the language of legislation

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The Language of LegislationAuthor(s): Yon MaleyReviewed work(s):Source: Language in Society, Vol. 16, No. 1 (Mar., 1987), pp. 25-48Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/4167814 .

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Lang. Soc. I6, 25-48. Printed n the United States of America

The languageof legislation'YON MALEYSchool of English and LinguisticsMacquarie Universitv

A B STR ACTThecharacteristics f the languageof legislationarederived fromits role inthe institutionof law. An analysis of the institutionalcontext reveals linksamonghistory, social function, participant oles, acceptedgoals of legisla-tion, and language use. The natureof an Act of Parliamentas a perpetualspeech act creates a frozen authoritative ext so that the language itselfbecomes a componentof the law. If legislation is to be both stable andflexible, institutionalcommunicativestrategiesarerequired o organiselin-guistic means to these sociolinguistic ends. (Law, legislation. register,speech acts, communicativecompetence, communicativestrategies)

INTRODUCTIONThe characteristicsof legislative languagewithin the institutionsof EnglishandEnglish-derived aw need little demonstration.Its distinctive markersareeasilycharacterisedand have been commented on by a number of writers. The mostfrequentlymentionedare archaic, foreign, uncommonwords(Mellinkoff I963:1 , 1982:3); long, complex sentenceswith intricatepatternsof coordinationandsubordinationCrystal& Davy 1969:204; Gustafsson 1975:22; Bhatia 1982:7);repetition Danet 1980:478);passive voice (Danet 1980:479; Finegan 1982:115)- anda complete absence of colour andhumanity. It is commonly agreed to be acomplex, intricate, even bizarrestyle of language. This complexity and eso-tericism are odd and requireexplanation. Legislation is the largest and mostimportantource of law in oursociety, affecting the life of theordinary itizen indozens of small and large ways. Yet as an English publication, The RentonReporton thePreparationof Legislation, pointsout, even professional nterpret-ers of the law, the lawyers and judges, find that at times the way the law isdrafted s "an impenetrablebarrier o understandingt." The Report adds:

To the ordinarycitizen the provisions in the statute book mightsometimes aswell be writtenin a foreign language for all the help he may expect to obtainthere as to his rightsand duties under the law. And this in an age . . . whenthe statutelaw has a growing effect on practicallyevery sphere of daily life(Renton 1975:37).

0 1987 CambridgeUniversity Press 0047-4045/87 $5.oo25

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Itseems, then, thatthecharacteristicshatmark egislativelanguageas a separatestyle of language are the characteristicsthat prevent it from communicatingefficiently to its users. How can this situationhave arisen?Why is it allowed tocontinue?In this article I shall offer an historical and functional explanationfor thepresence and persistenceof the criterialand characteristic orms of legislativelanguage. While not seeking to justify its oddities or minimise its areas ofdysfunction,I shall attempt o show the extent to which legislativelanguage,orlegislative discourse, is a motivated, use-based style or register (Halliday1978:32) of English.I have chosen bothAustralianandEnglish law andtextual data for discussionfortwo reasons:as an Australian,Australian aw andlegal languageareat handand familiarto me; yet Australian law or legal language cannot be explainedexcept by referenceto Englishlaw fromwhich itdevelopedandto whichit is, tosome extent, still tied. This is not to suggestthatAustralian aw does not have alife of its own. Itdoes, but in common withotherexcolonial countries, it is partof one legal family (David & Brierley 1978:20) and, to some extent, one legalculture(Stone 1968:23;Friedmann1975:209). These countriesare the inheritorsof the common law legal system which developed in Englandfrom the time ofthe NormanConquest and spread widely over the world in the following cen-

turies, usually as a result of colonisation. The termfamily suggests the verygeneral nature of the similarities that these systems now share. They can belikenedto dialects of a language. Each sharesa stratumof structure, unction,attitudes,andvaluesthatmakesfor mutual ntelligibilityandcommunication; eteach has developed regional differences and regional loyalties. For functionaland historical reasons, the legal systems and legal cultures of EnglandandAustraliaare probablycloser thanthe systems and culturesof EnglandandtheUnited States. Yet considerablesimilaritiescan be foundamongthe membersofthe family. So those generalisationsthat,apply to Anglo-Australian aw andlanguage apply also - with some qualifications in each case that cannot bepursuedhere- to the law andlanguageof the UnitedStates, Canada,andIndia.THE INSTITUTIONAL SITUATIONI shall assume here that the sociolegal context gives rise to a specific kind orsubsetof communicativecompetence (Hymes 1972, 1982); that is, legislativecommunicativecompetence, which is a set of communicativestrategiesencom-passing what a specialised group of individualsin the exercise of their institu-tionalroles know anddo to produceappropriate nd valid legislationand, whennecessary, interprett. Unlike manyotherkindsof communicativecompetence,legislativecommunicativecompetenceis notsimply ""pickedp"; it is a learnedcommunicative kill orcraftwhichproducesa craftbounddiscourse(Ross 1981),an insider language which is subject to special conditions of production and

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THE LANGUAGE OF LEGISLATION

interpretation.The focus of this article is on the productionof legislation andthus on those strategies, in the sense of ways of organising linguistic means inrelation o ends, that underlieand areresponsiblefor legislativediscourse, in thesense of an organisationof means in relationto ends (Hymes I982:107), in theAnglo-Australian egislative situation. Legislative communicativecompetencelinks the relevantcategories or dimensions of the institutionalsituationto thelinguisticforms and organisationand reveals the dynamicsof the relationship:how situationaldimensions influence and even determine linguistic choice andhow the text so produced tself becomes a constitutive partof the legal process.The relevantdimensions of situationare three-fold:i. The Nature of Legislation: its social function, its structural lements;2. TheParticipantRoles: the natureof and interrelationshipsmong the rolesthatthe participants n the situation type perform;3. The InstitutionalGoals: the desirable semantic or pragmaticqualities thatthe text should possess in order to serve perceived institutionaland social needsand values.

THE NATURE OF LEGISLATIONAn Australian egal textbook defines a statute in this way:

A statute s a documentenactedby a legislativebody constitutedaccordingtosome constitutional ormula. Its words are law. The legislaturewhen it enactsstatutes (or Acts of Parliamentas they are most often called) proposes tocontrol action, usually only in the future, by the words contained in thelegislation (Derham 1971:201).Controllingactionsby words;here is the key to the understanding f legislativelanguage. When the legislature enacts a statute, it is performingspeech acts inthe classic, performative,Austinian sense (1962:149).2 These performativeactsaresimultaneously inguistic andlegal, as the term used in Anglo-Australianawmakes clear - an Act of Parliament.Legislativeactions areperformedby meansof words and the words of the law are the law. All statutes are framed within aglobalor macro(van Dijk 1977:238) performativellocutionaryact, theenactingformula. In English statutes it runs thus: "Be it enacted by the Queen's MostExcellent Majesty, by and with the advice and consent of the LordsSpiritualandTemporal,and the Commons, in this presentParliamentassembled, and by theauthorityof the same, as follows:"3The successful performance of the enacting formula presupposes a set ofinstitutional onditions:Within a legally constituted egislature, the Bill must bepassedby both Houses or Chambers in a bicameral egislature)and receive theRoyal Assent (in Australia,conferredby theQueen's Representative).The docu-ment is called a Bill before it has been passed by Parliamentand received theRoyalAssent. Only if these conditions aremet does the enacting formulaenact a

