The fridge-door statute.

• Author: Macdonald, Roderick A.
• Position: Reform the standard form of legislation

The archetypical statute, with its roots in the nineteenth century, remains the standard form of legislation, even though many parliamentary outputs today canner be reconciled with its formal or functional constraints. The author argues that the plurality of audiences for legislation today makes the universalizing aspirations of the Classical stature problematic. An entirely new form of statute is needed.

The author begins with a critique of the assumptions behind the nineteenth-century stature, using Lon Fuller's principles of good legislative design as a starting point. Many of these assumptions are no longer reflected in legislative practice: net all law is explicitly enacted, or enacted by a legislature, or meant to function as commands, or promulgated in the same form or style, or easily understood by the public at large.

The changes in the needs and assumptions of the audience for legislation will lead to a new kind of statute--a statute that more resembles the varied normative messages posted to the family fridge door than it does the Classical nineteenth-century statute. The fridge-door statute will recognize that words are not the whole normative message: different forms of writing and different media will contribute to a shift from the semantic to the semiotic, as how the message is received becomes more important than the form of the message itself. Moreover, the fridge-door statute will embrace the interactive and negotiated character of legislation. Rather than positing unchanging rules, it will welcome experimentation and revision, and set out standards of aspiration, rather than minimum duties. Devising new statutory forms that acknowledge and exploit the potential of fridge-door normativity is a key challenge for legislative drafters today.

Ne au dix-neavieme siecle, l'archetype du statut demeure aujourd'hui la forme courante de la legislation bien que plusiears publications parlemantaires ne puissent se reconcilier avec ses contraintes officielle et fonctionnelle. L'auteur soutient que la pluralite du public auquel la loi est destinee rend problematiques les aspirations universalisantes du statut de l'epoque classique. Une nouvelle forme de statut est donc necessaire.

L'auteur commence par une critique des postulats du dix-neavieme siecle en posant comme premisses de depart les principes de bonne conception legislative de Lon Fuller. Or, la pratique legislative ne reflete plus nombre de ces postulats. En effet, ce ne sont pas toutes les lois qui sont adoptees expressement ou par le legislateur, destinees a servir de directives, promulguees dans la meme forme ou le meme style, ou facilement comprises par le public en genrral.

Les changements dans les besoins et les conjectures du public auquel la loi est destinee entraineront la creation d'un nouveau genre de statut ressemblant aux divers messages normatifs affiches sur la porte du frigo familial qu'a la formule du statut classique du dix-neuvieme siecle. Le statut porte de frigo reconnaitra que les mots ne constituent pas le message normatif dans son entier: d'autres formes d'ecrits et differents medias contribueront au transfert de la semantique a la semiotique, de telle sorte que la maniere dont le message est recue devient plus importante que la forme meme du message. De plus, le statut porte de frigo comprendra la caracteristique interactive et negociee de la legislation; mais au lieu de poser des regles immuables, il accueillera l'experimantarion et la revision, et etablira des standards d'aspiration plutot que des devoirs minimums. Le principal defi que se doivent de relever les auteurs de la legislation aujourd'hui consiste a concevoir des formes de statut reconnaissant et exploitant le potentiel que represente la normativite de la porte du frigo.

1. In the Beginning Was the Word

   For many citizens, the archetype of law is to be found in legislation, and in a particular kind of legislation at that--the statute. Five features epitomize the lay conception of statutes: (1) explicit enactment, (2) by a supreme rule-making body such as a parliament, (3) of relatively straightforward commands, (4) in a standardized style and form, (5) using the everyday vocabulary and syntax of a natural language (in Canada, for example, English and French). In the public mind, the Criminal Code (1) is thus the standard instance of the statute, and the whole of the law is simply a compendium of statutes like the Criminal Code. (2)

   Jurists know, of course, that these popular understandings are radically open to question. The reasons are many. The place of legislation in the legal order is more contingent than the popular view admits, The statute is only one type of legislation. The style and form of statutes are quite varied. Consider the extent to which each of the five presumed characteristics of statutes are attenuated in contemporary experience.

