BOOK REVIEWS
LIVRES NOUVEAUX
Legal Identity: The Coming of Age of Public Law. By Joseph Vining. New
Haven: Yale University Press, 1978. Pp. xiii, 214.
In
law, as in other intellectual disciplines, there is often a
congruence between the investigation of an active branch of a
subject and the writing of the “philosophy” of that discipline. One
discovers, for example, that Dicey developed his view of the English
constitution about the same time that he began to articulate a dis-
tinctive positivistic philosophy of law;1 that there was an intimate
connexion between Pound’s social interest theory of tort law and
his program for a sociological jurisprudence;’ and that leading ex-
ponents of legal realism shepherded the development of the Uniform
Commercial Code.3 The publication of Joseph Vining’s Legal iden-
tity, subtitled “the coming of age of public law”, marks a further
example of this congruence and perhaps evidences yet another shift
in the legal subject matter which stimulates jurisprudential writing.4
At one level this book simply reviews recent developments in a
technical aspect of administrative law, the non-constitutional law of
standings But the author has a larger purpose. He observes:
I Compare Dicey, Introduction to the Study of the Law of the Constitution
(1885) [commonly known as The Law of the Constitution] with Dicey, Lectures
on the Relations Between Law & Public Opinion in England During the Nine-
teenth Century (1905).
2 See Pound, An Introduction to the Philosophy of Law (1922) and A Theory
of Social Interests (1921) 15 American Sociological Society: Papers and Pro-
ceedings 16.
3 Llewellyn, The Common Law Tradition (1960); Statement (1954) 1 N.Y.
Law Rev. Comm’n Rep. U.C.C. 23.
4 One might also cite the jurisprudential work of Davis, Discretionary
Justice (1969), and Bishin & Stone, Law, Language And Ethics (1972) as
evidence of this trend. Both are written by teachers of public law in the United
States.
5 Vining postpones consideration of constitutional law standing cases to the
book’s final chapters (where he also deals with standing in private law),
although he suggests at pages 9 and 10 that the issues faced are similar. In
the Canadian context, compare Nova Scotia Board of Censors v. McNeil
[1976] 2 S.C.R. 265, 5 N.R. 43 with Rosenberg v. Grand River Conservation Auth.
(1976) 69 D.L.R. (3d) 384 (Ont. C.A.).
S276
McGILL LAW JOURNAL
[Vol. 25
The study of law is a powerful means of access to the communal mind,
and we have only a few. But it must be particularized. Depart from the
law’s doctrinal structure, the language in which law actually speaks, and
the method loses its strength …
. Following the thread of standing one
comes face to face with time and change, freedom and responsibility,
uniqueness and unity, skepticism and belief –
riddles that must be found
and faced, through one means or another, if human life is to have
meaning0
Thus, in this challenging and difficult monograph the reader is at
once treated to an erudite discussion of the threshold question of
judicial jurisdiction in administrative law –
and a
philosophical investigation of three notions which are fundamental
to Western legal thought – persons, values, and equality. For Vining
the concept of identity relates these two themes to each other, and
lies at the nexus of theory and practice; hence it is concurrently the
subject and the premise of the book.
locus standi –
Legal Identity commences with a preliminary analysis of the
term “standing” by reference to four important cases
litigated
before the Supreme Court of the United States during the past
decade: Association of Data Processing Service Organizations, Inc.
v. Camp;” Barlow v. Collins;s Sierra Club v. Morton; and Gilmore
v. State of Utah.’ From these decisions Vining develops several
tentative hypotheses, the underpinnings and implications of which
are then traced out in the book’s remaining chapters. These hypo-
theses are set out by the author as follows:
(1) “What we are witnesi ng is nothing less than the breakdown of
individualism as a basis for legal reasoning”;”
(2) “We achieve our ends, which we cherish as individuals, and we
realize ourselves precisely because -individuals are not legal
persons”;’ 2
(3) “The judge personifies himself in giving content to the doctrine
of standing. Standing defines his jurisdiction, his role, who he
is when he acts as a judge”; 13
(4) “A judge must have a person to hear, for the same reason that
anyone –
including the reader – must conceive a person to
hear or to address. … [T]he judge cannot fail to hear those
6P. 7.
7397 U.S. 150 (1970).
8397 U.S. 159 (1970).
9405 U.S. 727 (1972).
10.429 U.S. 1012 (1976).
1″P. 2.
