Would a Parliamentary Counsel by Any Other Name Be More of a Law Draftsman?*
| DOI | 10.1093/slr/3.1.13 |
| Pages | 13-22 |
| Date | 01 March 1982 |
| Year | 1982 |
| Published By | Oxford University Press |
Would a Parliamentary Counsel by
Any Other Name be More of a
Law Draftsman?*
By N.
J.
Jamieson, BA (N.Z.), LLB. (V.U.W.)t
"... as a rule there is no person or body of persona in a society whose will
always
prevails;
in fact as has been truly said, the real rulers of society are
never discoverable."
J. L. Brierty, Tht Law of Nations:
An Itttrvdudum to tht
International
Law
o/Ptace,
p. 13
Rome's legislative draftsmen styled themselves juris Jmdtnla,1 thus demon-
strating their view of legislative composition being the main trunk ofjurispru-
dence. Other Roman lawyers3 referred to them
as scribae—not
so scornfully3 as
this now seems to us, because the status of the scrivener4 never declined to that
of the scribe until the invention of printing made it so in our own middle ages.
However legislative draftsmen saw themselves in imperial Rome was never-
theless rather different, as human affairs usually prove, from the way that
odiers saw them. Juris
prudmtts
they may have been, as indeed they saw
themselves, radier than
scribae
as others saw diem. There is no evidence that
they
ever
professed themselves to be jurisconsults. Perhaps they were
too
much
the
prvdenits
for diat
The position of legislative draftsmen in English-speaking common law
countries bears witness to die
age old
ambivalence towards legislative composi-
tion.
This ambivalence gives rise to much controversy and confusion. In a
fundamental sense it has much to do with different metaphysical attitudes
towards the relationship between words, ideas, and things. Even in a less
metaphysical sense it raises issues involving the linguistic relation between
politics and law. In these circumstances it becomes difficult to ascertain
responsibility and evaluate the blame that
is
heaped
more
usually nowadays on
the draftsman's head. The confusion and controversy over legislative composi-
tion is often the result of ignorance of die subject, and a lack of vocation for it,
occasionally on die part of the draftsmen no less than dieir critics. With very
few exceptions little is done to research and improve die process of legislative
* This paper wmt delivered to the 1981 Conference of the Australasian Universities Law
Schools Association, held at Macquarie University,
t Formerly Parliamentary Counsel (NZ), Senior Lecturer in Law University of Otago.
>
F. S&ub,
PriadfiUi
if Roma
Uw(\9M,
1967), p. 80, note 3.
*IUd
* Although Cicero contemptuously referred to them as
ittrarH
or copyists they were every bit
as much gentlemen of repute as are today's parliamentary counsel.
4 In this context, it may be helpful
to
recall the medieval distinction between the scrivener and
scribe. For an account of the scrivener's tradition and the revolution affected on it by
priming see the social history of Caxton's time.
13
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