How to Draft Legislation

Legislation One of the challenges facing the process of legal drafting in legislation is diction and language. Plain language may be warranted in some situations, whereas jargon is often acceptable and occasionally necessary. All abbreviations need to be identified and used judiciously. Each piece of legislation should be drafted differently, with regard to the subject matter and audience. The challenge is in knowing the audience, and remembering the constraints of each country's legislative system.

It should not be assumed that a purely judicial or legal audience is the recipient, as legislation entails a large number of stakeholders. Each piece of legislation should be considered differently, and yet there should always be consistency among the corpus of legislation drafted and regard for plain language. Another challenge is that there are so many types of legislation, and so many types of drafting styles and formats.

The cacophony of acceptable styles and systems can be confusing, especially when there are multiple people, entities, or departments collaborating on the drafted legislation. Creating harmony may be possible within some systems, but shifting ideologies and norms could create a situation in which legislation is confusing or contradictory. In nations with state/provincial legislation that competes with federal legislation, there are further challenges with regards to the diversity of drafted documents available.

Ultimately one party might have the final say in the drafting technique used, but in some cases, there will be no clearly defined protocol for drafting. It is sometimes useful to have clearly defined protocols within certain systems or levels of government. Legislation should be clear, concise, and when possible, written in plain language. Formatting issues such as whether to use bulleted points, or simple doubles to express application of the law may arise. However, there are special challenges regarding what constitutes plain language, and how to employ it.

Countries with more than one official language also contend with issues like translation. Translation is rarely about literally converting word-for-word, but with communicating the identical legal, social, economic, and political concepts in the target language. Ideally, the translators should be part of the drafting team to avoid miscommunications of core concepts that could cause serious legal conundrums. Another challenge with legal drafting in legislation is how much detail to include in the document.

Drafters need to know when to define terms, and when doing so would be redundant rather than helpful. Precision and detail are generally preferable to vagueness, though, as vagueness leaves too much open to debate and interpretation and can clog the judicial system or render the legislation useless. The legislation may be prescriptive in nature, or it may be looser and more didactic. When a piece legislation attempts to address too many issues at once, it may be moot. It is preferable to simplify the legislation by focusing.