Legislative Drafting is the theory and forms of writing law. Much as poetics is the discipline of composing verse documents, legislative drafting is the discipine of composing legal documents.
It might seem unexpected to find a website which argues a link between poetics and legal writing – the two fields seem, perhaps, to be far from each other in their settings. On the one hand, we have a vastly underpaid aesthetic pursuit and on the other an (arguably) vastly overpaid utilitarian one.
On closer examination however, the two areas should not be perceived as very different: they are both areas of writing with long-established traditions and guiding principle as well as new areas of concern and evolving perspectives. The two forms of writing are also ultimately concerned with similar, if not identical, topics and purposes.
Why Legislative Drafting?
Just as poetry is a fundamental, continuous and necessary aesthetic pursuit, the writing of law is a fundamental, continuous and necessary social pursuit. Poetry is primarily concerned with the representation of individual and collective aesthetic expressions. Poetry is a codification of individual, subjective experience. Meanwhile, societies also require that its values, aspirations and expectations be represented in the codes, symbols, grammars and syntax of language. Legislative Drafting is oriented to satisfy this more collective and objective experience.
Poetry and legal writing may simultaneously claim to be the oldest forms of human documentation.
While the Epic of Gilgamesh is accepted by many scholars as the oldest surviving work of literature, several of the world’s most ancient documents are legal documents. The oldest legal code is the Code of Ur-Nammu. Both of these documents survive in the form of Sumerian (Mesopotamian) tablets dating from approximately 2100-2050 BC.
In some cases ancient documents are simultaneously legal (i.e. regulative or governing in nature) and poetic. Consider the Koran and the Christian Bible as leading, if not exclusive examples of this scenario.
Poetic and legal documents have always been incredibly important social literary forms.
Unlike poetry, legal writing relies much less upon established social use of language than upon its own traditions. Legal definitions often diverge from common definitions of words.
Legislative Drafting also strives to be a minimalist form as modern practitioners attempt to simplify and condense documents to the simplest and clearest possible forms.
Legislative drafting is a vital form of communication for the future. Despite complicated legal terminology and an unfortunate continuation of Latinized terminology which tend to alienate people from legal documents, legal documents remain critical to the governance and administration of people’s daily lives. Consider that laws, rules, contracts, policies and other such documents are among the most common documents which people encounter which have a direct individual and sometimes universal relevance to a person’s life. Often whether the person is aware of it or not.
The composition of law is a discipline which requires focus, precision, technical judgement, imagination and an appreciation of the shared communal resource that is law. These are skills which support and develop communication skills – these are skills developed by serious poets as they explore demanding traditional forms of poetry. In a global cultural environment where more and more information is common and open (i.e. communal), the ability to convey information concisely, accurately and memorably is a competitive value.
David Macneil and Shannon Dean wrote in Canadian Parliamentary Review (2010)
Due to the retirement of a large number of drafting experts both in Canada and around the world, as well as the limited number of educational opportunities in the field, a shortage of legislative drafting expertise appears to be looming in a wide range of jurisdictions.
Are you a disciplined poet looking for a way to put your writing and critical thinking skills to work in an exacting and formalized setting? Maybe legislative drafting is the historic and demanding writing career option you’ve been looking for.
Legislative Drafting in Canada
Athabasca University offers a Post-Baccalaureate Diploma in Legislative Drafting (PBDLD) program within its Faculty of Humanities and Social Sciences. In 2018, the Canadian Institute for the Administration of Justice will be hosting the bi-annual legislative drafting conference
The 2018 bi-annual Legislative Drafting Conference will tackle one of the most pervasive challenges in modern legislation: complexity, beginning with its principal drivers in public policy. Why does our world generate legislative complexity? And how can legislation address this complexity intelligibly, coherently and effectively? Conference sessions will also focus on examples of today’s complexity challenges in international trading relationships, cannabis de-criminalization and the interaction of state law with indigenous legal traditions. Other sessions will focus on pragmatic drafting solutions to particular facets of these challenges, such as interjurisdictional coherence, resolving policy blockages, drafting for clients with limited policy-resources and achieving legislative coherence over time. The conference will include a wide range of speakers from Canada, the UK and beyond.
References and Citations
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- Original draft: July 12, 2018
- Updated July 20, 2018