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valid statute. In the legal context, successful means valid and the statute as awhole is an operative instrument(Hart 1961:31; Austin 1970:236). The sub-stanceof the statute,what is in fact enactedor made law by the utteranceof theenactingformula n the appropriatenstitutional onditions,is considered o be aset of separateenactments, set out in numbered ections, which frequentlycon-tainsubsections.The individualsections, each with its own operativeorenac ingverb(Coode [18521 1973:329), areembeddedwithinthe global illocutionaryactwhich is the enacting formula.4The substanceof the statute,in keeping with its dual role as an act of languageand anactof law, constitutesa text of a very specialcharacter.Thebindingforceof thestatute s now attached o a verbalformulationwhich, once enacted, existsindefinitelyor untilrepealed. The words may be ambiguous, incomplete,or noteven an accuraterepresentation f the legislature'sintention. Butunlessamend-ed or repealed, the words must stand as they are.5 They are authoritativeaswords. Moreover, there is limited opportunity or adducingevidence from anyothersource, includingParliament r the draftsman,as to whatthe statutemightmean but does not completely or clearly say.6The authority of the statute/text is reinforcedand given continuity by anassumptionor fiction thatthe words of the statuteare continuallyspeaking:"Astatute once passed is deemed to be perpetual"(Hampsonv. Pizzinato 119651New SouthWales Reports). The historian, Plucknett,suggests thatthe origin ofthe role of legislation as a fixed, canonical text, can be tracedbackas far as thefourteenth entury, whenthe judiciaryfirst began to separate n function rom theKing's Council, the embryo legislature:

Towardsthe middle of the fourteenth century . . . the judges began to in-terpretstatutes strictly. No longer are they to be regarded as merely sug-gestions of policy within whose broadlimits the courtcan exercise a broaddiscretion. Instead hey areregardedas texts which are to be appliedexactlyasthey stand, and so we find the beginningsof a radicalseparation nto twofunctions: he first legislatesandestablishes a text, the second adjudicatesandinterprets he text. The separationwas momentousfor English history, formore than anything else it promotedthe isolation of the law courts and thejudges, enabling themto develop an independentposition and to act as checksupon the executive and as critics of the legislature(Plucknett1940:297).The two functionsproduced by the ""radicaleparation" are still maintainedseparately (see the following section, Roles of the Participants), upportedbydoctrineof the separationof powers, thatis, of theexecutive, the legislature,andthejudiciary.So the rightof the legislature o produce egislationandthedutyofthejudiciaryto interpret t are centralto our political andlegal systems. Thetext,the enacted words, is the common link and the basis on which each functionmaintainsand exercises its position.The Anglo-Australian raditionhas been to maintainthe strictseparationbe-

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tween legislationand interpretation,hatis, betweentheproductiveand semanticwings of legislative communicativecompetence. Courts avoid what has beencalled "the nakedusurpation f the legislativefunction"7andtend(with, it mustbe admitted,some notableexceptions)to interprethe legislativetext strictlyandliterally.Courtsin the United States have been more flexible and more adven-turous,and the role of the courts in actually makingand shaping law throughstatutory nterpretations more explicitly recognised. Nonetheless, whether aliteralor a creative approach s taken, British,Australian,andU.S. courtsretaina centralfocus on the text as text; it remainsbasic and central(Hurst 1982:46).This emphasiscontrastswith the European raditionof legislationandinterpreta-tion which treats the text as a guide only (Bennion i983:1).An understandingof the role and status accordedto a statute as a "'frozenbindingtext" (Twining& Miers 1976:120) is crucial to an understanding f theinstitutionof legislationandto an explanationof the characteristicandenduringformsof legislative language. First, the variousprovisionsof the statute/textasset out in the enacted sections and subsectionsare characterisedas rules. Eventhough they are a mixture of declaratoryand directory speech acts (Searle1979:28), their commonfeature s thatlegal rules ""do ot presenta modelof theworld but a modelfor it" (MacCormick1978:104). The invariablegrammaticalformwhichexpressesthe ruleis a declarativesentence, the illocutionary orceofwhich, however, is never that of a statement. Thus Section 3 of the UnitedKingdom's (U.K.) House of Commons DisqualificationAct, 1975, is a rulewhich defines a relevant legal category:

(3) In this section -police authoritymeans any police authoritywithin the meaning . . .Section 2(1) of the New South Wales CrimesAct, 9goo, performatively epealsearlier Acts:

2.(l ) The Acts mentioned in the First Schedule hereto are, to the extenttherein expressed, herebyrepealed, except as to offences . . .Defining and repealing are fairly common illocutionaryacts in legislation.They are, however, subsidiary to those used to perform the central role oflegislation, that is, the creation by means of correctlyenacted speech acts, ofrightsand duties. Characteristically, aws create rights and duties in one of twoways: They commandor empower. In legal terminology, they are either MAN-DATORYor DISCRETIONARY.Discretionary ypes have two subcategories,directoryor permissive, a distinctionbetween substantive and procedural aw,which need not concern us here (Pearce 1974:126). By this dichotomy, the lawsets up two important ategories of legal illocutionaryact. Mandatoryllocution-ary acts have the force of commandswhich impose an obligationto act or not toact; discretionary llocutionaryacts confer a power which may or may not beexercised. Characteristically,he modals must and shall are used in the perfor-

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manceof mandatoryllocutionaryacts, and may is used for the performance fdiscretionaryacts. In this use, they express, performatively,deontic modality,relatingto the actionof the speaker in giving permissionor layingan obligation(Palmer 1979:35). Thus in Section 4 of the U.K. House of Commons Dis-qualificationAct, 1975, "'shallbe treated"appears o createa rule with the forceof a command:4. For the purposesof the provisionsof this Act relating o the vacationof theseat of a memberof the House of Commonswho becomes disqualifiedby thisAct for membership of that House, the office of steward or bailiff of herMajesty'sthreeChiltemHundred'sof Stoke, DesboroughandBurnham,orofthe Manor of Northstead, shall be treated as included among the officesdescribedin 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 notorioussources of ambiguity in legislative interpretation.That is to say, it may be argued in a particular ase that the legislaturedid notintendthat shall be mandatory have the force of a command) and thatthere iscontextual evidence within the Act that the meaning be discretionaryonly. Insuch cases, courts in effect, if they agree with the argument, decide thatshallmeans may or vice versa (Maley 1977:6).8Such apparentreversalsof semantic commonsense are forceduponcourtsbythe statusof the text as therealisationor embodimentof the legislature'scommu-nicative intention. When the text says something absurdor in conflict withothercontextualevidence, the courtscannot change the text. They can only give it themeaningthatthey infer the legislatureintended.If the legislaturedoes not likethe interpretation, t is up to the legislature to amendthe text.The institutionalview of a statuteas a set of rulesin fixed verbalformthatareforeverspeaking has, then, these consequences:1. Use of a global illocutionaryact whichenactstheentirestatute,in the formbe it enactedbyX that Y . . . whereX is the sovereignpowerandY is the set ofsections that make up the statute/text.2. Use of deontic modals, in the enacting verb of the section or subsectionwherethe speech acts are acts of commandingorempowering; or other kindsofillocutionaryacts performedby the enacting verbs the tense is always present.Both modals and present tense verbs are performative n that their validly per-formed utteranceas part of the statuteperformsa social act of some kind -commanding, empowering,repealing, defining, and so on.Failure o use these formswould meanthatthe legislativerule was not a rule, asthe institutionof legislation andlaw currentlyunderstands t andas it is currently

functioning.These linguisticformsare criterialto legislative languageandtheyare impliedby the role that the institutionas a whole accordsthe text.There is anotherconsequenceof the fact that legislationis a set of perpetualrulesof action: the generalityof the legal rule. Rules of law, typically, concern30



