Legislative Drafting: Goals, Concepts & Knowledge

• Legislative drafting is a well-cultivated art in civilized countries, but theoretical writing on the subject is scarce.

The Goals of Legislative Drafting

• Knowing the goal is essential for employing one's talent in drafting.
• Workshops, conferences, and training courses are helpful in devising and improving the means to attain goals and self-improvement.
• Successful drafting requires self-scrutiny, self-criticism, a desire to identify imperfections, and a willingness to learn continuously.

Legislative Drafting: The Concept

• Legislative drafting includes drafting legislation and any writing arising from it.
• In modern times, a draftsman must be familiar with drafting instruments, orders, documents, and notifications that arise from legislation.
• While legislation is the parent, subordinate legislation is the offspring, resulting in potentially limitless written material for the draftsman.

Knowledge Required for Legislative Drafting

• Draftsmen need more than just drafting techniques; they need a broader understanding.
• Legislative drafting affects human activity, administrators, the judiciary, law enforcers, and the general public.
• A judge advised a young law aspirant to explore art, music, and literature to enrich the mind, suggesting law will come naturally thereafter.
• Legal drafting should consider the real-life impact of the drafted law, as it is not just mental gymnastics or an intellectual exercise.

Qualities of a Good Draftsman

• Three major qualities for a good draftsman include familiarity with the law in general, mastery of language, and familiarity with the Constitution and statute book.

Knowledge of Law

• Familiarity with the law in general is fundamental for a draftsman.
• It is incorrect to assume that a person good at drafting lacks legal knowledge.
• A draftsman cannot draft satisfactorily without knowing the law in general, because the output becomes part of the law.
• The law functions like a continuous stream, where touching it at one point affects many points.

Mastery of Language

• Draftsmen require mastery over language, using it as the primary medium of their work.
• Draftsmen must be sensitive to words, sentence structure, arrangement, choice of diction, strength, and elegance, which is the road to excellence.
• The draft must possess the majesty of law, the authority of a command, neutrality, and limpid grace.

The Road to Excellence

• Being sensitive to language and word choice is crucial for excellence in drafting.
• When imposing obligations, draftsmen must carefully choose from options like "immediately," "forthwith," "as soon as possible," or "within a reasonable time."
• A thesaurus, legal dictionaries, and multilingual dictionaries (English, French, German, Latin) can aid in enhancing word choice.
• Legal dictionaries help define words like "reasonable," "just," "proper," or "moral turpitude" for legal implications.

Knowledge of Constitution and Statutes

• Draftsmen must have a close understanding of the Constitution and statute book.
• The Constitution sets the norms for legislation, and drafted laws must not conflict with it.
• Knowledge of fundamental rights is crucial, especially for countries like India.

Knowledge of Statute Book

• The draftsperson must have mastery of the statute book.
• Even a law that has been repealed can still be a useful model.
• Draftsmen must know whether a matter is already covered by a specific law and how the new law will relate to existing laws.

The Process of Drafting

• The process of drafting begins similar to how a poem or literary work comes into existence.
• Instructions from a ministry initiate a factual stage, followed by an intellectual stage where the draftsman uses existing legal knowledge to analyze the situation.
• The creative stage involves reducing proposals to words, requiring knowledge of law, language, and legislation.
• The draftsman is like an architect in words, creating a linguistic specimen reflecting the proposed law, harmonizing with the Constitution and existing law.

Revising The Draft

• After creating an initial draft, the draftsman revises it, striking out and rearranging words.
• The draftsman should devote maximum time to this revision process to improve the selected words.

Avoiding Ambiguity

• A good draftsman avoids ambiguity and re-writes drafts to eliminate it.
• The draftsman's mind remains occupied even when away from the desk, allowing for finer language and clearer implications to emerge.
• Draftsmen often consult colleagues and even laypersons for suggestions, as experts can sometimes have a limited vision.