Drafting Manuals and Quality in Legislation: Positive Contribution Towards Certainty in the Law or Impediment to the Necessity for Dynamism of Rules?
Author: Xanthaki, Helen
Source: Legisprudence, Volume 4, Number 2, October 2010 , pp. 111-128(18)
Publisher: Hart Publishing
Abstract:The functional usefulness and need of drafting manuals as a method of harmonization of drafting conventions at the national level has often been linked to the civil versus common law legal traditions. This article places the balance between the virtue of homogeneity of style of national laws (and thus certainty in the law) and dynamism of drafting conventions as legal norms (and hence modernization and approachability) beyond the civil versus common law divide. If drafting is a discipline of law, then it is a form of phronesis. And the series of subjective choices of appropriateness made by the drafters in the course of their work can only be assisted by compilations of drafting conventions that set the foundations of quality in legislation in a theoretical/principled, rather than prescribed, manner. Thus the future of manuals lies in their nature as compilations of principles of legisprudence and not in their regrettable past as a series of commands on techniques and technicalities. This may serve efficacy which is the ultimate goal of legislation as a tool for regulation.
Document Type: Research Article
Publication date: 2010-10-01
- Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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