Legislative Intelligibility and the Rule of Law

• Author: John-Paul Boyd
• Date: January 16, 2015

At some point in our education, we learn that we live in a nomocracy, a society governed by the rule of law. Although the phrase trips lightly off the tongue of judges and deans at call ceremonies, it is in fact a complex and enormously important concept that underpins our system of government and separates Canada from not only North Korea but from more junior democracies, like Thailand and Egypt, prone to coups d’état.

Apart from meaty ideas about fundamental justice, arbitrary decision-making and the independence and interrelationship of the branches of government, the rule of law also describes certain basic principles about the legislature and the legislation it produces:

Laws should treat those they govern equally.

Laws should be forward speaking and avoid retroactive effect.

Laws should be published and freely available to those they govern.

Laws should be clear, comprehensible and certain.

This last principle is worthy of special consideration in the age of the litigant without counsel. It seems to me that central idea here is that legislation should be intelligible on its face, or, more specifically, that the average citizen, possessed of average intellect, average education and average fluency in an official language, should be able to read and understand the text of a particular piece of legislation as well as its application to her circumstances. If I’ve got this right, then a corollary principle logically follows:

Persons governed by a law should not be required to obtain legal advice to follow the law.

After all, the average citizen should be able to access and understand the laws of the land regardless of her means or inclination toward lawyers, particularly in respect of laws carrying penal, economic or social consequences.

In my view, however, much of our present legislation and regulation fails this test spectacularly. Although I’m not particularly preoccupied with legislation governing banks and corporations, I am concerned about the rules governing civil proceedings and the law on domestic relations, personal taxation, government benefits and criminal conduct, and it seems to me that a major goal of law and justice reform over the next decade should be improving the accessibility of the legislation and regulations most affecting individuals.

The principles barriers to the intelligibility of a particular law are, in my view, are excessively involuted sentence structure, the use of language other than in its plain or ordinary sense, and...