaccordingto
some constitutionalformula. Its words are law. The legislaturewhen it enacts
statutes (or Acts of Parliamentas they are most often called) proposes to
control action, usually only in the future, by the words contained in the
legislation (Derham 1971:201).
Controllingactions by words; here is the key to the understandingof legislative
language. When the legislatureenacts a statute, it is performingspeech acts in
the classic, performative,Austinian sense (1962:149).2 These performativeacts
are simultaneouslylinguistic and legal, as the term used in Anglo-Australianlaw
makes clear - an Act of Parliament.Legislative actions are performedby means
of words and the words of the law are the law. All statutes are framed within a
global or macro(van Dijk 1977:238) performativeillocutionaryact, the enacting
formula. In English statutes it runs thus: "Be it enacted by the Queen's Most
Excellent Majesty, by and with the advice and consent of the Lords Spiritualand
Temporal, and the Commons, in this present Parliamentassembled, and by the
authorityof the same, as follows:"3
The successful performance of the enacting formula presupposes a set of
institutionalconditions:Within a legally constitutedlegislature, the Bill must be
passed by both Houses or Chambers(in a bicamerallegislature)and receive the
Royal Assent (in Australia,conferredby the Queen's Representative).The docu-
ment is called a Bill before it has been passed by Parliamentand received the
Royal Assent. Only if these conditions are met does the enacting formulaenact a
27
 YON MALEY

valid statute. In the legal context, successful means valid and the statute as a
whole is an operative instrument(Hart 1961:31; Austin 1970:236). The sub-
stance of the statute, what is in fact enacted or made law by the utteranceof the
enacting formulain the appropriateinstitutionalconditions, is consideredto be a
set of separateenactments, set out in numberedsections, which frequentlycon-
tain subsections. The individualsections, each with its own operativeor enacting
verb (Coode [18521 1973:329), are embeddedwithin the global illocutionaryact
which is the enacting formula.4
The substanceof the statute, in keeping with its dual role as an act of language
and an act of law, constitutesa text of a very special character.The bindingforce
of the statuteis now attachedto a verbal formulationwhich, once enacted, exists
indefinitelyor until repealed. The words may be ambiguous, incomplete, or not
even an accuraterepresentationof the legislature's intention. But unless amend-
ed or repealed, the words must stand as they are.5 They are authoritativeas
words. Moreover, there is limited opportunityfor adducing evidence from any
other source, includingParliamentor the draftsman,as to what the statutemight
mean but does not completely or clearly say.6
The authority of the statute/text is reinforced and given continuity by an
assumptionor fiction that the words of the statuteare continuallyspeaking: "A
statuteonce passed is deemed to be perpetual" (Hampson v. Pizzinato 119651
New South Wales Reports). The historian, Plucknett,suggests that the origin of
the role of legislation as a fixed, canonical text, can be tracedback as far as the
fourteenthcentury, when thejudiciaryfirst beganto separatein functionfrom the
King's Council, the embryo legislature:
Towards the middle of the fourteenthcentury . . . the judges began to in-
terpret statutes strictly. No longer are they to be regardedas merely sug-
gestions of policy within whose broad limits the court can exercise a broad
discretion. Insteadthey are regardedas texts which are to be appliedexactly as
they stand, and so we find the beginnings of a radical separationinto two
functions:the first legislates and establishes a text, the second adjudicatesand
interpretsthe text. The separationwas momentous for English history, for
more than anything else it promoted the isolation of the law courts and the
judges, enabling them to develop an independentposition and to act as checks
upon the executive and as critics of the legislature (Plucknett 1940:297).
The two functions producedby the ""radicalseparation"are still maintained
separately (see the following section, Roles of the Participants),supportedby
doctrineof the separationof powers, thatis, of the executive, the legislature,and
the judiciary. So the rightof the legislatureto producelegislationand the duty of
thejudiciaryto interpretit are centralto our political and legal systems. The text,
the enacted words, is the common link and the basis on which each function
maintainsand exercises its position.
The Anglo-Australiantraditionhas been to maintainthe strict separationbe-
28
 THE LANGUAGE OF LEGISLATION

tween legislation and interpretation,that is, between the productiveand semantic

wings of legislative communicative competence. Courts avoid what has been
called "the nakedusurpationof the legislative function"7 and tend (with, it must
be admitted,some notableexceptions) to interpretthe legislative text strictlyand
literally. Courts in the United States have been more flexible and more adven-
turous, and the role of the courts in actually making and shaping law through
statutoryinterpretationis more explicitly recognised. Nonetheless, whether a
literalor a creative approachis taken, British, Australian,and U.S. courts retain
a centralfocus on the text as text; it remainsbasic and central (Hurst 1982:46).
This emphasis contrastswith the Europeantraditionof legislation and interpreta-
tion which treats the text as a guide only (Bennion i983:1).
An understandingof the role and status accorded to a statute as a "'frozen
bindingtext" (Twining & Miers 1976: 120) is crucial to an understandingof the
institutionof legislation and to an explanationof the characteristicand enduring
forms of legislative language. First, the various provisions of the statute/textas
set out in the enacted sections and subsections are characterisedas rules. Even
though they are a mixture of declaratory and directory speech acts (Searle
1979:28), theircommon featureis that legal rules ""donot presenta model of the
world but a modelfor it" (MacCormick1978:104). The invariablegrammatical
form which expresses the rule is a declarativesentence, the illocutionaryforce of
which, however, is never that of a statement. Thus Section 3 of the United
Kingdom's (U.K.) House of Commons Disqualification Act, 1975, is a rule
which defines a relevant legal category:
(3) In this section -
police authority means any police authoritywithin the meaning . . .
Section 2(1) of the New South Wales Crimes Act, 9goo, performativelyrepeals
earlier Acts:
2.(l ) The Acts mentioned in the First Schedule hereto are, to the extent
therein expressed, hereby repealed, except as to offences . . .
Defining and repealing are fairly common illocutionary acts in legislation.
They are, however, subsidiary to those used to perform the central role of
legislation, that is, the creation by means of correctly enacted speech acts, of
rights and duties. Characteristically,laws create rights and duties in one of two
ways: They command or empower. In legal terminology, they are either MAN-
DATORY or DISCRETIONARY.Discretionarytypes have two subcategories,
directoryor permissive, a distinction between substantive and procedurallaw,
which need not concern us here (Pearce 1974:126). By this dichotomy, the law
sets up two importantcategories of legal illocutionaryact. Mandatoryillocution-
ary acts have the force of commands which impose an obligation to act or not to
act; discretionaryillocutionary acts confer a power which may or may not be
exercised. Characteristically,the modals must and shall are used in the perfor-
29
 YON MALEY