12 Ibid.
13 Ibid.
19791
BOOK REVIEWS – LIVRES NOUVEAUX
whom he does understand; that he does understand them and
why they are before him is justification for his entry into the
flow of events”; 14
(5) “To ask who these legal persons are and what their relation-
ship is to individual human beings, we must in the end inquire
into the purpose of government, the meaning of equality before
the law, and the relevance of the results of decisions to judg-
ments of their rightness”;15
(6) “In future histories of our era administrative law may in fact
be cited as the development that eliminated finality from the
principles of social order, a quality many had assumed essen-
tial to the very notion of order”.’
At first glance these propositions are startling, for they seem to
challenge several fundamental assumptions shared by both public
and private lawyers. Yet the author’s development of his theses is
genuine, sophisticated and persuasive. Consequently, upon finishing
the book, one wonders if their conscious articulation and demon-
stration may be a signal that public law has indeed come of age.
The monograph itself is divided into three Parts: Change in the
Axioms of Legal Analysis; Residues of Conceptual Change; and
Legal Identity. In Part I, Vining sets the non-constitutional law of
standing in its historical context: a -limitation on the role of the
courts in the process of government. He argues that the traditional
“legal interest” test was derived from basic assumptions about
property, legal remedies and the existence of a unitary common
in short, assumptions about the “private-dispute settling”
law –
function of courts. Yet by the late 1960’s the pressures on this test
of standing became so intense that it collapsed, to be replaced by a
test emphasizing harm and the fact that the interest sought to be
protected is arguably within the zone of interests regulated by the
statute.7 In Vining’s opinion, this reformulation of the criterion for
standing represented an axiomatic shift in judicial self-awareness.
It evidenced a realization that the legal system was indeed a system
in the social scientific sense of .the term. Whereas the common law
had always distinguished between failures to act (omissions) and
acts themselves (commissions) from a systematic perspective, a
governmental failure to penalize a competitor (an omission by an
14 P. 6.
15 Ibid.
16P. 9.
17 This is the new test for standing articulated by the U.S. Supreme Court
in the Data Processing case, supra, note 7.
McGILL LAW JOURNAL
[Vol. 25
agency) is equally as significant as the visiting of a sanction by an
agency upon an individual himself (a commission). This reformula-
tion also afforded legal recognition to non-economic social values.
Whereas the common -law apparently eschewed these values (a con-
cern .with ends) and attended only to the protection of property
(the means by which individuals achieved their ends), the new
test involved the courts in evaluating ends for their own sake, and
not just as a by-product of their concern for the protection of means.
Ultimately, this reformulation leads to the acknowledgement that
both public and private law must be concerned with ends and
values, and that most of these values are shared, rather than private.
In other words, -abandoning the property-based “legal interest” test
embarks courts on a journey that can only end with the recognition
that the positing of an “individual” titulary of legal claims is not
a starting point or threshold question of judicial jurisdiction, but
rather a consequence of an analysis which commences by evaluating
the public values to be protected by such positing.
The author then carefully traces how this axiomatic shift oc-
curred, illuminating the interaction of the theoretical and the prag-
matic in legal evolution. In a brilliant chapter he suggests that the
role of the courts as a device for institutionalizing public values now
overtly transcends (as it has always covertly transcended)
its
“private-dispute settling” role. This emerging view reveals that the
judicial function is an integral part of the planning and value
selecting role of government. Of course, this means that it is
absolutely crucial to identify when and at whose behest the judiciary
may -act. Vining argues that human beings are much like institu-
tions, such as corporations, in that they are capable of shifting
through a number of distinct identities each day. Hence, the
perception by a court of a person harmed depends upon its re-
cognizing a public value that defines the class of person which an
individual before it embodies and seeks to personify. On this
analysis, in order to successfully perform its function the court
needs to know that the proponent of a value (the object of harm)
can demonstrate his personification of values already public, or
on the verge of becoming public. The law of standing thus serves
as the regulator of the legitimacy of non-legislated public purposes
and goals; the court is transformed into the agency which accords
recognition to competing values, which then compete for primacy
as society evolves.