   Not all law, and not even all written law, is explicitly enacted. The conscious and deliberate laying down of legislative rules to govern behaviour is only one way in which official law is made manifest. Important legal rules also emerge in the decisions of courts or administrative tribunals; others result simply from settled patterns of interaction by which people reciprocally adjust their behaviour to perceived needs and expectations; still others are derived from religion, morality, and other ethical systems. (3)

   In addition, many legislative instruments are not enacted by a supreme rulemaking body. Besides parliamentary expressions of legislative will, citizens routinely confront reams of legal rules produced by inferior bodies like municipal councils, schools boards, and administrative agencies. More than this, legislative rules can be promulgated without the intervention of the State: examples include the by-laws and regulations of social clubs, cottage proprietors' associations, trade unions, universities, and corporations. Still other regimes of rules--codes of conduct, technical standards, apartment building regulations, and so on--are incorporated into documents like membership application forms, contracts of sale, collective agreements, and leases. (4)

   Only some statutes are meant to function as a command, or as an instrument of social control. While every legal rule is, in one dimension, a limitation on freedom, the bulk of the law today is meant to facilitate human interaction through rules that coordinate behaviour. This is true not just of "power-conferring" rules governing the validity of private mediating documents and deeds such as wills, trusts, and contracts, but also of the everyday "duty-imposing" rules usually associated with regulatory statutes and the criminal law. To view legislation only as a command is analogous to viewing the rules of grammar and the definitions of words found in a dictionary as being primarily directed to constraining out ability to speak and write meaningfully. (5)

   The form and style of statutes are impossibly varied. Some legislative texts, like the Ten Commandments, are a list of pretty simple prohibitions or injunctions: "Thou shall not bear false witness against thy neighbour." Some, like thirteenth-century English statutes, are elaborate narrative texts that explain their purposes not only in lengthy preambles, but also in their various sections. Some, like the great nineteenth-century consolidating codes and statures, are largely taxonomic: "Obligations arise from contracts, quasi-contracts, offences, quasi-offences, and from the operation of the law solely." (6) Some, like many late twentieth-century corporate, tax, and commercial law statutes, are quite detailed and technical. Some, like many consumer protection statutes, are little more than consolidations without an organizing concept, and resemble laundry lists of single instances. Some are no more than a legislative reversal of a specific judicial decision. And some, like the declaratory enunciations one finds in a National Flag of Canada Manufacturing Standards Act (7) or a National Anthem Act, (8) are not directly normative at all. (9)

   Finally, the notion so neatly expressed centuries ago by Gaius that legislation is "written custom" no longer captures the logic of the statute book. Written custom implies a textual law that is accessible to the average, reasonably literate person. Today, many regulatory statutes are cast in highly recondite language (sometimes complemented with mathematical equations, chemical formulae, diagrams, and genetic codes), directed to a highly specialized audience, and meant to be interpreted by a highly sophisticated judge. This is not all. Even statutes ostensibly directed to the public at large--marriage, divorce, and family legislation; home warranty acts; occupier's liability laws; landlord and tenant enactments--are beyond the ken of most citizens. While Parliament may think it is using canonical forms of words to speak to all Canadians in the manner that God spoke to all Israelites, the reality is otherwise. The contemporary statute, far from being the key by which citizens are enfranchised to know, to interpret, and to criticize law, has become the means by which they are excluded from debates about normative meaning in society. (10)

   Despite professional acknowledgement that the enterprise of legislation is more complex than lay understandings appear to allow, it is not at all clear that contemporary law-making aspires in theory, or typically even manages in practice, to present this complexity in a manner apprehensible to citizens. In popular perception, the legal institution known as the statute systematically "disses"--disenchants, disempowers, disengages, and disrespects. Its general form, substance, vocabulary, syntax, manner of drafting, organization, and material appearance are indisputably arcane. Although the linguistics of legislation do not now line up with its presumed ontology, there is notwithstanding something mystical about the Word when...