mance of mandatoryillocutionaryacts, and may is used for the performanceof

discretionaryacts. In this use, they express, performatively,deontic modality,
relatingto the action of the speaker in giving permissionor laying an obligation
(Palmer 1979:35). Thus in Section 4 of the U.K. House of Commons Dis-
qualificationAct, 1975, "'shallbe treated"appearsto createa rule with the force
of a command:
4. For the purposesof the provisions of this Act relatingto the vacationof the
seat of a memberof the House of Commons who becomes disqualifiedby this
Act for membershipof that House, the office of steward or bailiff of her
Majesty's threeChiltem Hundred'sof Stoke, Desboroughand Burnham,or of
the Manor of Northstead, shall be treated as included among the offices
described in Part III of Schedule i to this Act.
It is necessary to make the qualification "appears to create" here, for shall,
must, and may are notorious sources of ambiguity in legislative interpretation.
That is to say, it may be argued in a particularcase that the legislaturedid not
intend that shall be mandatory(have the force of a command) and that there is
contextual evidence within the Act that the meaning be discretionaryonly. In
such cases, courts in effect, if they agree with the argument,decide that shall
means may or vice versa (Maley 1977:6).8
Such apparentreversalsof semantic commonsense are forced upon courts by
the statusof the text as the realisationor embodimentof the legislature'scommu-
nicative intention. When the text says somethingabsurdor in conflict with other
contextualevidence, the courts cannot change the text. They can only give it the
meaning that they infer the legislature intended. If the legislaturedoes not like
the interpretation,it is up to the legislature to amend the text.
The institutionalview of a statuteas a set of rules in fixed verbalform thatare
forever speaking has, then, these consequences:
1. Use of a global illocutionaryact which enacts the entirestatute, in the form
be it enacted by X that Y . . . where X is the sovereign power and Y is the set of
sections that make up the statute/text.
2. Use of deontic modals, in the enacting verb of the section or subsection
where the speech acts are acts of commandingor empowering;for other kinds of
illocutionaryacts performedby the enacting verbs the tense is always present.
Both modals and present tense verbs are performativein that their validly per-
formed utterance as part of the statute performs a social act of some kind -
commanding, empowering, repealing, defining, and so on.
Failureto use these forms would mean that the legislative rule was not a rule, as
the institutionof legislation and law currentlyunderstandsit and as it is currently
functioning. These linguistic forms are criterialto legislative languageand they
are implied by the role that the institutionas a whole accords the text.
There is anotherconsequence of the fact that legislation is a set of perpetual
rules of action: the generalityof the legal rule. Rules of law, typically, concern
30
 THE LANGUAGE OF LEGISLATION

classes of persons, things, actions, and circumstances. The class is not neces-
sarily a naturalclass but one to which the legal rule applies for some purpose.
Undoubtedly,however, some rules are more general than others in that they
are applicableto a wider class of individuals, acts, events thanothers. Compare:

221. Whosoever maliciously sets fire to any mine of coal, cannel-coal, an-
thracite, kerosene-shale, or other mineral, fuel, or to any well of mineraloil,
shall be liable to penal servitude for life (New South Wales Crimes Act,
190i).

6.(4) In any case where, by virtue of the Recess Elections Act 1975, the
Speakerof the House of Commons would be requiredto issue duringa recess
of that House a warrantfor a new writ for election of a member, in the room of
a memberbecoming disqualifiedby this Act, he may, if it appearsto him that
an opportunityshould be given to the House to considerthe makingof an order
undersubsection (2) above, defer the issue of his warrantpending the deter-
mination of that House (U.K. House of Commons Disqualification Act,
1975).
Section 221 is a rule of greatgenerality:It applies universallywithin the jurisdic-
tion of the legislature. Its universalityis achieved by the realisationof the legal
subject (that is, the class of entity to whom the law applies) by the nonspecific
pronoun Whosoever. Modem statutes prefer the phrase anv person who or a
person who but the effect of the phrase is equally nonspecific and universal. On
the otherhand, Section 6.(4) of the House of Commons DisqualificationAct has
as its legal subject a limited and specified class of person, that is, the person
occupying the position and carrying out the institutionalrole assumed by the
Speakerof the House of Commons. Generality of some kind, then, is charac-
teristicof a rule of law. It is not criterial,however. In some cases, the legislature
legislates for specific individuals, companies, and organisations. It has been
argued that such legislation confers legal privileges only - they are privilegia
ratherthan leges (Maitland 1908:382).