Nevertheless, all the implications of abandoning the “legal in-
terest” test -for standing are not immediately apparent, and many
have not yet been acknowledged and comprehensively traced out in
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
the legal system. In Part II, the author -discusses several incidents
of the former law of standing as possible determinants of status
under the new test. First, Vining argues that one cannot define
either the judicial role or those entitled to invoke it by distinguish-
ing the directly from the indirectly regulated, or in other words, by
reserving judicial jurisdiction exclusively to those who can de-
monstrate direct agency -interference with their rights. Abandon the
“legal interest” test and harm can be demonstrated by both those
whose property is directly affected (for example, by expropriation)
and those whose property is indirectly affected (for example, by
the non-expropriation of a neighbour). Moreover, many temporizing
doctrines such as mootness or ripeness (the postponement of review
until a lis inter partes develops) become redundant. Finally, de-
termining standing questions on the basis of whether an individual
is potentially exposed to sanction through direct enforcement also
provides no -solution; the impact of a governmental act does not
depend on how it is enforced and it is a simple matter for an
agency to restructure its processes so that it only effects its policy
through collateral proceedings. A second traditional underpinning
of judicial jurisdiction, the concept of property, also fails as a
guide to when standing should be granted. In a very difficult
chapter, Vining shows that the concept of property works in private
law because it functions as a moral limitation on restructuring the
past. The transfer of property through awards of “damages” pre-
supposes an atomic view of causation; property and the concept of
causation thus serve to guide a court in deciding how much of the
past it can change by a present reallocation of economic benefit.
In public law, however, one is not interested in redressing the past;
judicial determinations of illegality operate prospectively, and con-
sequently concepts of causation and property are irrelevant to de-
terminations of whom the court may hear or help. That is,
[c]oncerns about protection of property arise when the court is engaged,
not in vacating decisions and letting the world go on, lead where it will,
but in unravelling the past; not in mediating history, but in creating it.18
If then, the above notions cannot provide a key to when a court
should recognize the standing of a litigant, might one nevertheless
found a distinction for standing purposes between those who -are
special beneficiaries of the administrative system (that is, those
individuals who the statute in issue seems designed to protect), and
those who are not? Vining concludes that the search for a special
beneficiary represents an atavism in the law which is tied to the
is p. 100.
McGILL LAW JOURNAL
(Vol. 25
“private-dispute settling” function concept. He notes that every
specific modern legislative initiative is complex, and directed to
achieving many distinct policies. Only if the law is seen as pre-
existing and static (which public law patently is not) and if statutes
exist merely to correct some predetermined “mischief” can canons
of statutory interpretation pretend to isolate special beneficiaries.
Moreover, the concept of a “beneficiary” displays logical difficul-
ties when advanced as a criterion of standing. Even when defini-
tional limitations such as ius tertii are involved, it is difficult to dis-
tinguish beneficiaries since these limitations ultimately do not
prevent a given individual from putting his case to the court. They
merely lead him to search for a personality which fits the court’s
preconception of whom the statute specially benefits –
to disin-
genuously show an identity which is non-factual and artificially
tied to a non-existent claim about a pretended common law right.
If a “special beneficiary” test is adopted, standing becomes nothing
more than a question of feigning the appropriate legal personality.
If standing is refused, the reason simply will be a failure to assume
the correct legal “identity”. Since identity is here tied only to a gene-
ralization of objective criteria, the special beneficiary test is clearly
duplicitous. Vining argues that the legal system can overcome this
problem of feigned personalities only if it recognizes that identity
is generated in the light of shared public values –
a premise
antithetical to the assumptions of our individualistic common law.
He also suggests that this potential duplicity explains why motive
assumes an important role in public law litigation. With the acknow-
ledgement that public law is a process of experimentation and
adjustment that is prospective and does not involve a need for
finality of decision, the myth of rights deriving from a pre-existing
discovered law vanishes and the underlying motivation for every
legal challenge becomes a crucial issue. Standing decisions determine
who may use the legal process for what public purposes; they must
be made in the light of a thorough investigation of all social values,
including those personified by the individual seeking standing. The
problem of feigned personalities hence becomes a problem of
belief –
if the court concludes that a litigant genuinely believes
in his asserted identity, it may then proceed to evaluate the public
purposes being pursued.
