The uses and audiences of preambles in legislation.

• Author: Roach, Kent

This article documents the increased use of long and substantive preambles in federal legislation from 1985 to 2000. Only nine statures had such preambles in the first rive years of this study, while in the last rive years, twenty-nine statutes did. Preambles were most frequently included in legislation arising from intergovernmental agreements, symbolic legislation, ideologically charged amendments of criminal and environmental laws, and legislation enacted in reply to court decisions.

Plato suggested that preambles should persuade citizens to obey important laws by speaking to their hearts and minds through both reason and poetry. The author contends that this ideal is not met by contemporary preambles. Though preambles are often included in important legislation, they rarely speak directly to citizens as they do hot use popular language or a persuasive voice.

Various political uses of preambles are examined and die author concludes that contemporary preambles often seek to establish legitimacy by providing a narrative of the origins and purposes of the legislation. The professional uses of preambles are also examined, particularly the role of preambles in statutory and constitutional interpretation and in dialogues between the legislature and courts. The author concludes that while preambles have frequently oversold legislation and have been excluded from working versions of file law, they should still be included in important laws to better outline the proposes and processes which led to the enactment of the legislation and better communicate with the multiple audiences of modern legislation.

Cet article documente l'emploi croissant de preambules longs et substantiels dans la legislation federale de 1985 a 2000. Dans les cinq premieres annees de cette etude, seuls neufs statuts avaient de tels preambules, alors qu'au cours des cinq dernieres annees le nombre de statuts passa a vingt-neuf. Les preambules etaient frequemment inclus dans la legislation provenant d'accords intergouvernementaux, dans la legislation symbolique, dans les amendements de lois ideologiquement charges tel que les lois de droit penal et environnemental et dans la legislation adoptee en reponse a des decisions jurisprudentielles.

Platon suggerait que les preambules devaient persuader les citoyens d'obeir aux lois importantes en s'adressant a leur coeur et leur esprit par la poesie et la raison. L'auteur conclut que les preambules contemporains ne satisfont pas cet ideal. Bien que les preambules soient inclus dans la legislation importante, rares sont ceux qui s'adressent directement aux citoyens car ils n'utilisent pas un langage courant ou une voix persuasive.

Apres avoir examine divers emplois politiques des preambules, l'auteur conclut que les preambules contemporains recherchent souvent a etablir la legitimite en presentant une narration des origines et des objectifs de la legislation. Les emplois professionnels des preambules sont egalement etudies en portant une attention particuliere au role des preambules dans l'interpretation legislative et constitutionnelle ainsi que dans les dialogues entre le legislatif et les cours, Meme si les preambules ont souvent mis en avant la legislation et ont ete exclus des versions de travail des lois, l'auteur conclut qu'ils devraient neanmoins etre inclus dans les lois importantes afin de mieux determiner les objectifs et les procedes ayant mene a l'adoption de la legislation ainsi que mieux communiquer avec les nombreux anditoires de la legislation moderne.

Introduction I. Patterns in the Use of Preambles in Recent Federal Legislation II. The Platonic Ideal: Preambles Persuade Citizens III. Can Preambles Persuade Citizens Today? IV. Political Uses of Preambles A. Narrative Uses B. Aspirational Uses V. Professional Uses of Preambles A. Preambles and Statutory Interpretation B. Preambles and Constitutional Interpretation Conclusion Introduction

An interesting new trend in federal legislation is the increased use of long and substantive preambles. Writing in 1991, Pierre-Andre Cote remarked in his text on statutory interpretation that "[t]oday preambles rarely precede the provisions of a public statute." (1) The next year, however, Parliament included a long preamble to its comprehensive amendments of the law of sexual assault in response to the Supreme Court of Canada's decision in R. v. Seaboyer. (2) By 1994, Ruth Sullivan commented that "[a]lthough for a time preambles were out of fashion, particularly at the federal level, in recent years they appear to have enjoyed a revival." (3) Since then, Parliament has continued to add preambles to federal legislation not only when it enacted legislative replies to the Supreme Court's decisions in R. v. Daviault, (4) R. v. O'Connor, (5) R. v. Feeney, (6) and the Reference re Secession of Quebec, (7) but also in other amendments to the Criminal Code, (8) some federal statutes involving Aboriginal land claims, (9) environmental legislation, (10) and legislation to honour certain events. (11) Even the legislation creating the Law Commission of Canada has its own preamble setting out Parliament's expectations for that body. (12) For most legislation, however, substantive preambles are not used, raising the question of why preambles are included in some laws and not in others. In other words, what are the intended purposes of preambles and who are their intended audiences?