THE ROLES OF THE PARTICIPANTS

Traditionallegal theory identifies two participantsonly in the communicativeact

of legislation: sovereign and subject. Laws emanate from the sovereign or sov-
ereign power (the Queen-in-Parliamentin the United Kingdom and Australia)
and are directed at those individualssubject to that sovereign power. In reality,
the situationis more complex, and four participantroles can be identified:on the
productionside, SOURCE and DRAFTSMAN; on the interpretationside, AU-
DIENCE and INTERPRETER.
The SOURCE of the statute is the legislature itself, whose communicative
intentionthe words of the statute are deemed to express. This is the sovereign
31
 YON MALEY

power which alone has authority to make laws for the particularjurisdiction
(although it frequentlydelegates part of that authority).Who the legislatureis,
what it comprises, varies from system to system and fromjurisdictionto jurisdic-
tion. The legislatureinstructsthe DRAFTSMAN as to the substanceof the Bill
(as it is at this stage), that is, its intended meaning. In practice, this usually
means thata governmentdepartmentor a memberor membersof the legislature,
dependingon the origin of the Bill, instructsthe draftsman,that is, an individual
whose occupationis to draftrules of law. He or she is a public servanttrainedfor
just that task. This has not always been the case. Over the centuries, laws have
been draftedby judges, officials, lawyers. There has only been a profession of
draftingsince the nineteenthcentury, and the office of the ParliamentaryCoun-
sel, which is the specialised branchof government which in Englandand Aus-
traliacarries out the bulk of governmentdraftingwork, was first establishedin
England in 1869 (Renton 1975:5).9 There is also a small class of statutes that
have been writtenby a memberof the legislatureor someone assisting him; these
are known as private member's bills. But the vast majorityof statutes on the
statutebook (the body of currentlaw) have been writtenby professionaldrafts-
men. Even so, they are by no means homogeneous documents in the sense that
each has a single authoror draftsman.Some are very old and usually have been
considerablyalteredover the years by legal processes of amendmentand repeal
performedby laterdraftsmen,in a piecemeal way. It is a rarestatute, ancient or
modern,thatdoes not contain additionalor amendedmaterial,so thereis rarelya
single DRAFTSMAN for any statute.
The text of a statute, then, is the product of a collaboration, in the first
instance, between the legislatureand the draftsmanand may includeamendments
thathave been made or requiredin Parliamentarydebate. Wherethe responsibil-
ity for this text lies dependson the points of view taken. In termsof the substance
of the enactmentor statute,the meaningthatthe words carry,the legislaturemust
be assumed responsible. What is said is what the legislature intended to say,
since the words of the statuteare the chief evidence of the legislature'sintention.
In terms of the rules of draftingstyle for translatingthat substance into a valid
and effective Act, then the draftsmanis responsible.
The AUDIENCE of the statute is the general public underthe jurisdictionof
the legislature,or a particulardefined section of it, providedthey are not minors,
insane, or imbeciles. However, because of theircomplexity, both of content and
expression, statutes assume and requirethe existence of a specialised INTER-
PRETERto interpretor construe their meaning. These specialised interpreters
may be lawyers, public servants, accountants, and - most importantlywhen
there is dispute as to what is meant- the courts. Only the court's interpretationis
authoritativeand binding.
The situation outlined above contains two institutionallybased dyads: the
sovereign power (the source) and those subject to the Act (the audience); and
draftsman and professional interpreter. Each dyadic relationship has conse-
32
 THE LANGUAGE OF LEGISLATION

quences for legislative language. The sovereign power and subjectrelationshipis

a relationshipof great social distance and differentialpower relations. Thus, the
enactingformulawhich prefaces a statutebegins, "Be it enacted by the Queen's
Most Excellent Majesty . . ." The verb form, a jussive subjunctive, explicitly,
that is, performatively,enacts the statutebut it also reflects the authorityof the
legislature(in its role as sovereign power) and the status differentiationby the
use of passive voice, the lexical items which are both archaicand formal, and the
capitalisationof the names.
Within the body of the statute, the various speech acts which create rules of
law also reflect the relationshipof authorityand status differentiation.Rulegiv-
ing of any kind involves asymmetrywhen one partyhas the authorityto regulate
the actions of others. When that regulationis to be done by means of speech acts
and the participantsto the speech act are distanced, unknownpersonallyto each
other, and participantsonly by virtue of their institutionalrole, formality and
impersonalityare predictablecommunicative modes or strategies. Thus,

237. Whosoever maliciously attemptsto set fire to, or cast away, or destroy,
any such vessel, shall be liable to penal servitude for fourteen years (New
South Wales Crimes Act, 190I).

The form "'whosoever [does] . . . shall be liable . . ." is a common form for
sections which define or set out the elements of a crime. But other forms are
used:

1.(2) A personguilty of an offence underthis Act shall be liable, on conviction

on indictment,to imprisonmentfor life (U.K. Taking of Hostages Act, 1982).

"Whosoever" and "'aperson" are thirdperson indefinite nominals, and it is in

this formal and unspecific way that the locutionarysource of a rule of law, the
sovereign power, addressesits audience, its subjects. It appearsto be addressing
the world at large, although in practicalterms the audience is that section of the
jurisdictionto whom the law is directed. These examples show, too, that legisla-
tive language uses the category of person in a characteristicway, completely
eschewing first and second person forms.
The deontic modal shall performsand creates a rule of obligation in the most
formalway. That is, a rule of obligationcould be phrasedin the formIf X does Y,
X is liable . . . or must. . . Legislative rules characteristicallyuse the formal
and (except for rules and regulations) archaic form shall with its overtones of
authorityand power.
The second dyad is a relationshipbetween specialists. The relationshiprests
upon a very large body of shared meanings of various kinds, chiefly but not
exclusively legal. In the most general and to the layperson, elusive, sense, both
draftsmanand professional interpretercall upon a backgroundof sharedknowl-
edge and assumptionsabout legal and political principles and processes. This is
33
 YON MALEY

