This page is a work in progress. It is a ‘growing’ document and will expand as I collect ideas, links, and notes.
When you are writing laws you are testing words to find their utmost power. Like spells, they have to make things happen in the real world, and like spells, they only work if people believe in them.
Hilary Mantel, Wolf Hall
Legislative drafting, like contract drafting or software engineering, is fundamentally a problem of constructing the correct ontologies.
When you find the correct abstractions, things fall into place. When you have the wrong abstractions, you will find yourself constantly creating more complex procedures. A feature of bad abstractions is that they are harder to reason with.
One way we check for the existence of a modern, working legal system is by asking whether its abstractions have been successful.
I mean “abstraction” in a precise sense, i.e., ‘the quality of dealing with ideas rather than events.’ It is by abstracting that we create general rules from specific disputes. It is by reasoning about those abstractions that we try to maintain consistency when comparable situations arise. Without those abstractions, you are just following your intuitions.
Surely, the abstractions and our reasoning about them is driven fundamentally by intuition. But the fact that they are intuitions about the abstractions, as opposed to an intutition about “who should win”, introduces some rigour to the legal system.
When your abstractions are successful, that means that your judges are reasoning about the abstractions, not principally about the case before them. When they fail, courts (where professional judges apply laws) devolve into durbars (where the sovereign dispenses justice).
As a drafter, your task is to find the correct abstractions, construct the correct ontology, and then execute on the mundane and rigorous work of converting that ontology into a text. If the drafting process fails, you will rightfully earn your place in the drafting hall of shame.
The Draft Indian Financial Code is exceptional but was sometimes too much of a departure from traditional drafting. More detail and context can be found in the FSLRC Report.
The UK’s Mental Capacity Act 2005 is an example of good, clear drafting. You don’t have to take just my word for it. In PC and NC v City of York Council, McFarlane LJ said:
37. The central provisions of the MCA 2005 have been widely welcomed as an example of plain and clear statutory language. I would therefore deprecate any attempt to add any embellishment or gloss to the statutory wording unless to do so is plainly necessary. […]
Vidhi has published a plain language drafting manual (2017) and an updated SARAL manual (2023). They are both excellent India-centric resources for plain language drafting.
The Leap Journal has great posts (here, here) on the drafting process that rhyme with how I feel about the experience.
See Common Legislative Solutions (UK Cabinet Office, May 2022)