The Language of Legislation Author(s): Yon Maley Reviewed work(s): 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 . Accessed: 16/01/2013 14:05
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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 characteristics of 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 legislation, 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 linguistic 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 esotericism are odd and require explanation. Legislation is the largest and most important source 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 professionalinterpreters 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).
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It seems, then, thatthe characteristics thatmarklegislative 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 centuries, 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 communicativestrategiesencompassing what a specialised group of individuals in the exercise of their institutional roles know and do to produceappropriate and valid legislationand, when necessary, interpretit. Unlike many other kinds of communicativecompetence, legislative communicativecompetence is not simply ""picked up"; it is a learned communicativeskill or craft which producesa craftbound discourse(Ross 198 1), an insider language which is subject to special conditions of productionand 26

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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 in the sense of an organisationof means in relation to ends (Hymes I982:107), 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 structural elements; 2. The ParticipantRoles: the natureof and interrelationships among 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). of legislative Controllingactions by words; here is the key to the understanding 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 institutional conditions: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 document 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

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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 substance of the statute, what is in fact enacted or made law by the utteranceof the institutionalconditions, is consideredto be a enacting formulain the appropriate set of separateenactments, set out in numberedsections, which frequentlycontain 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 accuraterepresentation of the legislature's intention. But unless amended 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, includingParliament or 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 fourteenth century, when thejudiciaryfirst beganto separatein functionfrom the King's Council, the embryo legislature: Towards the middle of the fourteenthcentury . . . the judges began to interpret statutes strictly. No longer are they to be regardedas merely suggestions 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 ""radical separation"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 interpret it 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 separationbe28

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that is, between the productiveand semantic tween legislation and interpretation, wings of legislative communicative competence. Courts avoid what has been of the legislative function"7 and tend (with, it must called "the nakedusurpation the legislative text strictlyand be admitted,some notableexceptions) to interpret literally. Courts in the United States have been more flexible and more adventurous, 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 interpretation which treats the text as a guide only (Bennion i983:1). An understandingof the role and status accorded to a statute as a "'frozen of the bindingtext" (Twining & Miers 1976: 120) is crucial to an understanding 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 not presenta model of the 1979:28), theircommon featureis that legal rules ""do 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 MANDATORY 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 categories of legal illocutionaryact. Mandatoryillocutionsets up two important 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 perfor29

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of mance of mandatoryillocutionaryacts, and may is used for the performance 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 DisqualificationAct, 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'scommunicative 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 performed 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 currentlyunderstands it 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

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classes of persons, things, actions, and circumstances. The class is not necessarily 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, anthracite, 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 opportunity should be given to the House to considerthe makingof an order undersubsection (2) above, defer the issue of his warrantpending the determination of that House (U.K. House of Commons Disqualification Act, 1975). Section 221 is a rule of greatgenerality:It applies universallywithin the jurisdiction 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 characteristicof 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

only in the communicativeact Traditionallegal theory identifies two participants of legislation: sovereign and subject. Laws emanate from the sovereign or sovereign 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 participant roles can be identified:on the side, AUproductionside, SOURCE and DRAFTSMAN; on the interpretation 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

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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 jurisdiction. 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 governmentdepartment or 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 Parliamentary Counsel, which is the specialised branchof government which in Englandand Australiacarries 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 professionaldraftsmen. 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 draftsman and may includeamendments thathave been made or requiredin Parliamentary debate. Wherethe responsibility 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 particular defined 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 INTERPRETERto 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 interpretation is 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 conse32

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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.Rulegiving 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 to the speech act are distanced, unknownpersonallyto each and the participants 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 legislative 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 interpreter call upon a backgroundof sharedknowledge and assumptionsabout legal and political principles and processes. This is 33

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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 conference 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 to a lawyer but not necessarily to a layperson.The provision, in effect, apparent 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 meanings, that is, meanings which are unique to a specialised or craft-bound situation 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 engineering 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 generally 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. ""It is 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 participants in a particular sphereof 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 rela34

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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 bizarrepoint of view is providejustice. But the reasoningbehind a so apparently 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 immediately, 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

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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 facilitatecommunication 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

