Legislation: challenges and potentials.

There is something altogether natural in the joining of forces of the Law Commission of Canada, the Quebec Research Centre of Private and Comparative Law of McGill University, and the McGill Law Journal for the presentation of this special issue on legislation. Each institution shares a preoccupation with the legislative form and, in particular, with imagining the rightful place of enactment in the catalogue of legal ideas. Since its establishment in 1997, the Law Commission has identified legislation--defined in broad terms--as a central feature of its mandate relating to governance relations. (1) From its inception, too, the Centre of Private and Comparative Law has shown an abiding scholarly interest in the manner and form of legislative enactment, particularly in respect of the fortunes of the Civil Code of Lower Canada and the Civil Code of Quebec. (2) The McGill Law Journal has, in turn, identified legislation as a lively field of legal research over its fifty-year publication history. (3) All share a bijural and bilingual institutional orientation and an intellectual curiosity about the fundamental nature of law that extends to the polyjural and multilingual dimensions of the legislative form. Indeed all come to legislation as a site for communicative acts in law--a view that serves to fie the papers in this collection loosely together.

This is not to say that these three institutions or the authors they have gathered together in this issue surfer any more or less than most from that lawyers' disease that champions legislation, especially of the state-made variety, over other forms of law.

This malady, known by one of its Canadian clinicians as "legicentrisme", (4) might have been expected to produce a collection of essays more single-minded than this one. For if the scholars working on this special issue might have sympathy for the frequently-heard diagnosis that "toute loi en soi est un mal", (5) they would also no doubt argue that all legislation has the ambition, at the same time, to reach for the good life, however those charged with expressing a community's rules in writing might come to imagine it. (6) As a communicative act for law, legislation seems to speak in an essentially human voice--it is a way of expressing good and evil, the just and the unjust, welcome and exclusion. It is a means for giving voice to aspirations that are both instrumentally focused upon and symbolically detached from notional ends, and in the manner of all human speech, it ranges in style from the technical to the lyrical, from the rigorous to the obscure.

This project had its genesis in a series of meetings held at the Centre as an open-ended inquiry amongst scholars who agreed only that legislation is a subject worthy of study. At a first roundtable held at McGill in 2000, and at a second meeting in 2001, jurists convened around working papers that take final shape in this issue. (7) The ambitions of this collection, like those of the two roundtables, are both modest and immodest. The authors did not set out to produce a programme for the "future" of legislation, much less a comprehensive view of the topic. They nevertheless allowed themselves the vanity of organizing their deliberations around a philosophical inquiry--given legislation, how is it possible?--and specifically through the formulation of three questions that state the inquiry in different ways: How is legislation different from contract, adjudication, and other communicative acts for law? How are matters of form relevant to matters of substance in legislation? To what extent ought legislation to be shaped by the nature of its anticipated audience? The papers published here do not seek to answer these questions, but only to reformulate them for others with a fresh point of view. In part, these studies examine what one participant bas described elsewhere as "les conditions necessaires au recentrage du droit sur la loi." (8) Moreover, it appeared plainly through our discussion that legislation may also be thought of as a de-instrumentalized legal form. (9)

If there is a tentative consensus emerging from these papers, it is that legislation can indeed be understood both as a mode and a site of legal normativity. It is seen here as a space for the development of a deliberative consensus and as one in which law is not just provided, but is also explained and taught. It is a shape that, given its multiple modes of expression, carries with it the potential for the articulation of a broad range of thought. As one of law's many voices, legislation is a means through which...