The relationship between legislative drafting and statutory interpretation

Abstract

This thesis aims to provide a wider knowledge of Legislative Drafting, Statutory Interpretation and the importance the linguistic aspect of law has in these two areas because ultimately laws are communicated through language. Initially law was largely unwritten but eventually the legal subjects, because they wanted more security, insisted upon its being written down. Consequently the use of language in the law has developed into a very complex and much discussed topic. Throughout the ages legal language has become more intricate and specialised which regrettably has resulted in lack of clarity and coherence in legislative enactments. The very subjects who insisted upon its development and towards whom the law is directed now can barely understand it! Therefore a movement towards the use of plainer language in the law has developed. The First Chapter explains and compares theories about the communicative and linguistic aspects of the law. The way these theories have been put forward by their respective exponents in itself highlights the fact that law although it is written in plain English takes a meaning of its own and is understood extensively only by a few select people. Which is why the necessity to interpret the law becomes very prevalent. Consequently the Second and Third Chapters explain in detail the aids to construction and the rules of statutory interpretation. The Common Law Courts have throughout the ages shown a very entrepreneurial spirit in this regard. As a matter of fact interpretation of statutory law has developed from literal and sometimes even verging on the absurd to purposive. Purposive interpretation aims to give weight to the true parliamentary intention. Thus the legislative drafter assumes a very important role at this point. Sound governance depends upon legislation that says the right thing in the right way, in language that is as dear and accessible as possible. The Fourth Chapter deals precisely with the problems encountered during the drafting stages of an enactment and also with the parameters within which the draftsman has to operate. A comparison between France, Sweden, Malta and the UK is made in order to highlight the fact that, if there is an established and defined system of law-making, laws can be more accessible to the public, accurate, uniform and dear.