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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 of the Parts of the rule and the Act are also importantto achieve arrangement 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 paragraphing are 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 obof jectives. In the United Kingdom, the 1975 Renton Reporton the Preparation 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 European jurisdictionslike 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 statutoryinterpretation before 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 legislatureto 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

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gap. Ultimately, the uncertaineitheran intentionalomission or an unintentional 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 in the light of the is not fixed and can be determinedonly by later interpretation intentionof the statuteand the circumstancesof the instantcase. So such a rule contains an element of vagueness. An influentialview in law, proposedby Hart has been that such general words have a core of certainty and a (196I:I19), 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 like wilfully, reasonable, maliciously. Scores words of subjective interpretation, of decisions and definitions may attempt to identify behaviour to which such termscan apply, but ultimatelyeach piece of behaviourhas to be judged subjectively against these definitions and a decision made about applicability. Vagueness 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). employs such a to the draftsman) Whenthe legislature(throughits instructions strategyof generality without accompanyingexplicitness or a strategyof intentional 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 inten38

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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 interpretation that 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 frequently urge the use of short sentences. In Britain and Australia, despite a growing recognitionof the desirabilityof simplified legislative language, draftsmen 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 Preparation of 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 wellfounded, but its effects are apparentin the form of the legislative rule. Given the other institutionalrequirements of exhaustiveness and precision, the convention of the single sentence section or subsection frequentlyproduces very long sentences with complex subordination and coordination.Moderndraftsmenattempt to breakup the visual indigestibilityof the text and to impose a logical orderon it (see above) by a techniqueof paragraphing, whereby clauses, particularly parallel clauses setting out parallelprovisions, are inset and numbered.The principal 39

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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 possible 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 legislative 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 strategies and their ability to use them that is the basis of an appropriately expressed and organised rule of law. First, given the requirement thatthe rule is always speaking, draftsmenchoose linguistic forms with the meaning PERPETUAL.Similarly, since typically the rule either commands or empowers, either MANDATORY or DISCRETIONARY 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 communicative 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,FORMAL, and IMPERSONAL. Third,draftsmenwritenot only as the ammanuenses or scribesof the legislature 40

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but as practitionersof a highly specialised competence with a long and selfconscious history which requiresan equally specialised audience. In this respect, have certainexpectationsof what languagecan do bothdraftsmenand interpreters 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 sentence. Not only convention but also experience urges the advantage for future of rules presented as a single semantic unit. interpretation However, a just law may need to accommodateto changing times and unforeseen 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 diagrammatically. It represents a schematisation of legislative communicative competence where the relationshipbetween the situationaland institutionalconditions, which either determine or influence the communicative strategies and their linguistic realisations, can be traced. THE TEXT by any3 wilful4 act2 or omission2 causes5 the 22A(I) Where a' woman2"17 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 lactation9consethat the circumquent upon9 the birth of the child,6'8 then, notwithstanding9 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
2. womnan1, act, omis.sioni

3. anly 4. wi/ful 5. beinig, calnses, shall be,

mnay l)e

nonspecific determiner superordinatenouns nonspecific pronoun lexical item with variable application present tense & deontic modals 41

GENERAL GENERAL GENERAL VAGUE PERPETUAL

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YON MALEY 6. being ...

recovered montihs, not ... . reduced clauses CONDENSED

7. twelve mnonths 8. the aet or omission, child 9. notwithstanding,lactation, consequent upon to. infanticide. murder, manslaughter ii. shall
12. ma!

lexical item with specific reference repetitionof lexical item, definite specific reference (the) lexicon lexical item of specialised use (technical) illocutionaryacts using deontic modals illocutionaryacts using deontic modals passive verb forms with deleted agent illocutionaryact directing action complex sentence adjectival anaphoric reference third person

SPECIFIC PRECISE FORMAL PRECISE MANDATORY DISCRETIONARY CONDENSED ASYMMETRICAL PRECISE. EXPLICIT PRECISE IMPERSONAL

13. dealt with and punished

14. ma! be dealt with and
15.

punished ithere a .