the sociolegal context in its widest sense. To give an example: The Australian
draft Bill of Rights proposes to enable a HumanRights Commissionto conduct
compulsory conferences "in such manner as the person presiding at the con-
ference thinks fit" (35.2). The literal meaning is quite clear, but the social and
legal implications of such a provision are quite profoundand are immediately
apparentto a lawyer but not necessarily to a layperson.The provision, in effect,
will suspend all the usual and historical "safeguards" of the law of evidence,
presumablyin the interestsof renderingthe enquiryunderthe proposedAct more
flexible and informal.
More narrowly, the shared meanings can be characterisedas technical mean-
ings, that is, meanings which are unique to a specialised or craft-boundsituation
and which conceptualise and classify extralinguisticreality along lines that are
either theoreticallyor pragmaticallydesirable for the subject matteror situation
type. Technicality in legislation may be either technicalityof the subject matter
legislated for (e.g., an Act which regulatesand specifies economic or engineer-
ing standards)or purely legal concepts (e.g., those of propertyand possession).
The technical vocabularyof law and legislation is largely Frenchin origin, and
its developmentis linked, by legal historians,with the need to find terms for the
concepts of a growing social institutionso that the growth of specifically legal
concepts and specifically legal terms for those concepts meant the growth of the
law itself. As it has developed, technicality in the vocabularyof the law gener-
ally has two aspects: technical terms and terms of art. A term of art is "'a
technical word with specific meaning" (Mellinkoff 1963:17). To the layperson.
this seems ratherlike a distinction without a difference, since the commonly
accepted definition of a technical term is that it has a specific meaning in a
specific sphereof activity. The difference appearsto lie in the fact thata termof
arthas an explicitly fixed meaning, whereasa technical term is a special termof
law but the contentof its meaning may change in context or over time. Lawyers
assume that a term of art always bears the same meaning in whatevercontext it
appears. ""Itis sufficient for the lawyer's purpose of the moment that with the
terms of art the effect of context on meaning has become more limited than for
most words. That is the essence of the 'term of art' " (Mellinkoff 1963:391).
Examplesof termsof art are: alibi, bail, certiorari, defendant,ex parte, felonv,
plaintiff, stare decisis (Mellinkoff 1963:17). However, a technical term like
manslaughterhas only a relatively fixed meaning. It is a technicalterm in that it
is a specialised term used by participantsin a particularsphereof activity but the
meaning of the term is not absolutely fixed. The componentsof the crime and
thus the meaning of the word may vary over a period of time and accordingto
statutoryregulationor judicial decision (Maley 1985).
Nonetheless, at any one time, such terms have a stable core of meaning and
have paradigmaticvalue by virtue of their participationin lexical fields. The
specialised legislative competence of the draftsmanand professionalinterpreter
consists to a large part of knowledge of the semantic oppositions and rela-
34
 THE LANGUAGE OF LEGISLATION

tionships within such fields. To the extent that it is specialised knowledge, such
competence is not shared by the audience of legislative discourse, that is, by
those members of the public subject to the Act.

THE GOALS OF LEGISLATION

Of all values, the law prizes certaintyabove all - even, occasionally, above the
claims of justice: "Insofar as any generalisationcan approximatethe truth, it
may be said that it is more importantfor a rule of law to be certainthan it is for it
to be just" (Wade 1940:X87).Remarkssuch as this are unlikely to endearlaw or
lawyers to laypeople who cherish the notion that the chief purpose of law is to
providejustice. But the reasoningbehind a so apparentlybizarrepoint of view is
that, indeed, certainty is a prerequisiteof justice and uncertaintyis a source of
injustice. If laws are unclear, inadequate, ambiguous - that is, uncertain -
people cannotordertheir affairs from day to day for they will not know the scope
of the law. When a law has legal certainty, its effects can be recognised immedi-
ately, without confirmation by decisions in the courts (Renton 1975:57). In
English and Australianlegislation, legislative rules contain featuresof language
and organisation that are directly attributableto the pursuit of certainty. The
linguistic forms of the legislative rule are selected so that they are explicit and
precise.

Explicitness
This involves draftinga detailed and, if possible, exhaustive rule. The language
of the rule refers to all the possible entities or actions to which the legislature
intends the rule will apply. Thus:
140. Whosoever -
steals, or destroys or damages with intent to steal the whole, or any part, of
any tree, sapling, shrub, or plant, or any underwood, growing in any park,
pleasure ground, garden, orchard, or avenue, or in any ground belonging to
any dwelling house, where the value of the article stolen, or the amount of
injurydone, exceeds two dollars, or
steals, or destroys or damages with intent to steal, the whole, or any part, of
any tree, sapling, shrub, or plant, or any underwood respectively growing
elsewhere than in any situation before mentioned, where the value of the
article stolen, or the amount of injurydone, exceeds ten dollars,
shall be liable to be punished as for larceny (New South Wales Crimes Act,
1900).

Sections of this type are common in English, Australian,and also U.S. law. The
draftsmanattemptsto cover every possible eventuality, every possible instance
of the proscribed behaviour that can conceivably occur. Explicitness derives
35
 YON MALEY

from the distinctions made (whole,or anypart . . . ), from the specificationof

the membersof the class of objects and the class of actions falling underthe rule
(tree, sapling, shrub, plant, underwood . . .; destrovs, steals, etc.). Insofaras
explicitness covers all items of a relevantclass, any gives universal,unqualified
application.
Note that the second paragraphrepeats the first part of the first paragraph,
itemising the proscribedactions and their goals. The repetitionmakes explicit
what is sharedby both rules. It has the secondaryeffect of minimisingthe risk of
ambiguity that the use of such pronouns as they, it, or these might cause.
Repetitionratherthan pronominalreference is the preferredcohesive device.

Precision
Legal drafting seeks "a degree of precision and internalcoherence rarely met
outside the languageof formal logic or mathematics"(Dickerson 1965:5). Legal
language, then, must not only be precise, it must be more precise than other
styles of language. A frequentlyquotedjudicial dictum makes this point. In re
Castioni, the judge referredto
. . . thatdegree of precision which is essential to everyone who has ever had,
as I have had on many occasions, to draftActs of Parliament,which, although
they may be easy to understand,people continuallytry to misunderstand,and
in which, therefore, it is not enough to attain a degree of precision which a
person reading in good faith can understand,but it is necessary to attain if
possible to a degree of precision which a person reading in bad faith cannot
misunderstand.It is all the better if he cannot pretend to misunderstandit
([1891] I Queen's Bench 149, 167 per Stephen J.).
Primarily,althoughnot exclusively, precision is achieved by technicalitywhich
is itself sustained by the existence of professional, trainedparticipants(see the
precedingsection). A technical languagedevelops not only to facilitatecommu-
nication between participantsbut also to furtherthe interestsof some perceived
institutionalgoal - here, precision.
Turner(1973:172) points to two contrarytendencies in the vocabulariesof
technical languages:a specialisationof vocabularyso that distinctionsneglected
in nontechnicalvocabularycan be made; a tendency towards general terms to
representmore inclusive concepts thanthose of ordinarylanguage. In eithercase
a special term is used. In the first case, the semantic field is fragmentedand
differentterms given to the parts that make up the whole; in the second case, a
semanticfield is identifiedand named. Both these tendenciesoperatestronglyin
legal and legislative language. Thus distinctions are made between murder,
manslaughter, infanticide as kinds of homicide (often differently in different
jurisdictions);between larceny, embezzlementandfraudulent misappropriation
as types of theft; between burglary and housebreaking as types of thefts of

