Chapter I:

General Overview/Introduction
Chapter Outline
- Distinguishing legislative drafting from other
forms of legal writing
- Legislative drafting as a tool for social
change/importance
- Policy translations
- Problem solving approach to drafting
Distinguishing legislative drafting from other
forms of legal writing
• Why is legislative drafting important to us at
all?”
• “Where in the legal system is its place
anyway?”
• There is no one correct way to draft
legislation, but there is a preferred style and
form in each legislative setting that guides
drafters in their work
 Distinguishing legislative drafting …
• One form of legal writing,
• Considered as one of the most important part
of legal writing,
• Why it need independent discussion?
• it also is one of the most highly regulated forms
of writing.
• It is said that legislative drafting is one of the
most rigorous forms of writing next to logic.
 Distinguishing legislative drafting …
• Drafting legislation is an art, not a science.
• A well drafted bill results, not from
slavishly(submissive manner) following
numerous arbitrary rules, but rather from
comprehensive:
- knowledge of the subject,
- Careful attention to detail, and
- Adherence to such common-sense principles
as simplicity, clarity and good organization.
 Distinguishing legislative drafting …
• Legislative drafting can be defined as the drafting of legislation and
of any writing which arises out of legislation
• Legislation, of course, is the enacted law of the country, the
statute law made by the legislature
• But. in modern times, it is not enough for a draftsman to be
familiar with legislation. He has also to draft a number of
instruments, a number of orders, a number of documents, a
number of notifications, which arises from a legislation, which
flow from the legislation, which emanate from the legislation.
• While legislation is the parent, from that parent is born a very
large number of off-spring, which we generally call "subordinate
legislation Legislative drafting, therefore, is not merely drafting
of legislation proper, but also of the subordinate legislation
 Distinguishing legislative drafting …

• Legislative drafting is one form of legal writing.

• Legal writing is a type of technical writing used
by legislators, lawyers, judges, and others in law
to express legal analysis and legal rights and
duties.
• Its distinguishing features include reliance on
formality and citation to authority, specialized
vocabulary or jargon, and over formality.
 Distinguishing legislative drafting …
• The term legal writing in general includes all
forms of writing in the legal field including the
drafting of individual contractual agreements,
wills and the like inclusive of legislative
drafting.
 Distinguishing legislative drafting …

• Legal writing had been, for example, defined

as "the crystallization and expression in
definitive form of a legal right, privilege,
function, duty or status [and] . . . the
development and preparation of legal
instruments such as:
- constitutions, statutes, regulations,
- ordinances, contracts, wills, conveyances,
- indentures/agreements, trusts, and leases.”
 Distinguishing legislative drafting …

• Legal writing, as any other form of writing basically

adheres to most rules of grammar and punctuation.
• The biggest difference from other forms of writing
however lies because it is a more formal form of
writing.
• This formality being expressed in; avoiding first
person pronouns, contractions, abbreviations,
idiomatic phrases, and punctuation marks like
exclamation marks that might suggest informality.
 Distinguishing legislative drafting …
• Within this category, legislative drafting is
considered the most difficult form of legal
writing.
• This difficult could be considered as having two
aspects.
1. From the point of view of the drafter the
problems faced arise in trying to draft a
comprehensive document and how the document
would be understood by the lay person.
 Distinguishing legislative drafting …