. .

child

16. such 17. a woman. she

This list shows how the selections made from the linguistic system are representative 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 superordinate noun the class of individualsto whom the rule applies. The class is limited when the rule further providesthatshe will be guilty of infanticide(a TECHNICAL term)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, ASYMMETRICAL, 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 particular class of woman shall be guilty, but also contains a permissiveor DISCRETIONARY element in regardto the type of punishmentthata courtmay use. Not only technical terms but phrasaland lexical repetitionas well as anaphoric 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.Nonethe42

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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; MANDATORY / 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 The length and explicitness of punish her as if she were guilty of manslaughter? 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 condensation 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 interpretation must 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 interpret Section 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

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l
E

l
5E

l IL
L

D E
V) O" W-

C~~~~~~

>,

fiQo

44

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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 circumstances 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 interpretation of 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 "unpathological" 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 relatively straightforward and 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 particular originatorsof 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 apparent mismatchbetween 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

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construe the rule. Usually the construction will provide a precedent for later cases on the same rule. The rule will continue to bearthe same meaning(unless a highercourtoverrulesor statutoryamendmentoccurs) thatthe courthas given it.
CONCLUSION

The picture that emerges, then, is of a large body of institutionalknowledge shared by the participantswhich sometimes determines and sometimes merely influences their linguistic behaviour, knowledge which underlies the ability to produceand interpret legislative discourse. It is knowledgeof all kindsof things: of roles to be assumed, of acts to be performed, of the right circumstancesto perform them in, of desirable communicative strategies to be pursued in the interestsof larger legal values. Legislativediscourse cannot be said to be purelyor wilfully esoteric or archaic or unintelligible, as its critics often say. It constitutes a rationaland functional style - more accurately,it is rationalbecause it is functional.Given the historical decision to perform legislative acts by means of words, the draftsmanand the judge have developed characteristicstrategiesof producingand interpreting the text so created that will promote the interests of both stability and flexibility. This is not to say that the forms and style of legislative discourse are thereby justified and that no otherstyle could achieve these institutionalaims. Theremay be alternativeways of fulfilling the same functions - why should the regulation of social conduct be carriedout by means of perpetualcommands?Why pursue the chimera of precision, by means of endless repetition, detail, and technical terrnsif it is in the natureof a general rule to have an open texture?Would it not be better, as many authoritieshave suggested, to opt for broad statementsof principle (as favoured in European law) and trust the courts to apply them wisely? Given the resources of language, might not another, simpler, style be devised to meet the needs that the institutionlays upon it? Of course, legislative style can change: it has, in fact, in this centurychanged considerablyin the direction of greatersimplicity both of syntax and of vocabulary. But the amount of change possible is probably limited, or rather, contingent. At present,generality, vagueness, syntacticcondensationare, on the one hand, modes of organisationwithin the style which providefor flexibility;on the other hand, explicitness, specificity, technicality move in the direction of certainty and stability. Generality,economy, and simplicity may be desirableaims; if they are pursued too far, certainty and precision will decrease. As the rule becomes less detailed, less specialised, it will become less exact and less certain. This in itself may not be a bad thing, as some legal authorities(Renton 1975; Dale 1977) have suggested, provided the legislature is preparedto entrust the task of interpreting and applying these broadgeneral principlesto the courts and providedthe courts are preparedto undertake the task. This is a matterof law and politics, not of language - but it is a measureof the importanceof the role of 46

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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 Interpretation Act of 1889 (United Kingdom) provided:"8. Every section of an Act shall have effect as a substantiveenactmentwithout introductory 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 Parliamentary debate 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.

REFERENCES Austin, 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 and legal fiction. In M. Black (ed.), The importanceof language. Ithaca-CornellUniversity Press. 51-71. Bennion, F. (1983). Statute law. 2nd ed. London:Oyez Longman. Bentham, J. (1843). The works of JeremYBentham. John Bowring, ed. Edinburgh:William Tait. Bhatia, V. K. (1982). Easificationof legislative texts. Englishfor Specific Purposes 68. Comvallis: English Language Institute, Oregon State University, 8-9; Coode, G. (1852). Legislative expression, or the language of the written law. Reprinted in S. Robinson, Drafting. Sydney: Butterworth, 1973. 335-398. Crystal, D., & Davy, D. (i969). Investigating English style. London: Longman. Dale, W. (1977). Legislative drafting: 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 worldtodav. London:Stevens and Sons. Derham, D., Maher, F., & Waller, P. (1971). Cases and materials on the legal process. Sydney: Law Book Company.

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