36
 THE LANGUAGE OF LEGISLATION

money and/or chattels from a house. On the other hand, the use of the general
tern is equally apparent:fraud, negligence, homicide.
Precisionneed not derive exclusively from technicality:The precise word may
be a word from ordinary language or from nonlegal technical language. The
arrangementof the Parts of the rule and the Act are also importantto achieve
precision, in the sense of a correspondencebetween what is intendedand what is
said. Withinthe body of the Act, the divisions and classifications made between
Partsof an Act or between sections and subsections reflect the legislature'sview
of what is important.The formatattemptsto mirrorthis view, and devices such
as numbering,lettering,indexing, and paragraphingare attemptsto place a clear,
exact grid over a selected section of subject matter.
It is importantto make the point here that certainty in a legal rule doesn't
necessarilymean intelligibility. It may ultimatelybenefit the ultimateconsumer,
the person subject to the rule, but it doesn't necessarily help him or her to
understandit. Judges, lawyers, and academic writers clearly recognise that the
pursuitof certaintyby means of explicit, detailed, and often technical legislation
produces laws that are complex and unintelligible to their ultimate consumer.
Simplicity and clarity versus immediate certaintyare viewed as conflicting ob-
jectives. In the United Kingdom, the 1975 Renton Reporton the Preparationof
Legislation came down firmly on the side of certainty: "The draftsmanshould
not be forced to sacrifice certainty for simplicity" (1975:150).
In this respect, English and Australianlegislation contrastswith legislation in
Europeanjurisdictionslike France and Germanywhere the traditionalapproach
has been to draft laws in broad general principles - with a consequent gain in
intelligibilityand simplicity - and to leave it to the courts to settle the details of
its application in particularcases. Courts in Europeanjurisdictions have more
freedom than English and Australiancourts to go behind the words of the text
and look at other textual evidence in order to establish the intention of the
legislature (see The Nature of Legislation above). The difference in language
style is one aspect, one symptom, of a much wider institutional and social
difference. The role of the judiciary and its relationshipwith the legislatureare
quite different in each system.
It is apparent, however, that "immediate certainty" is not a very strong
justification for a detailed exhaustive or technical legislative rule, since it so
often fails to achieve its goal. Every case of statutoryinterpretationbefore the
courts- an estimated40 percentin Australiancourts(Pearce 1974:1) and as high
as nine cases out of ten before the House of Lords (Bennion I983:20) - is an
instance of failed legal certainty, that is, of uncertainty. Frequently, the very
measuresthat were intended to achieve certainty are the source of uncertainty.
Given changingcircumstancesin a changing world, it is difficult for the legisla-
tureto foresee and cover every circumstancein a rule. The omission of an item or
circumstancefrom a rule which purportsto be exhaustive raises the problem of

37
 YON MALEY

eitheran intentionalomission or an unintentionalgap. Ultimately, the uncertain-

ty can only be resolved by a court or by furtherlegislation.
Complete certainty, then, is probably an unachievablegoal in legislation.'0
Occasionally, also, it is undesirableor must be balanced against another, less
frequentlyspoken of goal, that is, flexibility. If certainty is perceived to be a
virtue, so too is flexibility, althoughits role is rarelystressed. The necessity for a
certainamountof flexibility is implied in the first place by the generalityof the
legal rule. Insofaras a legal rule is a general rule, it employs generalclassifying
words, for example, woman, vehicle, child, thing, place. Now, a general term
can be certainonly when the principlesof classificationare known and specified.
To take a familiarexample: what is a vehicle? Does the classification include a
scooter or a hovercraft? Unless the rule identifies and delimits by means of
specificationthe membersof the class relevantfor the rule, the total membership
is not fixed and can be determinedonly by later interpretationin the light of the
intentionof the statuteand the circumstancesof the instantcase. So such a rule
contains an element of vagueness. An influentialview in law, proposedby Hart
(196I:I19), has been that such general words have a core of certainty and a
penumbraof doubt which give legal language a characteristicopen texture. A
similar concept, stereotype or prototype meaning, is found in linguistics:Lyons
(198X) and Hurfordand Heasley (1983).
Apart from general words, legal rules frequentlycontainjudgment words, or
words of subjective interpretation,like wilfully, reasonable, maliciously. Scores
of decisions and definitions may attempt to identify behaviour to which such
termscan apply, but ultimatelyeach piece of behaviourhas to be judged subjec-
tively against these definitions and a decision made about applicability. Vague-
ness is potentially both valuable and dangerous in a rule of law. Too much
vagueness results in uncertainty,generallyconsideredto be an evil. On the other
hand, a certain amount of vagueness is often desirable in order to achieve the
comprehensivenesssought by generality and to provide leeways (Stone 1968:
319) for unforeseencircumstancesor entities which may laterbe includedwithin
the ambit of rule. The legislaturemay not itself be certain as to the membership
of the class or the exact value of the standardto which the rule refers and may
prefer to leave some open-endedness in the rule so that it can be adapted to
changing social needs (Payne 1956:96).
Whenthe legislature(throughits instructionsto the draftsman)employs such a
strategyof generality without accompanyingexplicitness or a strategyof inten-
tional vagueness, it is choosing flexibility ratherthan certaintyand stability and
trustingthe discretionof the courtsto construeand apply the rule "correctly." If
that trust is not well-founded and courts, exercising theirjudicial independence,
develop the law in ways uncongenialto the legislature,that is, the governmentof
the day, there are three choices: alter the law, an ad hoc and post hoc solution;
provide accompanyingexplanations with the Bill or Act as to legislative inten-