2. Being able to present it in simple words, while, at

the same time, being able to include all policy
interests, following the rules of legal writing is
necessary.
• These points raise the issues of ethics and
language.
• They make us question what exactly the role of the
drafter is. Who is responsible for and in what
manner (what type of language) is to be employed
to communicate the idea.
The importance of Legislative Drafting
• Even if there could be a difference on the
following of codified laws or not exists we could
all agree that it is important to have written proof
of what we believe is right and wrong or our
agreements and disagreements on the basis of
which violators are to be held liable and face the
consequences of their acts.
• The importance of written law is highly
associated with the idea: “ignorance of the law is
no excuse”.
The importance of Legislative Drafting
• The use of this idea necessarily leads to the primary
obligation of the state to make the laws available (known)
to its citizens. That is what we call giving prior notice. And
the best way to do that is to publish the laws and this is
where the topic of legislative drafting comes to existence.
• Once we start talking about legislative drafting our focus
would be the drafter.
• To talk about importance of legislative drafting is to talk
about the importance of the role the drafter is to play.
• Usually the drafter is not himself/herself the authoritative
arbiter or maker of the policies to be embodied in the
provisions he/she draws.
The importance of Legislative Drafting
1. Legislative Drafting as a Tool for Social Change
Ann Seidman
 The role of the drafter is to bring about social, political
and economic transformation.
 And she says to bring about development and social
transformation our legislation should promote good
governance.
 According to her poverty and riches aren’t directly
proportional to the availability of resources but rather
their allocation and use.
 Hence if we are going to bring about development or/and social
problem our law should be able to pin point the basic social
problems and see how to resolve those and for this good
governance is considered the most basic aspect.
The importance of Legislative Drafting
• To quote directly from her,
“A country’s institutions shape, not only its resource
allocations, but the quality of that country’s
governance. The institutions of governance define a
government’s capacity to manage social and economic
resources to facilitate development or transition. Poor
governance consists of ineffective, arbitrary
government decision-making processes – that is,
ineffective decision-making by non-transparent, non-
accountable, non-participatory (and frequently
corrupt) processes.”
The importance of Legislative Drafting
• Good governance is defined as “the manner
in which power is exercised in the
management of a country’s economic and
social resources for development.”
The importance of Legislative Drafting
• Four elements characterize those processes:
1. Governance by rule: decision-makers decide, not pursuant to
the decision-maker’s intuition or passing fancy, but according to
agreed-upon norms grounded in reason and experience;
2. Accountability: decision-makers justify their decisions publicly,
subjecting their decisions to review by recognized higher
authority, and ultimately by the electorate;
3. Transparency: officials conduct government business openly
so that the public and particularly the press can learn about and
debate its details; and
4. Participation: persons affected by a potential decision — the
stakeholders – have the maximum feasible opportunity to make
inputs and otherwise take part in governmental decisions.
The importance of Legislative Drafting
• Legislators must devise ways to change the
institutions that fasten poverty and
vulnerability, and poor governance onto
fellow-citizens.
• The kinds of laws that legislators enact can
play a principal role in ensuring good
governance that facilitates transition and
development.
 Distinguishing legislative drafting …
• As a legislator, you may enact laws designed to
facilitate development or transition by different
kinds and degrees of state intervention:
• Direct government management of an agency – for
example, the post office, prisons, the courts;
• Through indirect measures – for example, laws
providing training for cooperative officers, changes in
land tenure rules, or financing research in new
products and markets;
• Through the creation of a framework of rules within
which individual actors supply the moving force — for
example, contract laws.
The importance of Legislative Drafting
• What degree of intervention the law should
adopt in a particular circumstance depends
not on ideology but the specific facts of the
particular social problem the law attempts to
solve.
• To facilitate democratic social change, you as a
legislator, must do more than pronounce
inspiring policies. You must enact effective
legislation.
The importance of Legislative Drafting
• That task requires you to perform three law-
making jobs:
I. enacting legislation,
II. overseeing its implementation, and
III. communicating with constituents.
Whether you contribute to all three tasks
depends on your capacity to assess a bill in the
public interest.
The importance of Legislative Drafting
• “A law” means a rule promulgated by the state and
implemented by officials.
- A law may take many forms: statutes, local ordinances,
subsidiary legislation, ministerial rules, administrative
regulations, a military junta’s decrees;

