269-Article Text-264-1-10-20170103 PDF
269-Article Text-264-1-10-20170103 PDF
269-Article Text-264-1-10-20170103 PDF
Dou01.AS STOLTZ
The subject matter of law, however, itself takes the form of writing.
Legal rules and legal transactions are created, recorded and communicated
through the agency of language. Written laws and written documents are
to the barrister or solicitor what drugs and clinical instruments are to the
physician or surgeon. The function of written legal instruments is different
from that of other technical writing. It is to create and to give effect to legal
obligations, probtbitions, rights and immunities. Rather than describe
something, they prescnbe or proscribe something.
The party of the first part will keep the premises in good repair.
(Contract)
The first two examples are rules. They arc expressed to govern the conduct
of persons. A rule may be of general application, in the sense that persons
to whom it applies are unidentified. The persons governed by such a rule
are those who, by force of circumstance or by conscious choice, are brought
within its scope. Such rules include most (but not all} of the provisions
found in statutes, regulations and other descriptions of enacted law. On the
other hand, the rules contained in contracts, leases and licences have
application only to the named parties who have submitted themselves to the
terms of such documents.
Example (1) is in rule form, while examples (2A) and (2B) are in
command form, but the effect is the same. The command form draws
attention to the act of authorizing and, when in the active voice, to the
author of the command. This is appropriate where the parties affected have
direct contact with the author, as in the case of a particular dispute before
a court or other decision-making body. It is less appropriate where the
provision is made by a legislative body addressing the community at large,
in terms that arc unlimited as to time and arc capable of applying to more
than one set of facts. In the statute book, it is sufficient for the fact of
enactment and the identity of the author to be expressed at the beginning
of each Act:
"Her Majesty, by and with the advice and consent of the Senate and
House of Commons of Canada, enacts as follows:"
The substantive provisions that follow then go on to deal in rule form with
the rights and obligations of Her Majesty's subjects, while Parliament recedes
from immediate view.
The first person can be used where the command is given orally or where
the context makes clear the identity of its author. It may be unnecessmy to
draw attention to the author, in which case the passive voice can be used.
In legislation, where there is an exacting clause such as that quoted above
and most provisions are in rule form, commands invariably are in the passive.
Given the existence of such "injunctive" rules, occasions may arise when it is
necessary to make exceptions from them.
In the absence of some "shall" or "shall not", a "need not" or "may'' would be
superfluous. From this perspective the auxiliary "shall" is seen as the basic
morpheme or linguistic element encountered in the drafting of rules in
English. This is a natural extension of its earlier use in other contexts.
Every such pronouncement could be punctuated for effect by "I say so",
implying that the will of the speaker is all the justification necessary to insist
on compliance. Implicit in each statement is the ultimate availability of some
means of enforcement. It is not a major leap from such an injunction,
delivered orally and in person, to one put into writing and adopted by some
formal procedure. The injunctive effect is simply generalized. It will apply
over and over for as long as it remains in effect.
The non-legal use of "shall" now has an antique ring to it, perhaps
because it smacks of Victorian authoritarianism in an era when the legitimacy
of conventional authority is under permanent attack. Today the imperative
mood is about as far as most authority figures care or dare to go.
legitimacy of the result. (The identification of the maker and the act of
adoption in an "enacting clause" thus has more than symbolic importance.)