38
 THE LANGUAGE OF LEGISLATION

tions (a course being followed at presentin the Federaljurisdictionof Australia);

or appoint politically sympatheticjudges.
The flexibility and open textureof general words may be lessened if the word
has achieved that statusof a technicalor semitechnicalword, following a history
of past interpretationthat has, to a large extent, fixed its meaning. This is the
case with key terms in old and relatively settled areas of law. However, the
meaning of such terms can change if the class of cases to which the term is
applied is broadenedor narrowed.The components of the crime of murderand
thus the meaningof murderhave changed considerablyover the centuriesand it
is quite likely that they will continue to do so. (Maley 1985). Some lawyers are
presently arguing for a redefinition of theft to include theft of information, for
example, computercrime.
Finally, a legislative rule must effect a certain amount of condensation, in
orderto fit all the elements of the rule within the confines of one sentence. The
convention of the single sentence section or subsection has a long history. Very
early statutes were draftedin the form of a single sentence because each statute
was considered to be a single enactment. Today, each section or subsection is
regardedas a separateenactmentand no function is served by enactingthe rule in
one sentence ratherthan in a series of sentences;draftsmenare free to draftrules
in short sentences if they think it desirable. In the United States, in those
jurisdictionswhere Plain Language laws operate, directions and guidelines fre-
quently urge the use of short sentences. In Britain and Australia, despite a
growing recognitionof the desirabilityof simplified legislative language, drafts-
men retain a strong preference for the single sentence section or subsection.
Their conservatismis based on the belief that the semantic connections between
elements of a single sentence are likely to be clearerthan those between two or
three separatesentences. The Renton Report on the Preparationof Legislation
quotes with approvalthis opinion:
Shortersentences are easier in themselves, and it would probablyhelp overall
to have them shorter, but of course you are faced with having to find the
relationshipbetween that sentence and anothersentence two sentences away
which, if you have it all in one sentence, is really done for you by the
draftsman.(Renton 1975:64).
Such reliance on the draftsman's syntactic skill may or may not be well-
founded, but its effects are apparentin the form of the legislative rule. Given the
other institutionalrequirementsof exhaustiveness and precision, the convention
of the single sentence section or subsection frequentlyproduces very long sen-
tences with complex subordinationand coordination.Moderndraftsmenattempt
to breakup the visual indigestibilityof the text and to impose a logical orderon it
(see above) by a techniqueof paragraphing,whereby clauses, particularlyparal-
lel clauses setting out parallelprovisions, are inset and numbered.The principal

39
 YON MALEY

meansof controllingthe length, however, andjuxtaposingelements in relationto

each other, is by condensationof clauses and phrasesto participialphrasesand
nominalisations.Thus:
48 I. Everyconviction upon a chargedisposed of summarilyundersection four
hundredand seventy-nine shall have the same effect as a conviction upon an
indictment for the offence would have had, and no person, convicted as
aforesaid,or who obtains a certificateof dismissal undersection four hundred
and eighty, shall be afterwardsliable to prosecutionfor the same cause (New
South Wales Crimes Act, igo9).
Nominalisationsdo not always achieve condensation. It has been noted that,
frequently,sentences using the nominal style are wordierthanthe corresponding
verbal style (Wells 1966; Halliday 1977). For example, a phrase like "shall be
afterwardsliable to prosecutionfor the same crime" has the same legal effect as
the shorter "may be afterwardsprosecuted." So it would seem that the very
frequent use of nominalisations, particularlyin proceduralsections, has other
intendedconsequences. Nominalisationsobjectify the process and make it possi-
ble to be treatedas somethingwhich is apartfrom personsand time, and which is
a partof or a step in legal procedure.As nounlikeelements in the sentence, they
are more movable than verbs and can, as in Section 481, be placed in subject
position and given thematic prominence. Section 481 is "about" an objectified
process, a conviction.

A TEXTUAL ANALYSIS

Assume, then, that the communicativestrategiesidentifiedso far make up legis-

lative communicative competence. As ways of organising linguistic means to
institutionalends these strategiesor ways of meaning are, in everyday practice,
at the disposal of individuals, the draftsmen. It is their knowledge of the strat-
egies and their ability to use them that is the basis of an appropriatelyexpressed
and organised rule of law.
First, given the requirementthatthe rule is always speaking, draftsmenchoose
linguistic forms with the meaning PERPETUAL.Similarly, since typically the
rule either commands or empowers, either MANDATORY or DISCRETION-
ARY meanings will be produced. Since the basic social role of the institutionof
law is to regulate conduct of classes of individuals, the legal rule typically
expresses GENERAL meanings.
The institutionalroles of the participantsinvolve a second set of commu-
nicative strategies. The relation between sovereign power and subject, that is,
between Parliamentand people, is one of authorityand great social distance.
Rules use linguistic forms that realise the meanings ASYMMETRICAL,FOR-
MAL, and IMPERSONAL.
Third,draftsmenwritenot only as the ammanuensesor scribesof the legislature
40
 THE LANGUAGE OF LEGISLATION