• “The legal order” means the entire normative system in

which the state has a finger.
- It includes, not only the laws themselves, but also the
institutions that make the laws (legislatures, independent
agencies, ministries, and courts) and that implement the laws
(courts, ministries, the police) (others sometimes call this ‘the
legal system’).
The importance of Legislative Drafting
• Contrarian’s argument #1: Society makes law;
law constitutes an artifact of society. How can
society’s artifact change the society that made
it?
• Answer: ‘Society’ does not make law. Law-
makers – like yourself – make law. Within the
limits of law, law-makers can use law to
bolster existing institutions, or to change
them.
The importance of Legislative Drafting
• Contrarian’s argument #2: The ruling class controls
both the law-making system and the economy. The
ruling class will never introduce laws that disadvantage
the ruling class.
• Answer: In every country’s history, moments occur
when opponents of the class that controls the
economy control the lawmaking machinery.
Immediately after the defeat of colonialism, giant
colonial companies often still held controlling
economic power. New, populist parties held political
power. These new parties had an opportunity to use
law to change the inherited economic institutions. (Too
often they failed – but that is another story.)
The importance of Legislative Drafting
• Contrarian’s argument #3: Many laws do not achieve
their stated goals, not due to accident, or law-makers’
inattention, but because using law to induce social
change cannot work.
• Answer: Sometimes, law works. Before an income tax
law, nobody paid income taxes. Without a national
election law, people cannot vote in national elections.
Sometimes law does not work. In no country does a
law forbidding sexual intercourse between unmarried
people achieve 100% conformity to its commands. The
problem is to discover what makes some laws work
and others fail, and then to use that knowledge to
write effective laws.
The importance of Legislative Drafting
• Contrarian’s argument #4: Law’s function
concerns dispute settlement. The laws declare
rights and duties to instruct judges how to decide
cases. It has no function in behavioral change.
• Answer: Law has many functions. Among them, it
decides disputes. To facilitate development and
transition, law serves as government’s principal
instrument to change problematic social
behaviors.
The importance of Legislative Drafting
• Contrarian’s argument #5: The post-modern school of
literary criticism ‘deconstructionism’ – holds that a
’‘text’ (the words on their face) has no inherent
meaning. A reader’s own perceptions and values shape
its meaning. A law’s readers – its addressees – similarly
interpret its text to suit their convenience – and never
mind what the law-maker intended.
• Answer: Words constitute more than silly putty.
Society exists because we can and do communicate
with each other. We can draft a law sufficiently
precisely to convey its core meaning to its addressees.
The importance of Legislative Drafting
• Contrarian’s argument #6: Only the rule’s
underlying political decision counts, not the
technical process of stitching words together into
a law. Design good policies, and legal technicians
will draft good laws. Study policy, not law.
• Answer: Of course a government must have
sound policies. A policy, however, does not
enforce itself. You must ensure that a bill
sufficiently translates its generalities into the
operative commands, prohibitions and
permissions of the law.
The importance of Legislative Drafting

• Contrarian’s argument #7: Behaviors reflect multiple causes.

Of these, the law constitutes only one. These causes interact
in ways so complex that nobody can say whether or how law
causes behavior. Unless one can do that, one cannot use law
purposively. The law and development project becomes a
mission impossible.
• Answer: Behavior never has a single, determinative cause. In
addition to a law’s words, other non-legal factors do influence
behaviors. In assessing a bill, you must understand not only its
words, but also the non-legal constraints and resources that will
affect the behavior of its addressees. By changing the causes of
problematic behaviors, however, law can induce more desirable
ones.
The importance of Legislative Drafting
- The contrarians overstate the case. Law works
sometimes (income tax, election law); it does not work
other times. The problem becomes to understand the
factors that produce in one case effective law, and in
another, merely symbolic law.

• To help solidify the above arguments and the

conclusion reached following is presented the idea of
the problem solving approach to drafting.
• This idea of the problem solving approach in drafting is
considered vital to developing nations like Ethiopia and
makes a very good sense to take good note of.
 Problem Solving Approach to Drafting

• The legislative problem-solving approach is a

methodology that seeks to solve or prevent
social problems based on reason (that is,
looking at the facts as they are in the “real
world”) and the experience of those who are
connected with the social problem.
• The legislative problem-solving approach is
simply away to explain problematic behavior in
order better to understand the behavior.
 Problem Solving Approach to Drafting

• Thus, the legislative problem-solving approach is a step

by step method of finding effective legislative solutions
to social issues or problems.
The basic steps are;
A) To identify the problem as it exists,
B) To analyze and explain the problem and create
hypotheses based on the causes of the problem,
C) To propose solutions based on the these hypotheses, and
D) To create a system to monitor and evaluate the chosen
policy in order to understand which hypotheses were
incorrect (and why) and to modify the policy accordingly.
 Problem Solving Approach to Drafting