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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 generalthanothers in that theyare applicable o a wider class of individuals,acts, events than others. 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, theSpeakerof the House of Commons wouldbe required o issue duringa recessof that House a warrant ora new writ forelectionof a member,in the roomofa memberbecoming disqualified by this Act, he may, if it appears o him thatanopportunity hould be given to the House to considerthemakingof anorderunder subsection (2) above, defer the issue of his warrantpending the deter-mination of that House (U.K. House of Commons Disqualification Act,1975).

Section221 is a rule of great generality:Itapplies universallywithin thejurisdic-tion of the legislature. Its universality s achievedby the realisationof the legalsubject (that is, the class of entity to whom the law applies) by the nonspecificpronounWhosoever.Modem statutes prefer the phrase anv person who or aperson who but the effect of the phraseis equallynonspecificanduniversal. Onthe other hand, Section 6.(4) of the House of CommonsDisqualificationAct hasas its legal subject a limited and specified class of person, that is, the personoccupying the position and carryingout the institutionalrole assumed by theSpeakerof the House of Commons. Generalityof some kind, then, is charac-teristicof a ruleof law. It is notcriterial, however. In some cases, the legislaturelegislates for specific individuals, companies, and organisations. It has beenarguedthat such legislation confers legal privileges only - they areprivilegiarather han leges (Maitland 1908:382).THE ROLES OF THE PARTICIPANTSTraditional egal theory identifiestwo participants nly in thecommunicativeactof legislation: sovereign and subject. Laws emanatefromthe sovereign or sov-ereign power (the Queen-in-Parliamentn the United Kingdom and Australia)and are directedat those individualssubjectto that sovereign power. In reality,thesituation s morecomplex, andfourparticipant oles can be identified:on theproduction ide, SOURCE and DRAFTSMAN;on the interpretation ide, AU-DIENCE and INTERPRETER.The SOURCE of the statute is the legislature itself, whose communicativeintentionthe words of the statute are deemed to express. This is the sovereign

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power which alone has authority to make laws for the particular urisdiction(althoughit frequentlydelegates partof that authority).Who the legislature s,what it comprises,varies from system to system and fromjurisdiction o jurisdic-tion. The legislature nstructsthe DRAFTSMANas to the substanceof the Bill(as it is at this stage), that is, its intendedmeaning. In practice, this usuallymeans that a governmentdepartment r a memberor membersof the legislature,dependingon theoriginof the Bill, instructs he draftsman, hatis, an individualwhose occupation s to draftrules of law. He or she is a public servant rained orjust that task. This has not always been the case. Over the centuries,laws havebeen draftedby judges, officials, lawyers. There has only been a profession ofdraftingsince the nineteenthcentury, and the office of the ParliamentaryCoun-sel, which is the specialised branchof governmentwhich in England and Aus-traliacarries out the bulk of government draftingwork, was first established inEngland in 1869 (Renton 1975:5).9 There is also a small class of statutes thathave been writtenby a memberof the legislatureor someone assisting him; theseare known as private member's bills. But the vast majorityof statutes on thestatute book (the body of current aw) have been written by professionaldrafts-men. Even so, they are by no means homogeneous documentsin the sense thateach has a single authoror draftsman.Some are veryold and usually have beenconsiderablyalteredover the years by legal processesof amendmentandrepealperformedby laterdraftsmen,in a piecemeal way. It is a rarestatute, ancientormodern,that does not contain additionalor amendedmaterial,so there is rarelyasingle DRAFTSMAN for any statute.The text of a statute, then, is the productof a collaboration, in the firstinstance, betweenthe legislatureand the draftsman ndmay include amendmentsthat have been madeor required n Parliamentary ebate. Where the responsibil-ity for this text lies depends on the points of view taken. Intermsof the substanceof the enactmentor statute, the meaningthat the wordscarry,the legislaturemustbe assumedresponsible. What is said is what the legislatureintended to say,since the wordsof the statuteare the chief evidence of the legislature's ntention.In terms of the rulesof drafting style for translating hat substance into a validandeffective Act, then the draftsman s responsible.The AUDIENCEof the statuteis the general public underthejurisdictionofthe legislature,or a particulardefinedsection of it, provided hey arenotminors,insane,or imbeciles. However, becauseof theircomplexity,bothof contentandexpression, statutesassume and requirethe existence of a specialised INTER-PRETERto interpretor construe their meaning. These specialised interpretersmay be lawyers, public servants, accountants,and - most importantlywhenthereis disputeas to whatis meant- the courts.Onlythecourt'sinterpretationsauthoritativeand binding.The situation outlined above contains two institutionallybased dyads: thesovereign power (the source) and those subject to the Act (the audience);anddraftsman and professional interpreter.Each dyadic relationshiphas conse-

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quences for legislative language.The sovereign power and subjectrelationshipsa relationshipof greatsocial distanceanddifferentialpowerrelations.Thus, theenacting formulawhichprefacesa statutebegins, "Be it enactedby theQueen'sMost Excellent Majesty . . ." The verb form, a jussive subjunctive,explicitly,that is, performatively,enacts the statute but it also reflects the authorityof thelegislature(in its role as sovereign power) and the status differentiationby theuse of passive voice, the lexical items which are both archaicand formal, and thecapitalisationof the names.Within the body of the statute, the variousspeech acts which create rules oflaw also reflect the relationshipof authorityand statusdifferentiation. Rulegiv-ing of any kind involves asymmetrywhen one partyhas the authority o regulatethe actionsof others. When that regulation s to be done by means of speechactsandthe participantso the speech act aredistanced,unknownpersonallyto eachother, and participantsonly by virtue of their institutionalrole, formalityandimpersonalityare predictablecommunicativemodes or strategies.Thus,

237. Whosoevermaliciously attemptsto set fire to, or cast away, or destroy,any such vessel, shall be liable to penal servitudefor fourteenyears (NewSouthWales Crimes Act, 190I).The form "'whosoever[does] . . . shall be liable . . ." is a common form forsections which define or set out the elements of a crime. But other forms areused:

1.(2) A personguilty of an offence under hisAct shall be liable, on convictionon indictment, o imprisonment or life (U.K. Taking of HostagesAct, 1982)."Whosoever" and "'a person" are third personindefinite nominals, and it is inthis formaland unspecific way that the locutionarysource of a rule of law, thesovereign power, addresses ts audience, its subjects. Itappears o be addressingthe worldat large, althoughin practical ermsthe audienceis thatsection of thejurisdiction o whom the law is directed. Theseexamples show, too, that legisla-tive language uses the category of person in a characteristicway, completelyeschewing first and second person forms.The deontic modal shall performsand createsa rule of obligationin the mostformalway. Thatis, a rule of obligation couldbe phrased n the formIf X does Y,X is liable . . or must . . Legislative rules characteristicallyuse the formaland (except for rules and regulations) archaicform shall with its overtones ofauthorityand power.The second dyad is a relationshipbetween specialists. The relationshiprestsupon a very large body of shared meaningsof various kinds, chiefly but notexclusively legal. In the most general and to the layperson, elusive, sense, bothdraftsmanand professional interpreter all upon a backgroundof sharedknowl-edge andassumptionsabout legal andpoliticalprinciples and processes. This is

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the sociolegal context in its widest sense. To give an example: The AustraliandraftBill of Rights proposesto enablea HumanRightsCommissionto conductcompulsoryconferences "in such manneras the person presiding at the con-ferencethinks fit" (35.2). The literalmeaningis quiteclear, but the social andlegal implicationsof such a provision are quite profoundand are immediatelyapparent o a lawyerbutnot necessarily to a layperson.The provision, in effect,will suspendall the usual and historical "safeguards"of the law of evidence,presumably n the interestsof rendering heenquiryunder heproposedAct moreflexible and informal.Morenarrowly,the sharedmeaningscan be characterisedas technicalmean-ings, that is, meaningswhichareuniqueto a specialised or craft-bound ituationand which conceptualiseand classify extralinguisticrealityalong lines that areeithertheoreticallyor pragmaticallydesirable for the subjectmatteror situationtype. Technicalityin legislationmay be eithertechnicalityof the subject matterlegislated for (e.g., an Act which regulatesand specifies economic or engineer-ing standards)or purelylegal concepts (e.g., those of propertyandpossession).The technicalvocabularyof law andlegislationis largelyFrench norigin,andits development s linked, by legal historians, with the need to findterms for theconceptsof a growing social institutionso thatthe growth of specifically legalconcepts andspecifically legal termsfor thoseconceptsmeant thegrowthof thelaw itself. As it has developed, technicalityin the vocabularyof the law gener-ally has two aspects: technical terms and terms of art. A term of art is "'atechnical word with specific meaning" (Mellinkoff 1963:17). To the layperson.this seems ratherlike a distinction without a difference, since the commonlyaccepted definition of a technical term is that it has a specific meaning in aspecific sphere of activity. The differenceappears o lie in the factthat a termofarthas an explicitly fixed meaning, whereasa technical term is a specialtermoflaw butthe content of its meaningmaychange in contextor over time. Lawyersassume that a term of artalways bearsthe same meaningin whatevercontext itappears. ""Its sufficient for the lawyer's purpose of the momentthatwith thetermsof artthe effect of context on meaninghas become more limited thanformost words. That is the essence of the 'termof art'" (Mellinkoff 1963:391).Examplesof terms of artare:alibi, bail, certiorari,defendant,ex parte,felonv,plaintiff, stare decisis (Mellinkoff 1963:17). However, a technical term likemanslaughterhasonly a relativelyfixed meaning.It is a technicaltermin thatitis a specialised term used by participantsn a particularphereof activitybutthemeaningof the term is not absolutelyfixed. The componentsof the crime andthus the meaningof the word may vary over a periodof time and accordingtostatutoryregulationor judicial decision (Maley 1985).

Nonetheless, at any one time, such termshave a stablecore of meaningandhave paradigmaticvalue by virtue of their participation n lexical fields. Thespecialisedlegislativecompetenceof the draftsmanand professional nterpreterconsists to a large part of knowledge of the semantic oppositions and rela-34



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tionships within such fields. To the extent that it is specialised knowledge, suchcompetence is not shared by the audienceof legislative discourse, that is, bythose membersof the public subjectto the Act.THE GOALS OF LEGISLATIONOf all values, the law prizes certaintyabove all - even, occasionally, above theclaims of justice: "Insofar as any generalisationcan approximate he truth, itmaybe said that it is moreimportantor a rule of law to be certain han it is for itto bejust" (Wade 1940:X87).Remarkssuch as this areunlikelyto endear aw orlawyersto laypeoplewho cherish the notion that the chief purposeof law is toprovide ustice. But the reasoningbehind a so apparentlybizarrepointof view isthat, indeed, certaintyis a prerequisiteof justice and uncertainty s a source ofinjustice. If laws are unclear, inadequate, ambiguous - that is, uncertain-peoplecannot order heir affairsfromday to day forthey will not know the scopeof the law. When a law has legal certainty,its effects can be recognisedimmedi-ately, without confirmation by decisions in the courts (Renton 1975:57). InEnglishand Australian egislation, legislative rules contain featuresof languageand organisationthat are directly attributable o the pursuitof certainty. Thelinguisticforms of the legislative rule are selected so thatthey are explicit andprecise.Explic tnessThis involves draftinga detailedand, if possible, exhaustive rule. The languageof the rule refers to all the possible entities or actions to which the legislatureintends the rule will apply. Thus:

140. Whosoever -steals, or destroysor damages with intent to steal the whole, or any part, ofany tree, sapling, shrub, or plant, or any underwood, growing in any park,pleasure ground, garden, orchard,or avenue, or in any ground belonging toany dwelling house, where the value of the article stolen, or the amountofinjurydone, exceeds two dollars, orsteals, or destroys or damages with intentto steal, the whole, or any part,ofany tree, sapling, shrub, or plant, or any underwood respectively growingelsewhere than in any situation before mentioned, where the value of thearticlestolen, or the amountof injurydone, exceeds ten dollars,shall be liable to be punished as for larceny(New South Wales Crimes Act,1900).

Sectionsof this type are common in English, Australian,and also U.S. law. Thedraftsmanattempts to cover every possible eventuality, every possible instanceof the proscribed behaviour that can conceivably occur. Explicitness derives35



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from the distinctions made(whole,oranypart . . ), fromthe specificationofthe membersof the class of objects and the class of actionsfalling under he rule(tree, sapling, shrub,plant, underwood . . .; destrovs, steals, etc.). Insofarasexplicitness covers all items of a relevantclass, any gives universal,unqualifiedapplication.Note that the second paragraph epeats the first part of the first paragraph,itemising the proscribedactions and their goals. The repetition makes explicitwhat is sharedby both rules. It has the secondaryeffect of minimising he risk ofambiguity that the use of such pronouns as they, it, or these might cause.Repetitionrather hanpronominalreference is the preferred ohesive device.PrecisionLegal drafting seeks "a degree of precision and internalcoherence rarely metoutside the languageof formal logic or mathematics" Dickerson1965:5). Legallanguage, then, must not only be precise, it must be more precise thanotherstyles of language. A frequentlyquoted judicial dictum makes this point. In reCastioni, thejudge referred o

. . . thatdegree of precision which is essentialto everyonewho has ever had,as I have had on many occasions, to draftActs of Parliament,which, althoughthey may be easy to understand,people continuallytry to misunderstand, ndin which, therefore, it is not enough to attaina degree of precision which aperson reading in good faith can understand,but it is necessaryto attain ifpossible to a degree of precision which a person readingin bad faithcannotmisunderstand.It is all the better if he cannot pretendto misunderstandt([1891] I Queen's Bench 149, 167 per Stephen J.).