but as practitionersof a highly specialised competence with a long and self-

conscious history which requiresan equally specialised audience. In this respect,
bothdraftsmenand interpretershave certainexpectationsof what languagecan do
both to create legal powers and promote legal effectiveness. In producing the
legislativetext, draftsmenarethe vehicles of institutionalbeliefs andvalues. In the
belief that a just law is a certain law, they will employ communicativestrategies
for producing rules that have PREC1SEand EXPLICIT meanings. This will
involve technicalityon the one handand specification and repetitionon the other.
Draftsmen may also believe that certainty is best achieved by CONDENSED
meanings, that is, all or most of the ingredientsof the rule containedby means of
complex subordination,nominalisation, participialphrases within a single sen-
tence. Not only convention but also experience urges the advantage for future
interpretationof rules presented as a single semantic unit.
However, a just law may need to accommodateto changing times and unfore-
seen circumstances, so a certain amount of flexibility is desirable for some
legislative rules. Hence rules with VAGUE meanings, using judgment words.
Many legislative rules realise all or most of these meanings. A typical one for
my purposes is section 22A of the New South Wales Crimes Act, I90I, which
defines the crime of infanticide. The English law of homicide has an almost
identical section, as does the State of Victoria in Australia. As the section is set
out below, the numbered superscriptseach representan example of legislative
communicativecompetence. In Figure I the same informationis given diagram-
matically. It represents a schematisation of legislative communicative compe-
tence where the relationshipbetween the situationaland institutionalconditions,
which either determine or influence the communicative strategies and their lin-
guistic realisations, can be traced.
THE TEXT
22A(I) Where a' woman2"17by any3 wilful4 act2 or omission2 causes5 the
death of her child, being5 a' child8 under the age of twelve months,6'7but at
the time of the act or omission8 the balance of her mind was disturbed by
reason of her not having fully recovered6from the effect of lactation9conse-
quent upon9 the birth of the child,6'8 then, notwithstanding9that the circum-
stances were such that but for this section the offence would have amountedto
murder,10she'7 shall'' be guilty of infanticide,10 and may5"12 for such'6
offence be dealt with and punished'13 14 as if she had been guilty of the offence
of manslaughter'0of such16 child.15

I. a nonspecific determiner GENERAL

2. womnan1, act, omis.sioni superordinatenouns GENERAL
3. anly nonspecific pronoun GENERAL
4. wi/ful lexical item with variable VAGUE
application
5. beinig, calnses, shall be, present tense & deontic PERPETUAL
mnay l)e modals

41
 YON MALEY

6. being ... montihs, not ... . reduced clauses CONDENSED

recovered
7. twelve mnonths lexical item with specific SPECIFIC
reference
8. the aet or omission, child repetitionof lexical item, PRECISE
definite specific reference
(the)
9. notwithstanding,lactation, lexicon FORMAL
consequent upon
to. infanticide. murder, lexical item of specialised PRECISE
manslaughter use (technical)
ii. shall illocutionaryacts using MANDATORY
deontic modals
12. ma! illocutionaryacts using DISCRETIONARY
deontic modals
13. dealt with and punished passive verb forms with CONDENSED
deleted agent
14. ma! be dealt with and illocutionaryact directing ASYMMETRICAL
punished action
15. ithere a . . . child complex sentence PRECISE.
EXPLICIT
16. such adjectival anaphoric PRECISE
reference
17. a woman. she third person IMPERSONAL

This list shows how the selections made from the linguistic system are repre-
sentative of kinds of choices and kinds of meanings.
Thus Section 22A is a GENERAL rule; there is, first, a woman, which
establishes by the use of a nonspecific determinerand a superordinatenoun the
class of individualsto whom the rule applies. The class is limited when the rule
furtherprovidesthatshe will be guilty of infanticide(a TECHNICALterm)if she
causes the death of her child, being a child underthe age of twelve months. Such
SPECIFICphraseslimit the class to whom the rule applies. Section 22A applies
to a woman who kills her infantchild where infantmeans 'undertwelve months'.
If the class of woman to whom the rule applies is limited, the illegal act is not: It
is any wilful act or omission. Wilful is a VAGUE term. The case law on its
meaningis enormous;what is wilful in any situationmust always be a matterof
the facts of the situationand the mental state of the accused. So the combination
of a nonspecific determinerany and wilful importsboth generalityand a degree
of flexibility to one component of the rule. Section 22A is FORMAL, ASYM-
METRICAL, IMPERSONAL, using third person forms and words from the
formallexicon (notwithstanding,lactation, consequentupon). As a rule, Section
22A is primarilya command, that is, is a MANDATORY rule, since it provides
thata particularclass of woman shall be guilty, but also contains a permissiveor
DISCRETIONARYelement in regardto the type of punishmentthata courtmay
use. Not only technical terms but phrasaland lexical repetitionas well as anaph-
oric such attemptto make the rule unambiguousand thus PRECISE.In contrast
to the repetition, the rule is CONDENSED by means of reduced clauses and
adjectival phrases which are substitutesfor longer clausal structures.Nonethe-
42
 THE LANGUAGE OF LEGISLATION

less, it appearsto be an EXPLICITrule, since all the necessary elements of the

crime are contained within a single sentence.
Figure I schematises legislative communicative competence and shows that
the rules are legal institutionalrules, rooted in the nature and purpose of the
activity of rulemakingor legislation.

THE OPPOSITIONS OF LEGISLATIVE DISCOURSE

Figure I shows that Section 22A contains apparentlycontradictorymeanings.

Withinthe section there are the oppositions: PRECISE/ VAGUE; MANDATO-
RY / DISCRETIONARY;EXPLICIT/ CONDENSED. These oppositions are
potential sources of difficulty for interpretation.For example, the amount of
precisioncontained in the rule is significantly lessened if, at certainpoints, it is
opposed to or offset by vagueness. The phrase wilful act or omission has an
inherentvagueness that no amount of precision in vocabulary will overcome:
How can an objective standardof wilfulness ever be determined?The section is
partly discretionaryand partly mandatory.There seems to be a possibility of
arguingthat in this section may in fact means shall or must, for if the woman is
found guilty of infanticide, surely the courtcannotexercise its discretionand not
punish her as if she were guilty of manslaughter?The length and explicitness of
the single sentence section appearto imply thatevery componentof the crime has
been specified. But does a nonlactating but mentally unbalancedwoman who
kills her ten-month-oldchild receive the benefit of the provisionor has condensa-
tion of the rule prevented that particularmeaning being expressed? With such
inherentsemantic tensions, Section 22A seems less than certain.
In Australia, Section 22A has been applied; cases of women charged with
infanticidehave come before the courts and been settled. No case has turnedon
an issue of interpretation;that is to say, no plaintiff or appellant has so far
contested any aspect of its meaning. However, some interpretationmust occur
before it is applied:All parties must be in agreementas to its meaning. In R. v.
Hutty(['9531 VictorianLaw Reports),the presidingjudge felt it incumbentupon
him to interpretSection 22A, translating,as it were, from the style or registerof
legislation to a more everyday register. He instructedthe jury:

You will observe, gentlemen, that the first requirement,before a woman may
claim the benefit of this sub-section, is that the child that is killed must be
under the age of twelve months. Here you have no difficulty about that
because undoubtedlythis child was underthe age of twelve months;it met its
deathvery soon afterbirth. You will next observe thatthe section speaks of the
death of the child being caused by a wilful act or omission. "Wilful" in that
context means "intentional", and before you could convict the prisoner of
infanticideyou would have to be satisfied that she intentionallydid some act or
intentionallymade some omission which broughtabout the death of the child.
43
 l l l
IL

E 5E ED L

C~~~~~~ >, V) O "W-

fiQo f

44
 THE LANGUAGE OF LEGISLATION

If you were satisfied that the death of the child had been broughtabout by an
intentionalact or omission on the partof the prisoner,then it would be for you
to consider whether at the time she did that act or made that omission, the
balanceof her mind was disturbedby reasonof her not having fully recovered
from the effect of giving birthto the child. I suppose where you have circum-
stances establishedbefore you such as you have here, and with the deathof the
child occurringwithin a very brief time of its being born, you would have very
little doubt that the conduct of the mother - if you found it amounted to a
wilful act or omission causing the death of the child - was the productof the
ordealthatshe had undergoneand you would have very little doubt, I imagine,
that at that stage the balance of her mind was disturbedby reason of her not
having fully recovered from the birth of the child. If you were satisfied of
those matters it would be open to you to returna verdict of infanticide(per
BarryJ.).

So despite institutionalseparation, the two wings of legislative communicative

competence meet in the interpretationof the text. The courts interpretwhat the
legislaturehas enacted;the legislature, in their turn, cannot but be influencedby
their experience of what courts will do.
There are three possible explanations why rules of law like Section 22A,
despite a potential for ambiguity, remain unchallenged. In most "unpathologi-
cal" cases (as distinct from what lawyers call "hard cases"), the meaning will
be clear and undisputed- perhapsbecause the general intent of the rule or the
Act is well-known or plainly apparent,or perhapsbecause it applies in a rela-
tively straightforwardand uncontroversialarea of the law. This seems to be the
case with the law of infanticide.
Second, a rule can be both mandatoryand discretionaryif the context makes
clear that a distinction is intended. Troubles with shall/may are problems of
ambiguous illocutionaryintent; if the intent is clear, the meaning is clear.
Third, in a numberof instances, althoughnot necessarilyin the case of Section
22A, vagueness or generality or even ambiguity may be deliberatelybuilt into
the rule, because the legislatureor the particularoriginatorsof the Bill within the
legislaturesee the need for a certainamountof fuzziness. Their motives may be
political or may more simply consist of a realisationthat in a particulararea of
the law a certainamountof leeway or flexibility would be desirableto cope with
unexpectedor "hard" cases.
There is, however, always the possibility that because of generality, or
vaguenessor syntacticambiguitycaused by syntacticcondensationor some other
linguisticcause, the rule will be unclearand thus uncertain,that is to say, there is
an apparentmismatchbetween the speaker's meaning(i.e., the legislature's)and
the sentence meaning(the text). The fact thatthe meaningof Section 22A has not
yet been contesteddoes not guaranteethatit will not be contested in the future. In
such cases, it is the role of the courts to step in and interpretauthoritativelyor
45
 THE LANGUAGE OF LEGISLATION

language in legislation that a decision about language becomes a decision about

the roles of fundamentallegal and political institutions.

NOTES
i. I am grateful to my colleagues ChitraFernandoand Ruth Waterhousefor a numberof helpful
comments and criticisms on an early draft of this article, and to Professor D. Hymes and an
anonymous reviewer on a later version.
2. Austin himself drew many parallels between the special usages of law and the speech acts of
ordinarylanguage(1962:7,22,31,33). It has been noted that Austin at one stage worked very closely
in Oxford with the legal philosopherH. L. A. Hart(Pitcher 1973:2on). The similaritiesof approach
between the two, in their different areas, are fairly apparent.See, in particular,Hart (0953).
3. In the United States, the enacting formula is: "Be it enacted by the Senate and the House of
Representativesof the United States of America in Congress assembled,"
4. Historically, this is interesting. Formerly, the enacting formula preceded each section of the
Act, using the words "And be it furtherenacted," in addition to the general enacting words at the
commencement. This practice was omitted when the InterpretationAct of 1889 (United Kingdom)
provided:"8. Every section of an Act shall have effect as a substantiveenactmentwithout introduc-
tory words." The assumptionappears to be that either the enacting formula at the head of the Act
controlsthe entire set of sections or rules of law that make up the Act; or thatthe enacting formulais
to be understoodbefore each section. If the latteris the correctassumption,then clearly the lawyer is
thinkingof something in the natureof a performativeanalvsis (Ross 1970).
S. There now exists a small class of statutes, called sunset legislation, which have a specified,
limited duration(Enright 1983:95).
6. In some jurisdictions, it is now possible to call upon the evidence of Parliamentarydebate or
other extrinsic materialto determine the intentionof the legislature and facilitate interpretation.
7. Per Lord Simonds (Magor and St Mellons R.D.C. v. Newport Corporation [1952] Appeals
Court [United Kingdom] at 189-90).
8. For mav construedas mandatory,see Baron Inchvra v. Jennings 119651 2 (All EnglandReports
714); for shall construedas discretionary,see Chanter v. Blackwood I (CommonwealthLaw Reports
[Australia]39).
9. In the United States, the professionof draftingis not so centralisedand laws may be draftedby
many different people or groups of people acting either privately or professionally.
I0. The fiction of legislative or legal certaintyhas been stronglyattacked. In particular,see Frank
(1930) and Llewellyn (1951). proponentsof American Legal Realism.

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