Here are the steps in more detail:

Step 1—Identify and describe the social problem and the
persons and institutions involved in the problem.
a) Identify and describe the main problem.
- Identify the social problem: legislations should be designed to fix social
problems.
- Therefore, drafting effective legislation requires the drafter to be able
to precisely identify the social problem or issue to be addressed by
legislation.
- What is the problem the legislation seeks to solve?
- What are ways not to state the problem? (e.g., “There is no law
on [topic]”.) What is the best way to state the problem? (e.g.,
“Rural farmers are unable to get their crops to market in a cost-
effective way”.)
- If possible, state the problem as a specific action or omission on
the part of the persons and institutions involved in the problem.
 Problem Solving Approach to Drafting

b) What is the problematic behavior and who is

responsible?
- Identify the persons and institutions (including
current implementing agencies) that may contribute to
the problem).
Who is responsible?
- Here, the first step in more precisely describing the
social problem is to separate “symptoms” of the
problem from actual problem behavior.
- Who is affected by the problem? In what way are
these persons affected?
 Problem Solving Approach to Drafting

c) What is the underlying problematic behavior?

Identify the problematic behavior of these persons
or institutions.
d) Identify other persons that are affected by the
problem (usually in a negative way).
e) Identify possible implementing agencies:
agencies that now have (or could in the future
have) responsibility for implementing the
legislative solutions to the problem.
 Problem Solving Approach to Drafting

Step 2—Analyze and explain the problematic behavior and

create hypotheses (explanations) based on the causes of the
behavior.

a) Analyze the problematic behavior of the persons and

institutions that contribute to the problem in order to create
hypotheses about why these persons and institutions act, or fail
to act, as they do.
b) Seven analysis factors to help determine the causes of
problematic behavior,
- The legislative problem-solving approach uses seven analytic
factors to help explain why the problem is occurring.
- Each factor focuses on one aspect of a behavior and asks
questions that will lead to a better understanding of the
problem and helps to come up with more meaningful policy
responses.
 Problem Solving Approach to Drafting

The seven factors are :

1. Rules: The term “rules” most often refers to law, or social norm that affects a
stakeholder (regulated person) and contributes to the problematic social behavior.
Some examples of ways in which the rules contribute to the problem are the
following:
a) Laws which are vague or ambiguous.
b) Laws that permit or require the problematic behavior.
c) Laws that do not address the causes of the problematic behavior.
d) Laws that do not provide for accountability in their implementation.
e) Laws that grant too much discretion in their implementation or that too greatly
restrict discretion.
2– Opportunity
- The term “opportunity” refers to the circumstances, occasion, chance, or
probability that a stakeholder has to engage in the problematic social behavior,
to obey or disobey a law, rule, or social norm.
- One possible example is the opportunity of governmental officials to engage in
corrupt behavior (such as accepting or soliciting bribes).
 Problem Solving Approach to Drafting
3– Capacity (or ability)
- The term “capacity” refers to the ability (or inability) or capability that a
stakeholder has to engage in the problematic social behavior, obey a law, rule, or
social norm.
- Capacity also includes any obstacles that may impede or prevent the stake
holder’s ability to engage in the problematic behavior or the inability to engage in
desired behavior. (In practical terms, “capacity” often overlaps with “opportunity”.)
- Some possible examples that address the “capacity” factor are: inability to
obtain credit, lack of expertise, or lack of transportation (for example, a farmer
who cannot get produce to market).
4– Communication
- The term “communication” refers to the effectiveness with which a law, rule,
or social norm is communicated to the stakeholders affected by the law,
rule, or social norm.
- If people do not know what actions the law permits, requires, or prohibits,
how can they possibly be expected to act in conformity with the law?
- It also includes communication between implementing agencies (regulators)
and stakeholders and among different implementing agencies.
 Problem Solving Approach to Drafting

5– Processes and procedures

The term “process” refers to criteria and procedures (or other
pragmatic or logistical aspects) that
a) explain the decision-making process that leads a
stakeholder to decide whether to conform or not to
conform to a law, rule, or social norm, and
b) encourage or discourage a stakeholder in confronting the
problematic social behavior.
This factor is particularly important in the case of an institution
(such as a governmental agency, a corporation, or other
complex organization), in which the decision-making process is
not vested on a single individual; how an institution’s
complexity, structure, and procedures can affect the
institution’s decision on its course of action — especially when
it comes to obeying or disobeying the rules.
 Problem Solving Approach to Drafting

6– Interest and incentive (or disincentive).