Primarily,although not exclusively, precisionis achievedby technicalitywhichis itself sustained by the existence of professional, trainedparticipants see theprecedingsection). A technicallanguage develops notonly to facilitatecommu-nication between participantsbut also to further he interestsof some perceivedinstitutionalgoal - here, precision.Turner(1973:172) points to two contrarytendencies in the vocabulariesoftechnicallanguages:a specialisationof vocabularyso thatdistinctionsneglectedin nontechnical vocabulary can be made;a tendencytowardsgeneraltermstorepresentmore inclusive concepts than thoseof ordinary anguage.In eithercasea special term is used. In the first case, the semantic field is fragmentedanddifferent termsgiven to the partsthatmake up the whole; in the second case, asemanticfield is identifiedand named. Boththesetendenciesoperatestronglyinlegal and legislative language. Thus distinctions are made between murder,manslaughter, infanticide as kinds of homicide (often differently in differentjurisdictions);between larceny, embezzlementandfraudulent misappropriationas types of theft; between burglary and housebreakingas types of thefts of36



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money and/or chattels froma house. On the otherhand, the use of the generaltern is equally apparent:raud, negligence, homicide.Precisionneed not deriveexclusively fromtechnicality:Theprecisewordmaybe a word from ordinarylanguage or from nonlegal technical language. Thearrangement f the Parts of the rule and the Act are also important o achieveprecision,in the sense of a correspondencebetween what is intendedandwhatissaid. Within the body of the Act, the divisions andclassificationsmadebetweenPartsof an Act or between sections and subsections reflectthe legislature's viewof what is important.The formatattemptsto mirror his view, and devices suchas numbering, ettering,indexing,andparagraphing reattempts o placea clear,exact grid over a selected section of subjectmatter.It is important o make the point here that certainty in a legal rule doesn'tnecessarily meanintelligibility.It may ultimatelybenefit the ultimateconsumer,the person subject to the rule, but it doesn't necessarily help him or her tounderstandt. Judges, lawyers, and academicwritersclearly recognise thatthepursuitof certaintyby meansof explicit, detailed,andoften technicallegislationproduceslaws that are complex and unintelligibleto their ultimateconsumer.Simplicityandclarity versus immediatecertaintyare viewed as conflicting ob-jectives. In the UnitedKingdom, the 1975 RentonReporton the Preparation fLegislationcame down firmly on the side of certainty:"The draftsmanshouldnot be forced to sacrificecertaintyfor simplicity" (1975:150).Inthis respect, Englishand Australian egislationcontrastswith legislationinEuropeanurisdictions ike France andGermanywhere the traditionalapproachhas been to draft laws in broad general principles- with a consequent gain inintelligibility and simplicity- and to leave it to the courts to settle the details ofits applicationin particularcases. Courts in European urisdictionshave morefreedomthan English and Australiancourts to go behind the words of the textand look at other textual evidence in order to establish the intention of thelegislature(see The Nature of Legislation above). The difference in languagestyle is one aspect, one symptom, of a much wider institutional and socialdifference. The role of the judiciary and its relationshipwith the legislature arequitedifferentin each system.It is apparent, however, that "immediate certainty" is not a very strongjustification for a detailed exhaustive or technical legislative rule, since it sooften fails to achieve its goal. Every case of statutory nterpretation efore thecourts- anestimated40 percent n Australian ourts(Pearce 1974: ) and as highas nine cases out of ten before the House of Lords(Bennion I983:20) - is aninstanceof failed legal certainty, that is, of uncertainty.Frequently, the verymeasuresthat were intended to achieve certainty are the source of uncertainty.Given changingcircumstances n a changing world, it is difficult for the legisla-tureto foreseeand coverevery circumstance n a rule. The omission of an itemorcircumstance rom a rule which purports o be exhaustive raises the problemof

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eitheran intentionalomission or an unintentional ap. Ultimately,the uncertain-ty can only be resolved by a court or by further egislation.Complete certainty, then, is probablyan unachievablegoal in legislation.'0Occasionally, also, it is undesirableor must be balancedagainst another,lessfrequentlyspoken of goal, that is, flexibility. If certaintyis perceivedto be avirtue,so too is flexibility, although ts role is rarelystressed.Thenecessityforacertainamountof flexibility is implied in the first placeby the generalityof thelegal rule. Insofaras a legal rule is a generalrule, it employs generalclassifyingwords, for example, woman, vehicle, child, thing, place. Now, a general termcan be certainonly when the principlesof classificationare knownand specified.To takea familiarexample:what is a vehicle?Does the classification includeascooter or a hovercraft?Unless the rule identifies and delimits by means ofspecificationthe membersof theclass relevantfor the rule, the totalmembershipis not fixed and can be determinedonly by later interpretationn the light of theintentionof the statuteand the circumstancesof the instantcase. So such a rulecontainsan elementof vagueness. An influentialview in law, proposedby Hart(196I:I19), has been that such general words have a core of certaintyand apenumbraof doubt which give legal languagea characteristicopen texture. Asimilarconcept, stereotypeor prototypemeaning, is found in linguistics:Lyons(198X)and Hurfordand Heasley (1983).

Apartfrom generalwords, legal rules frequentlycontainjudgmentwords, orwords of subjectiveinterpretation,ike wilfully,reasonable,maliciously.Scoresof decisions and definitions may attempt to identify behaviour to which suchterms can apply, butultimatelyeach piece of behaviourhas to be judgedsubjec-tively againstthese definitionsand a decision made aboutapplicability.Vague-ness is potentially both valuable and dangerousin a rule of law. Too muchvaguenessresults in uncertainty,generallyconsideredto be an evil. On the otherhand, a certainamount of vagueness is often desirablein orderto achieve thecomprehensivenesssought by generality and to provide leeways (Stone 1968:319) forunforeseencircumstancesorentitieswhichmay laterbe includedwithinthe ambitof rule. The legislaturemay not itself be certainas to the membershipof the class or the exact value of the standard o which the rule refersand maypreferto leave some open-endednessin the rule so that it can be adaptedtochangingsocial needs (Payne 1956:96).Whenthe legislature through ts instructions o thedraftsman) mploys suchastrategyof generalitywithoutaccompanyingexplicitnessor a strategyof inten-tionalvagueness, it is choosing flexibility rather hancertaintyandstabilityandtrusting he discretionof the courts to construeand applytherule "correctly." Ifthattrust is not well-foundedandcourts,exercisingtheir udicial independence,developthe law in ways uncongenial o the legislature,thatis, thegovernmentofthe day, there are threechoices: alter the law, an ad hoc and post hoc solution;provideaccompanyingexplanationswith the Bill or Act as to legislative inten-

