Union, principally financed by the EU
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Legislative Drafting – civil and
common law approaches
compared
Edward Donelan, M.A., Barrister–at–Law (Kings Inns, Dublin, Middle Temple, London,
Senior Advisor Regulatory Reform, Regulatory Governance (SIGMA OECD/EU) former
Director of Statute Law Revision and parliamentary counsel to the government of Ireland
edward.donelan@oecd.org
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Two broad approaches

Civil Law




Same officials ‘usually’ formulate policy as
draft legislation
Different approach to quality review
Different concepts different traditions – myth
or reality?
Common Law



Specialist lawyers
Usually, strict line between policy formulation
and legislative drafting
Practices date from 1869
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
Union, principally financed by the EU
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Features in common



Policy formulation and legislative drafting
‘notionally’ separated in both systems
Use of policy development tools
 Impact assessment
 Consultation
Potential to develop common approaches
and training limited by language differences
but less constrained in the internet age and
the age of convergence of standards
Legislative product and process indicators
common objectives visible
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Indicators of quality –
(product)






Clarity
Coherence
Consistency
Efficiency (provides maximum benefit
at least necessary cost)
Effective (enforceable or readily
complied with)
Political, social and economic
objectives achieved
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What is effective
legislation?
Effective legislation is legislation that:
 Achieves its legislative mandate
 Operates with the requisite accountability and
control mechanisms in place
 Operates with the appropriate level of due
process
 Is enforceable and enforced
 Operates with the right level of expertise (e.g.,
Laws on Radiation Protection are enforced by
experts in radiation issues)
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Indicators of quality (process)


Quality assurance process by
parliament and prior to submission
to parliament as well as subsequent
review
Transparency of process (manuals,
style guides as well as easily
available texts of drafts and
explanatory materials)
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Factors that differ



Policy and drafting ‘totally’ separated in theory in
common law system of preparing legislation
Common law – no formal review but interministerial consultation
In common law system specialist lawyers
(parliamentary counsel)
Civil law approach characterised by reviews of
drafts
 Legal Offices
 Legislation Council (Czech/Slovak Republic)
 Legal Ombudsman (Estonia)
 Judges (Sweden)
 Conseil d’Etat (Belgium, France)
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United States

Regulatory drafting many good features
 Review of regulations by impact
assessment
 Notice and comment very effective
Drafting for Congress (Federal) More
transparent?
 Proposal put in hopper
 Only Bills that are likely to become
enacted are then drafted in the Senate
and House of Representatives
Legislative Counsel Offices and their
texts agreed
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Canada

Drafting in both languages

Parliament (Federal) has its own
legislative counsel)

Designated education at University of
Ottawa (Discontinued)
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Related issues
An orderly statute book should make
law easy to find once found easy to
follow so laws should be:




Accessible
Coherent and comprehensible
Up to date
Made available electronically in versions
citeable in court
 Supported by adequate explanatory
materials
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Conclusions



Convergence between common law and civil law
More joins systems that separates them
ICT is changing the methodology of legislative
drafting creating the potential for greater
coherence, transparency and review
Need for improved training
 In theory of legislation
 In practice of good writing
 In the fundamentals of each legal system
(constitutional law, administrative law, civil,
criminal law and at least one substantive area)
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Further reading and
contacts
Sigma Papers
Law Drafting And Regulatory Management In Central And Eastern Europe, Sigma
Papers: No. 18
Checklist On Law Drafting And Regulatory Management
In Central And Eastern Europe Sigma Papers: No.15 see www.sigmaweb.org
Books
Legislative Drafting by Thornton G,
Legislative Drafting by Frederick Reed Dickerson
Dickerson, Reed, Legislative Drafting (Greenwood Press, 1954).
Dorsey, Tobias A., Legislative Drafter's Desk book (The Capital.Net, 2006)
Driedger, Elmer, The Composition of Legislation, Legislative Forms and Procedures
(Department of Justice of Canada, 1976).
Martineau, Robert, Drafting Legislation and Rules in Plain English (West Publishing
Company, 1991).
For a critique of the Plain Language School see Stark, Jack, "Should the Main Goal of
Statutory Drafting Be Accuracy or Clarity?" Statute Law Review, 15 (1994), 1-7.
Stark, Jack, The Art of the Statute (Fred B. Rothman and Company, 1996, now distributed by
Wm. S. Hein and Company).
Leading Journal: Statute Law Review, Oxford University Press
© OECD