The term “interest” refers to the incentive or motivation (both
material and non-material) for a stakeholder to engage in the
problematic social behavior.
This is the stake holder’s perception of the personal costs and
benefits of complying with the law, rule, or social norm.
Many types of personal incentives or motivations may
constitute an interest that is sufficient to affect or contribute to
the problematic social behavior.
This factor also includes “disincentives” that discourage good
behavior.
Some possible material incentives (or benefits): Money or
increased employee fringe benefits.
Some possible non-material incentives (or benefits): Personal or
political power or the esteem of family, friends, associates, and
others.
 Problem Solving Approach to Drafting

7– Ideology:
- The term “ideology” refers to the values and
attitudes that shape how we look at the world
and, therefore, shape our decisions.
- The backgrounds and personal values each
person brings to any set of circumstances,
which, in turn, affect how the person behaves
in the face of those circumstances.
 Problem Solving Approach to Drafting

c) There may be multiple and overlapping

explanations for problematic behavior.
- Remember that often more than one factor may interact to
affect or contribute to the problematic behavior.
- For example, a rule affecting a person may require the person
to do something that cannot be completed because the person
lacks the capacity to do it.
- In this example, the “rule” factor has combined with the
“capacity” factor to explain the problematic behavior.

d) Create hypotheses or explanations as to the

causes of the problem using the 7 analysis factors.
 Problem Solving Approach to Drafting

Step 3—Propose possible solutions based on these

hypotheses.
a) Formulating solutions
• Finding solutions that address the causes of
problematic behaviors.
• Explanations for problematic behavior dictate
potential solutions.
• Where to look for solutions: (a) foreign law and
experience, (b) professional literature, and (c)
your own country’s past experience.
 Problem Solving Approach to Drafting
b) Designing implementation provisions.
1– Finding solutions that address the causes of problematic behaviors.
2. General categories of solutions
i. direct measures, associated with interest or incentive. Direct measures include
both punishments and rewards.
ii. indirect measures, Indirect measures address factors associated with
opportunity, capacity, communication, and process. Such measures are generally
not rewards or punishments.
and
iii. educational measures: Educational measures are generally aimed at influencing
ideology, but may also deal with capacity in situations in which the capacity factor
involves a lack of information or expertise.
3. Choose an implementer from the following types of implementers
• courts and tribunals,
• administrative agencies,
• public corporations, and
• private-sector organizations.
• Choose between using an existing implementer or establishing a new one.
 Problem Solving Approach to Drafting

c) Elaborating alternative solutions.

d) Assess the costs and benefits of each of the possible
solutions and choose the solution most likely to solve the
problem in the most effective way.
• Purposes of cost-benefit analysis.
• Monetary and non-monetary considerations.
• Basic methods of analyzing costs and benefits.
• Comparing the chosen policy with doing nothing (“status
quo” analysis).
• Comparing the chosen policy with alternative policies.
e) Judging between alternative solutions.
f) Combining the provisions into a comprehensive policy.
 Problem Solving Approach to Drafting

Step 4—Create a system to monitor and evaluate the chosen policy

in order to understand which hypotheses were incorrect (and why)
and modify the policy accordingly.
• To further explain in detail the problem-solving approach to legislation,
the essential job of a professional legislative drafter is to make sure that
the legislation will solve the problem being addressed by the sponsor
(proponent) of the legislation.

• It is very important to ask the right kinds of questions of the proponent

of the legislation in order to understand the “actual” intent of the
legislation, not just the “superficial” intent that may appear in the words
of the draft.

• The problem-solving approach is a practical tool you can use to obtain

(or seek) the information you and other policymakers will need to put
together legislation that is actually effective in solving social problems in
society.