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tions(a course being followed at present n the Federal urisdictionof Australia);or appointpolitically sympathetic udges.The flexibility andopen textureof generalwordsmay be lessened if the wordhas achieved that status of a technical or semitechnicalword, following a historyof past interpretationhat has, to a largeextent, fixed its meaning. This is thecase with key terms in old and relatively settled areas of law. However, themeaningof such terms can change if the class of cases to which the term isappliedis broadenedor narrowed.The componentsof the crime of murderandthusthe meaning of murderhave changedconsiderablyover the centuries and itis quite likely thatthey will continue to do so. (Maley 1985). Some lawyersarepresently arguingfor a redefinition of theft to include theft of information, forexample, computercrime.Finally, a legislative rule must effect a certain amount of condensation, inorderto fit all the elements of the rule within the confines of one sentence. Theconvention of the single sentence section or subsection has a long history. Veryearly statutes were draftedin the formof a single sentence because each statutewas considered to be a single enactment.Today, each section or subsection isregardedas a separateenactmentandno function is servedby enactingthe rule inone sentence rather han in a series of sentences;draftsmenare free to draft rulesin short sentences if they think it desirable. In the United States, in thosejurisdictionswhere Plain Languagelaws operate,directions and guidelines fre-quently urge the use of short sentences. In Britain and Australia, despite agrowing recognitionof the desirabilityof simplified legislative language,drafts-men retain a strong preferencefor the single sentence section or subsection.Theirconservatism s basedon the belief that the semantic connections betweenelements of a single sentence are likely to be clearer than those between two orthreeseparatesentences. The Renton Reporton the Preparation f Legislationquotes with approval this opinion:

Shortersentences are easier in themselves, andit wouldprobablyhelp overallto have them shorter, but of course you are faced with having to find therelationshipbetween that sentence and another sentence two sentences awaywhich, if you have it all in one sentence, is really done for you by thedraftsman.(Renton 1975:64).Such reliance on the draftsman'ssyntactic skill may or may not be well-founded, but its effects areapparentn the form of the legislative rule. Given theotherinstitutionalrequirements f exhaustivenessandprecision, the conventionof the single sentence section or subsectionfrequentlyproducesvery long sen-tences withcomplex subordination nd coordination.Moderndraftsmenattemptto breakupthe visual indigestibilityof thetext and to impose a logical orderon it(see above) by a techniqueof paragraphing,wherebyclauses, particularlyparal-lel clauses settingout parallel provisions, are inset andnumbered.The principal

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meansof controlling he length,however,and uxtaposingelementsinrelation oeach other, is by condensationof clauses andphrasesto participialphrasesandnominalisations.Thus:48 I. Every convictionupona chargedisposedof summarilyunder ectionfourhundredand seventy-nineshall have the same effect as a convictionuponanindictment for the offence would have had, and no person, convicted asaforesaid, or who obtainsa certificateof dismissalundersection fourhundredandeighty, shall be afterwards iable to prosecutionfor the samecause (NewSouthWales CrimesAct, igo9).Nominalisationsdo not always achieve condensation. It has been notedthat,frequently,sentencesusing the nominalstyle arewordierthanthecorrespondingverbalstyle (Wells 1966; Halliday 1977). Forexample, a phraselike "shall beafterwardsiableto prosecution or the same crime" has the same legaleffect asthe shorter"may be afterwardsprosecuted." So it would seem that the veryfrequentuse of nominalisations,particularly n proceduralsections, has otherintendedconsequences.Nominalisationsobjectifytheprocess and makeit possi-ble to be treatedas somethingwhich is apart rompersonsandtime, and whichisa partof or a step in legal procedure.As nounlikeelementsin the sentence,theyare more movable than verbs and can, as in Section 481, be placed in subject

positionandgiven thematic prominence.Section481 is "about" an objectifiedprocess, a conviction.A TEXTUAL ANALYSISAssume, then, that the communicativestrategies dentifiedso farmake up legis-lative communicativecompetence. As ways of organisinglinguistic means toinstitutional nds these strategiesor ways of meaningare, in everydaypractice,at the disposal of individuals,the draftsmen.It is theirknowledge of the strat-egies andtheirabilityto use themthatis the basisof anappropriatelyxpressedand organisedruleof law.First,given therequirementhattheruleis always speaking,draftsmen hooselinguistic forms with the meaningPERPETUAL.Similarly, since typicallytherule either commands or empowers, either MANDATORY or DISCRETION-ARY meaningswill be produced.Since the basic social role of the institutionoflaw is to regulate conduct of classes of individuals, the legal rule typicallyexpressesGENERALmeanings.The institutionalroles of the participants nvolve a second set of commu-nicativestrategies. The relationbetween sovereign power and subject, that is,between Parliamentand people, is one of authorityand great social distance.Rules use linguistic formsthatrealise the meaningsASYMMETRICAL,FOR-MAL, and IMPERSONAL.Third,draftsmenwrite notonly astheammanuenses rscribesof the legislature

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but as practitionersof a highly specialised competence with a long and self-conscioushistorywhich requiresan equally specialisedaudience. In this respect,both draftsmenandinterpreters avecertainexpectationsof what languagecandoboth to create legal powers and promote legal effectiveness. In producingthelegislativetext, draftsmenare the vehicles of institutionalbeliefs andvalues. In thebelief that ajust law is a certainlaw, they will employ communicativestrategiesfor producingrules that have PREC1SEand EXPLICITmeanings. This willinvolvetechnicalityon theone handand specificationand repetitionon theother.Draftsmenmay also believe that certainty is best achieved by CONDENSEDmeanings, thatis, all or most of the ingredientsof the rule containedby meansofcomplex subordination,nominalisation,participialphraseswithin a single sen-tence. Not only convention but also experience urges the advantagefor futureinterpretationf rules presented as a single semanticunit.However, a just law may need to accommodateto changingtimes andunfore-seen circumstances, so a certain amount of flexibility is desirable for somelegislative rules. Hence rules with VAGUE meanings, using judgment words.Many legislative rules realise all or most of these meanings.A typicalone formy purposesis section 22A of the New South Wales CrimesAct, I90I, whichdefines the crime of infanticide. The English law of homicide has an almostidenticalsection, as does the State of Victoriain Australia.As the section is setout below, the numberedsuperscriptseach representan example of legislativecommunicativecompetence. In Figure I the same information s given diagram-matically. It representsa schematisationof legislative communicativecompe-tence wherethe relationshipbetween the situationaland institutionalconditions,which eitherdetermineor influence the communicativestrategiesand their lin-guistic realisations, can be traced.