A study of preambles may provide insight towards building a general theory of legislation and in particular the fundamental issues of the purposes and audiences of legislation. In the pursuit of multiple purposes, legislation speaks to multiple audiences. The most idealistic purpose of legislation is to provide guidance to citizens about their rights and duties. Since the discussion of the role of preambles in Plato's The Laws, (13) it has been recognized that preambles have the potential to do a better job of communicating with citizens than the actual text of statutes. Preambles attempt to explain and persuade before the text of the law commands.

The Platonic ideal of preambles, however, raises the larger question of the role of politics in our modern age. Many no longer have faith in a politics that speaks to all citizens and convinces them of the value, rationality, and importance of the laws. Politics is more complex in modern multicultural societies than in the Athenian state. Preambles can be a response to interest group politics that speak to only a subset of the citizenry. Even when they speak more broadly, the poetic preambles of Plato may have degenerated into a form of political advertising for statutes that promise much more than they deliver. Preambles can make extravagant claims about what legislation achieves or hopes to achieve that are not supported by the text of the law. The appeal to the heart of the evocative narratives, aspirations, and symbols used in preambles may also lead to legislation that is unreasonable and unbalanced in its passion. The form of the preamble could shape the substance of the legislation and not always for the better.

At the same rime, the Platonic ideal of preambles can perhaps be reclaimed and reshaped for the modern age. By including narratives about why laws have been enacted, preambles have the potential to educate the citizenry and policy-makers. They can provide some of the narrative detail and storytelling often missing from legislation. They can also be used as a device of deliberative democracy as they can convey some of the deliberations and accommodations that preceded the enactment of the legislation. A preamble can thus signal the sometimes contradictory directions that legislators have been pulled in before they have settled on the text of the law. (14) More pluralism in the form of legislation may be necessary to better reflect the pluralism of the society being governed.

Although there is a risk that a preamble will oversell the legislation, preambles may also have a role in stating high aspirations, moral teachings, or "meta-legal messages" (15) that could not be realistically reduced to and enforced through the operative text of the law in a society that is liberal and free. (16) Preambles may provide a means for legislators to offer a somewhat more Romantic understanding of legislation, one that is "less general, less canonical, less instrumentally prescriptive, more intuitive, more aspirational, more narrative." (17) Preambles may once again, as Plato imagined, allow legislators to appeal to the heart as well as the mind and to persuade, explain, and inspire as well as command. I will explore these optimistic possibilities for preambles, but also express some reservations about excessive romanticism in the move towards preambles.

In addition to political and expressive purposes, preambles also serve professional purposes by speaking to those who administer the law. Yet, it is unclear how important preambles will be in the subsequent statutory or constitutional interpretation of legislation. Judges may be skeptical about preambles that are not supported by the law's actual provisions. They may also conclude that in terms of the Canadian Charter of Rights and Freedoms, (18) preambles speak only to the importance of Parliament's objective, something accepted in the vast majority of cases, and not to the proportionality of its means. Cynicism about the instrumental and professional value of preambles is only promoted by the fact that preambles are excluded from many working versions of the law, including the commercial criminal codes that sit on the desks of lawyers across the country. (19) A conclusion that preambles are often a form of symbolic politics that are ignored by the professionals who administer the law would not mean that preambles are unimportant, but it would complicate our understanding of the multiple purposes and audiences of legislation.

This paper will first document the use of preambles in...