Responses to the Study Guide Questions for

Session B-1, Slide #9

Question 1

Drafters seem to believe that they have nothing to do with their bills’ policy or substantive content, but only with form. (When you think about this question, ask yourself what you mean by ‘drafter’ in this context.)

a. Do you think Driedeger would agree with that claim?

James: Drafters cannot continue to argue that they have nothing to do with the substance of a bill. Even if in 1869 the then new Parliamentary Counsel was tactful to avert a clash with bureaucrats at the Ministries in the United Kingdom of Great Britain and Northern Ireland present day demands require that drafters must be more involved in the search for the raw materials to use for their products as well as the product itself.  In other words both the form and substance must be of interest to the drafter and the substance or the raw materials for their work are available and only research can assemble them together.

Rob: Driedeger distinguishes between “legislative policy” and “legislative plan”. The legislative policy is the objective. The legislative plan is the detailed outline by which the policy is achieved. Driedeger would probably agree with the claim that a drafter has nothing (or very little) to do with a bill’s policy or substantive content. This notion is in line with “the drafters’ myth”: To deflect charges of power-grabbing, Parliamentary Counsel in nineteenth century England claimed that that the Office of the Parliamentary Counsel dealt only with matters of legislative form, leaving all matters of policy and substance with the originating ministry.

Mavis: I think that yes he would agree with that claim since as quoted he believes that drafters role is to put down in words that which has been thought of by somebody else. Therefore the drafter in his case is only a wordsmith who has nothing to do with the actual policy behind the law being drafted.

b. Do you think it possible for drafters to have nothing to do with a bill’s policy? Why or why not?

Rob: This question deals with the degree to which form and substance are separable. In the process of writing the legislative plan (the bill), the drafter necessarily acts not only as a “policy translator” but also as a policy maker. This course teaches that form and content are inextricably linked. It is at least partially through the process of writing the legislative plan that the policy ideas are developed. Even if the request for legislation is very detailed it will not provide direction on all of the intricacies of the draft bill. The practical task of choosing the appropriate words to express a legislative policy requires the drafter to deal with the substance of that policy. Although it may be convenient for pedagogical purposes to view the “drafter” and the “policy maker” as distinct entities in the legislative process this taxonomy is misleading. Since form and substance are inseparable, the drafter is also a policy maker.

Mavis: If a drafter is considered strictu sensu as the person sitting in the central drafting office doing the drafting then yes it is possible to have nothing to do with a bill’s policy. However for the other persons in the chain who may also be considered as drafters namely the officials in the instructing ministry, legislators etc, then no, it is not possible to say that. 

Question 2

We have asserted that, in drafting a transformatory bill, either the bill or its subsidiary legislation, a drafter must write out the details of the desired behaviors. Do you agree? Why or why not?

James: The drafter must as much as humanly possible write the out the details of the desired behavior expected. It is important for this is the only way that some measure of judgment can be ascertained. It also avoids the use of too much discretion that often leads to arbitrariness. When the details of a bill is written out it is said that a transitive bill has been written. On the other hand when a bill is without much details and the primary role occupants are given the option to write the details of the bill it is said that an intransitive bill has been written. Both of these are acceptable but it is more acceptable if the bill is a complex one that demands some complexities in its implementation

Rob: The principal function of transformatory legislation is to induce the relevant social actors to behave in new ways. This can only be accomplished when the bill or its subsidiary legislation contains the details of the desired behaviors. A general legislative pronouncement gives broad discretion to a court or other decision-making body to interpret and, by extension, implement the legislation. A law with few details of the desired behaviors is less accessible and consequently, less effective.

A law which includes the details of the desired behaviors (who must do what) is much more likely to be accessible and understandable to everyone including non-lawyers.  One of the benefits of this clarity is that the law is more likely to be obeyed because it’s addressees will know exactly what they have to do.

Mavis: I agree for the simple reasons that where details are not sufficiently described, a gap in the law may result, leading to either the law being ineffective or else the law being the subject of litigation before the courts to try and figure out what the legislature had left out.

Question 3

The common law legislative tradition requires that ordinarily the required details appear in the statute itself; regulations only prescribe relatively small details. In the continental tradition, statutes state very broad, even grandiose ‘principles’, leaving huge amounts of ‘detail’ to the implementing decree. (Developing countries generally follow the practice of their late imperial overlords). Which seems to you desirable? Why?

James: When a drafter writes out the details of a transformatory bill or subsidiary legislation the drafter is said to have written a transitive bill. So a bill that has most of its details written into it is a transitive bill. On the other hand a bill that does not contain much details or leaves the details to be written by the implementing agency s called an intransitive bill. Both approaches are useful but where the bill deals with an issue that is so complex it is advisable to let be intransitive so the people that will implement the law at the ground level can write out better details that can achieve the results needed.  For after all they may have a better understanding of the problem and may do a better job on it.   

Rob: Law embodied in statutes must pass legislative scrutiny whereas regulations are made by the executive branch of government (cabinet), and are not debated nor voted on by the legislature as a whole. If the “devil is in the details” the most contentious aspects of a law should, as a matter of democratic process, be contained in the statute to allow for public debate.

Mavis: I am more familiar with the common law way of dealing with details therefore I tend to agree with that manner more, as in view everything is clearly set out between the primary and subsidiary legislation. However, the civil law system also has the merit in that law often has broad and grandiose principles and declaring these in the primary legislation and then leaving the details to the subsidiary legislation does have its own merits.