THE TEXT22A(I) Where a' woman2"17 y any3 wilful4 act2 or omission2 causes5 thedeathof her child, being5a' child8 underthe age of twelve months,6'7but atthe time of the act or omission8 the balance of her mind was disturbedbyreason of her not having fully recovered6from the effect of lactation9conse-quentupon9the birthof the child,6'8then, notwithstanding9hat the circum-stances were such thatbutfor this section the offence would have amounted omurder,10she'7 shall'' be guilty of infanticide,10and may5"12 for such'6offence be dealtwith andpunished'13 14as if she hadbeen guilty of the offenceof manslaughter'0of such16 child.15

I. a nonspecific determiner GENERAL2. womnan1, act, omis.sioni superordinatenouns GENERAL3. anly nonspecific pronoun GENERAL4. wi/ful lexical item with variable VAGUEapplication5. beinig, calnses, shall be, presenttense & deontic PERPETUAL

mnay l)e modals41



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6. being ... montihs, not ... . reduced clauses CONDENSEDrecovered7. twelve mnonths lexical item with specific SPECIFICreference8. the aet or omission, child repetitionof lexical item, PRECISEdefinite specific reference(the)9. notwithstanding, actation, lexicon FORMALconsequent uponto. infanticide. murder, lexical item of specialised PRECISEmanslaughter use (technical)ii. shall illocutionaryacts using MANDATORYdeontic modals12. ma! illocutionaryacts using DISCRETIONARYdeontic modals13. dealt with and punished passive verb forms with CONDENSEDdeleted agent14. ma! be dealt withand illocutionaryact directing ASYMMETRICALpunished action15. ithere a . . . child complex sentence PRECISE.EXPLICIT16. such adjectival anaphoric PRECISEreference17. a woman. she third person IMPERSONAL

This list shows how the selections made fromthe linguistic system arerepre-sentativeof kinds of choices and kinds of meanings.Thus Section 22A is a GENERAL rule; there is, first, a woman, whichestablishesby the use of a nonspecific determineranda superordinate ountheclass of individualsto whom the ruleapplies. The class is limited whenthe rulefurtherprovides thatshe will be guiltyof infanticide a TECHNICAL erm)if shecauses thedeath of her child, being a child undertheage of twelvemonths. SuchSPECIFICphrases imit the class to whom the ruleapplies. Section 22A appliesto a womanwho kills herinfantchildwhere infantmeans 'under welve months'.If theclass of woman to whom the ruleapplies is limited, the illegal act is not: Itis any wilful act or omission. Wilful is a VAGUE term. The case law on itsmeaningis enormous;what is wilful in any situationmust always be a matterofthe facts of the situationand the mentalstate of the accused. So the combinationof a nonspecificdeterminerany and wilful importsbothgeneralityanda degreeof flexibility to one component of the rule. Section 22A is FORMAL, ASYM-METRICAL, IMPERSONAL, using third person forms and words from theformal exicon (notwithstanding,actation, consequentupon). As a rule, Section22A is primarilya command, that is, is a MANDATORY rule, since it providesthata particular lass of womanshall be guilty, but also containsa permissiveorDISCRETIONARYlement in regard o the type of punishment hat a courtmayuse. Not only technical terms butphrasalandlexical repetitionas well as anaph-oricsuch attempt o makethe ruleunambiguousandthus PRECISE.In contrastto the repetition, the rule is CONDENSED by means of reducedclauses andadjectival phraseswhich are substitutesfor longerclausal structures.Nonethe-42



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less, it appearsto be an EXPLICITrule, since all the necessaryelements of thecrime are contained within a single sentence.Figure I schematises legislative communicative competence and shows thatthe rules are legal institutionalrules, rooted in the nature and purpose of theactivity of rulemakingor legislation.

THE OPPOSITIONS OF LEGISLATIVE DISCOURSEFigure I shows that Section 22A contains apparentlycontradictorymeanings.Withinthe section there are the oppositions: PRECISE VAGUE; MANDATO-RY / DISCRETIONARY;EXPLICIT CONDENSED. These oppositionsarepotential sources of difficulty for interpretation.For example, the amount ofprecision contained in the rule is significantly lessened if, at certain points, it isopposed to or offset by vagueness. The phrase wilful act or omission has aninherentvagueness that no amount of precision in vocabularywill overcome:How can an objective standardof wilfulness ever be determined?The section ispartly discretionaryand partly mandatory. There seems to be a possibility ofarguingthat in this section may in fact means shall or must, for if the woman isfoundguilty of infanticide, surelythe court cannot exercise its discretionand notpunishheras if she were guilty of manslaughter?The lengthandexplicitnessofthesingle sentence section appear o imply thatevery componentof the crime hasbeen specified. But does a nonlactating but mentallyunbalancedwoman whokills her ten-month-old hild receive the benefit of the provisionor has condensa-tion of the rule prevented that particularmeaning being expressed?With suchinherentsemantic tensions, Section 22A seems less than certain.In Australia, Section 22A has been applied;cases of women chargedwithinfanticidehave come before the courts and been settled. No case has turnedonan issue of interpretation; hat is to say, no plaintiff or appellanthas so farcontestedany aspect of its meaning. However, some interpretationmust occurbefore it is applied:All parties must be in agreementas to its meaning. In R. v.Hutty(['9531 VictorianLaw Reports),thepresiding udge felt it incumbentuponhimto interpretSection 22A, translating,as it were, from the style or registeroflegislation to a more everyday register. He instructed he jury:

You will observe, gentlemen, thatthe firstrequirement,before a womanmayclaim the benefit of this sub-section, is that the child that is killed must beunder the age of twelve months. Here you have no difficulty about thatbecause undoubtedly his child was under the age of twelve months; t met itsdeathvery soon after birth. You will next observethat the sectionspeaksof thedeath of the child being caused by a wilful act or omission. "Wilful" in thatcontext means "intentional", and before you could convict the prisonerofinfanticideyou wouldhave to be satisfied that she intentionallydid some actorintentionallymade some omission which broughtabout the death of the child.43



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l l lLE 5E EC~~~~~~ >, V) O "W-

fiQo f

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If you were satisfied thatthe death of the child had been broughtabout by anintentionalact or omission on the partof the prisoner,then it would be for youto consider whether at the time she did that act or made that omission, thebalance of her mind was disturbedby reason of her nothaving fully recoveredfromthe effect of giving birth to the child. I supposewhere you have circum-stancesestablishedbeforeyou such as you havehere, and withthe deathof thechildoccurringwithin a verybrieftime of its beingborn, you wouldhave verylittle doubt that the conduct of the mother- if you found it amountedto awilful act or omission causing the death of the child - was the productof theordealthatshe hadundergoneandyou wouldhave very littledoubt,I imagine,that at thatstage the balanceof her mind was disturbedby reasonof her nothaving fully recoveredfrom the birth of the child. If you were satisfied ofthose mattersit would be open to you to returna verdict of infanticide(perBarryJ.).

