What is the nature of legislative drafting – art, science, somewhere in between?
This is not a new debate, nor is it confined to the drafting of legislation. Today, we are witnessing the next generation of the debate unfold across the legal industry as lawyers ask themselves whether some of their drafting work will be replaced by DIY document services, artificial intelligence and coded contracts. The preliminary question in each instance lies in the nature of legislative drafting and whether it is an art or a science.
Viewing the law and the drafting of legislation as an art is, of course, the traditional view, but that is under scrutiny with the rise of automation. Some say that as the legal world looks towards the implementation of Law 3.0 where there is a perception that new technologies present themselves as regulatory tools to be deployed alongside linguistic rules, professional services like law are evidently more science than art. Another argument is that the law is just like computer code, in other words, a set of rules that can be turned into executable instructions for a computer. Others maintain that the practice of law and thus the work of lawyers will always be an art; that the reality of language and the practice of drafting relies on the judgment, knowledge and skill of the individual drafter and thus cannot be replicated by an algorithm.
Is it possible to arrive at a definitive conclusion? Let’s begin by examining the various arguments that surround the debate.
The art of drafting
Perhaps the best-known modern expression of the viewpoint that drafting is an art is a lecture called The Art of Legislative Drafting by British lawyer and retired parliamentary draftsman, Sir Geoffrey Bowman. Bowman argues that there is nothing mechanical about the composition of legislation, nor will there ever be. His argument centers around the following points:
- All bills are different
- All ideas for legislation need analysis and creative ideas from the drafter
- It is impossible to predict where the iterative process of drafting will lead
- The drafter operates in a “stark and precise literary environment” which denies them some of the techniques available to other authors and the techniques that are available require judgment
- Language and techniques change all the time
“The legislative drafter can very rarely draw on a precedent. Each Bill needs to be approached as a unique exercise. This is evident in the early stages of a Bill, when the drafter carries out his function of discovering the department’s intention and analysing the proposed policy to see whether it works. In fact, this is one of his main tasks.”
Sir Geoffrey Bowman
The science of drafting
If drafting is ‘not quite an art’, is it more a science as some would suggest?
In many ways, law as a science would seem to stack up, promising as it does, certainty, mathematical precision, uniformity, and accuracy. As a professor of law at the University of Illinois wrote in a 1934 paper: “Then the legal consequences of particular conduct could always be known in advance. This would seem desirable so that people in the usual and comparatively simple situations may know what to expect of others, how to conduct themselves toward others, and how to manage their business affairs without getting into legal difficulties.”
But if law is a science, does that mean there is no elasticity? And if lawyers were to be replaced wholesale by technology, would the result be a more rigid society that functions more like a ‘hard-coded machine’ than a fluid society?
Aristotle and phronesis
In her book, Drafting Legislation: Art and Technology of Rules for Regulation, Helen Xanthaki deliberates the arguments that surround this debate.
Drawing on Aristotle, she discusses three options:
- Science as episteme
- Art as techne
Techne, she says, is a craft or art that is concrete, context-dependent, and variable. Law practiced as techne would be like consulting aimed at better laws by means of “instrumental rationality where ‘better’ is defined in terms of the values and goals of those who employ the consultants, sometimes in negotiation with the latter.”
Episteme concerns universals and the production of knowledge that is invariable, achieved via analytical rationality, and corresponds to the modern scientific ideal as expressed in natural science. According to Xanthaki, law as episteme would be basic science focused on universality and searching for generic truths.
Phronesis is practical reasoning, practical wisdom, moral discernment, moral insight and produce. Phronesis, writes Xanthaki, can manage human affairs including episteme and techne which cannot manage themselves. Law as phronesis encourages continued uniform application, and so supports certainty and the rule of law in the civil law tradition.
For Xanthaki, the debate between drafting as an art or a science seems to be false as it ignores relativity as the heart of legal science. Law and consequently drafting, she concludes, is not part of the arts nor the sciences; it is phronesis, the “art of judgement”. Principles and rules may apply but only in principle because phronesis supports particularity. As it is phronetic, law is context-dependent – “in the sense that it can only inform on what might work in certain circumstances but the decision on what to do in any specific circumstance will always depend on normative judgements that must be made by those who are there. It is also subject to revision as new perspectives are encountered.”
Preserving the art of ‘it depends’
For Xanthaki, the law and the drafting of legislation can accordingly be thought of as an arty science which is not perhaps a satisfying conclusion, leaving us, as it does, right back where we started: on the fence. However, phronesis – a term less widely used today – is a timely reminder of the subjectivity and variability of humans. It also provides another lens through which to view the debate and how the question of technology might play out. The scientific features of drafting legislation may be automatable; the ‘art’ aspects are not.
This undeniably creates a challenge but also an opportunity – technology that enables this balance must be flexible, working with the drafter to enable smoother and more efficient processes and supporting with tools that assist judgment and contextuality. In this way, technology will drive innovation and free drafters up from the necessity of applying themselves to mundane, repetitive tasks while allowing them to focus on the art of drafting.