So despite institutionalseparation,the two wings of legislative communicativecompetencemeet in the interpretation f the text. The courts interpretwhat thelegislaturehasenacted;the legislature,in theirturn,cannot butbe influencedbytheirexperienceof what courts will do.There are three possible explanationswhy rules of law like Section 22A,despitea potentialfor ambiguity, remainunchallenged.In most "unpathologi-cal" cases (as distinct from what lawyerscall "hardcases"), the meaningwillbe clear and undisputed- perhapsbecause the general intentof the rule or theAct is well-known or plainly apparent,or perhaps because it applies in a rela-tively straightforward nd uncontroversialareaof the law. This seems to be thecase with the law of infanticide.Second, a rule can be both mandatoryanddiscretionary f the context makesclear that a distinction is intended. Troubles with shall/may are problemsofambiguousillocutionary ntent;if the intentis clear, the meaningis clear.Third,in a numberof instances, althoughnotnecessarilyin the case of Section22A, vagueness or generalityor even ambiguity may be deliberately built intotherule, becausethe legislatureor the particular riginatorsof the Bill within thelegislaturesee the need for a certainamountof fuzziness. Their motives may bepolitical or may more simply consist of a realisationthat in a particulararea ofthe law a certainamountof leeway or flexibility would be desirableto cope withunexpectedor "hard" cases.There is, however, always the possibility that because of generality, orvaguenessorsyntacticambiguitycaused by syntacticcondensationor some otherlinguisticcause, therule will be unclearandthusuncertain, hat is to say, there isanapparentmismatchbetweenthespeaker'smeaning(i.e., the legislature's)andthesentencemeaning(the text). Thefact thatthe meaningof Section22A hasnotyet beencontesteddoes notguarantee hat t will not be contested in thefuture.Insuch cases, it is the role of the courts to step in and interpretauthoritativelyor

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construe the rule. Usually the constructionwill provide a precedentfor latercases on thesame rule. The rulewill continue to bear the samemeaning unless ahighercourt overrulesor statutoryamendmentoccurs)that thecourthasgiven it.CONCLUSIONThe picturethat emerges, then, is of a large body of institutionalknowledgesharedby the participantswhich sometimes determinesand sometimes merelyinfluences their linguistic behaviour,knowledge which underlies the ability toproduceandinterpretegislativediscourse. It is knowledge of all kinds of things:of roles to be assumed, of acts to be performed, of the rightcircumstances operformthem in, of desirablecommunicativestrategies to be pursued in theinterestsof larger legal values.Legislativediscourse cannotbe said to be purelyor wilfully esoteric or archaicor unintelligible, as its critics often say. It constitutes a rationaland functionalstyle - moreaccurately, t is rationalbecause it is functional.Giventhehistoricaldecision to performlegislative acts by means of words, the draftsmanand thejudge have developedcharacteristic trategiesof producingand interpretinghetext so createdthat will promotethe interests of both stabilityand flexibility.This is not to say thatthe forms and style of legislativediscourseare therebyjustified andthat no other style could achieve these institutional ims. Theremaybe alternativeways of fulfilling the same functions- why should the regulationof social conduct be carriedout by meansof perpetualcommands?Whypursuethe chimera of precision, by means of endless repetition,detail, and technicalterrns f it is in the natureof a generalruleto have an open texture?Wouldit notbe better, as many authoritieshave suggested, to opt for broadstatements ofprinciple (as favoured in European law) and trust the courts to apply themwisely? Given the resources of language, might not another,simpler, style bedevised to meet the needs that the institution ays upon it?Of course, legislativestyle can change:it has, in fact, in this centurychangedconsiderably n the direction of greatersimplicitybothof syntaxand of vocabu-lary. But the amount of change possible is probablylimited, or rather,con-tingent.At present,generality,vagueness, syntacticcondensationare,on theonehand,modes of organisationwithin the style whichprovidefor flexibility;on theotherhand, explicitness, specificity, technicalitymove in the direction of cer-taintyandstability.Generality,economy, andsimplicitymaybe desirableaims;if they are pursued too far, certainty and precision will decrease. As the rulebecomesless detailed, less specialised, it will become less exactand less certain.This in itself may not be a bad thing, as some legal authorities Renton 1975;Dale 1977) have suggested, provided the legislatureis prepared o entrustthetaskof interpreting ndapplyingthese broadgeneralprinciples o thecourts andprovidedthecourts are prepared o undertake hetask.This is a matterof lawandpolitics, not of language - but it is a measureof the importanceof the role of

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language in legislationthat a decision about language becomes a decision aboutthe roles of fundamental egal and political institutions.NOTES

i. I am grateful to my colleagues ChitraFernandoand RuthWaterhouse or a numberof helpfulcomments and criticisms on an early draft of this article, and to Professor D. Hymes and ananonymous reviewer on a later version.2. Austin himself drew many parallels between the special usages of law and the speech acts ofordinary anguage(1962:7,22,31,33). It has been noted that Austin at one stage worked verycloselyin Oxford with the legal philosopherH. L. A. Hart(Pitcher 1973:2on).The similaritiesof approachbetween the two, in their differentareas, 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 ofRepresentativesof the United States of America in Congress assembled,"4. Historically, this is interesting. Formerly, the enacting formulaprecededeach section of theAct, using the words "And be it furtherenacted," in additionto the generalenacting words at thecommencement. This practice was omitted when the InterpretationAct of 1889 (United Kingdom)provided: "8. Everysection of an Act shall have effect as a substantiveenactmentwithoutintroduc-tory words." The assumptionappears to be that either the enacting formula at the head of the Actcontrolsthe entire set of sections or rules of law thatmake up the Act;or that the enacting formula sto be understoodbefore each section. If the latter s the correctassumption,thenclearlythe lawyer isthinking of something in the natureof a performativeanalvsis (Ross 1970).S. There now exists a small class of statutes, called sunset legislation, which have a specified,limitedduration(Enright 1983:95).6. In some jurisdictions, it is now possible to call upon the evidence of Parliamentary ebateorotherextrinsic materialto determine the intentionof the legislatureand facilitate interpretation.7. Per Lord Simonds (Magor and St Mellons R.D.C. v. Newport Corporation [1952] AppealsCourt [United Kingdom] at 189-90).8. Formav construedas mandatory, ee BaronInchvrav. Jennings11 6512 (All EnglandReports714); for shall construedas discretionary,see Chanter v. Blackwood I (CommonwealthLawReports[Australia]39).9. In the UnitedStates, the profession of drafting s not so centralisedand laws maybe draftedbymany different people or groups of people acting either privatelyor professionally.I0. The fictionof legislativeor legal certaintyhas been stronglyattacked.In particular, ee Frank(1930) and Llewellyn (1951). proponentsof AmericanLegal Realism.

REFERENCESAustin, J. L. (1962). How to do things with words. London: Oxford University Press.(1970). A plea for excuses. In Philosophical papers. London:Oxford University Press.175-204.Barfield,0. (1962). Poetic diction andlegal fiction. In M. Black(ed.), Theimportanceof language.Ithaca-CornellUniversity Press. 51-71.Bennion, F. (1983). Statute law. 2nd ed. London:Oyez Longman.Bentham,J. (1843). The worksof JeremYBentham.John Bowring, ed. Edinburgh:William Tait.Bhatia,V. K. (1982). Easificationof legislative texts. Englishfor Specific Purposes 68. Comvallis:English LanguageInstitute,Oregon State University, 8-9;Coode, G. (1852). Legislative expression, or the language of the written law. Reprintedin S.Robinson,Drafting. Sydney: Butterworth,1973. 335-398.Crystal, D., & Davy, D. (i969). InvestigatingEnglish style. London:Longman.Dale, W. (1977). Legislativedrafting:A new approach. London:Butterworths.Danet, B. (1980). Language in the legal process. Law and Societv Review 14 (3):445-563.David, R., & Bfierley, J. (1978). Major legal systems in the world todav. London:Stevens andSons.Derham, D., Maher, F., & Waller, P. (1971). Cases and materials on the legal process. Sydney:Law Book Company.

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