Part III of the monograph reveals to their full extent the juris-
prudential implications of Vining’s scholarship. If the most mean-
ingful test of standing must ber articulated metaphorically as “do
you believe?”, then who you are and what you personify become
the focus of Jegal thought. However, before embarking on this
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
theme the author considers one final possible common-law criterion
that of foreseeability and remoteness of effect. He notes that
–
these concepts are meaningful in private law, where limitations on
illegality and limitations on remedy merge, where rights are private
and where each case is -discrete. But the prospective nature of re-
medies in administrative law undermines the appeal to a notion of
“I didn’t realize it would affect you” as a criterion for determining
who may and who may not complain. In public law, it is not im-
portant that an agency was unable to foresee that a certain person
would be harmed by its act, for no retrospective sanction, such as
damages, is being imposed. By the fact of complaint, the agency
now sees that individual who is harmed, and is in a position to
modify its illegal act for -the future. With this last touchstone of the
common law destroyed, the court is left to make determinations
of standing only on the basis of the identity of the person appearing
before it.
Vining believes that the law of standing is a microcosm of the
larger question of how the law creates legal persons. He suggests
that persons do not come before the court “ready-made”; rather,
a court must decide in what persona a litigant acts, and determine
which identity is being pursued. Because each individual consists
of several competing identities, the author reformulates the “private-
dispute settling” role of courts in psychoanalytic terms: standing
decisions engage the court in resolving identity conflicts within
each of us. What is more, each individual can have no primary
identity, for neither occupation nor a general sense of ones full-
time preoccupation nor objective characteristics such as sex, race
or age provide a criterion for establishing a unitary link between
an individual and his identity. In the author’s view, all human
beings are unique precisely because we each have no primary
identity, but rather are a distinct mix of several identities. Because
these identities (which represent values) are mixed within us, it
follows that the process of government does not consist of catering
to individuals, but rather of developing institutions for discovering,
articulating, abandoning, accommodating or repressing our various
identities. From-this perspective, distinctions between institutional
and non-institutional persons, or economic and non-economic per-
sons, fade, as we recognize the equality of all persons; each identity
and each value it embodies has an equal claim to recognition by
the law. Vining concludes that “[p]ersons are indeed equal before
the law, although individuals as such manifestly are not”. 9
19 p. 168.
McGILL LAW JOURNAL
[Vol. 25
What then is the function of jurisdictional litigation in public
law and how do concerns about standing influence this function?
Certairy one accepts the goal of maintaining the legality of deci-
sions, but courts also have been always concerned with justice.
In jurisdictional litigation this latter concern is reflected by the
reformulated law of standing. Recognizing the independent force of
public values implies recognizing the identities articulating them.
Defining who may challenge official illegality (that is, what values
legitimately may claim recognition) becomes the principal judicial
mechanism for integrating public values and legislative mandates.
Assuming jurisdiction, even where the merits of an .act are un-
assailable, is thus the judicial device for recognizing and protecting
an emergent public value. On this analysis, the failure to assume
jurisdiction reflects the fact that the value by which a given harm
is determined is still inchoate, for the identity it represents has not
yet achieved the status of ,legal person in that context. Similarly,
statements about causation can be seen as paraphrases of decisions
respecting identity: when a court concludes that an act did not
cause an alleged harm, it is in effect saying that it does not un-
derstand how that particular person could be harmed in the way
asserted. The judge cannot understand the personification or identity
claimed: the value it embodies is simply not recognizable. From this
conception of jurisdictional litigation, in which questions of justice
are subsumed in decisions about standing and identity, Vining de-
rives his final thesis: the fundamental unity of public and private
law. This is sustained not through a belief that public law is really
a branch of private law, but rather through his view that private
law is an aspect of public law. For example, when we make indivi-
dual decisions, such as to discipline a child, we must assume a role-
identity as a parent, a jurisdiction to act (as bounded by the law
of torts and the criminal -law), and a framework of decision by
means of which relevant and irrelevant factors are evaluated. These
are exactly the processes by which administrative agencies act; each
of us performs as such an agency whenever we act. Even in the
mundane world of common !law actions, questions of standing,
merits and remedy must be dissociated. The underlying issue is not
“whether the plaintiff or defendant ‘has’ a right, but rather whether
the challenged action is authorized by law”.20 What ultimately is at
stake in any decision, be it that of a Labour Relations Board or
that of a parent, is not the result, but rather the decisional process.
20 p. 180.
19791
BOOK REVIEWS – LIVRES NOUVEAUX
Legality is measured solely by the values (identities) that the de-
cision-maker did or did not canvass.
As the above prdcis of its major themes and theses clearly de-
monstrates, Legal Identity is a powerful work in the philosophy of
law. Although focussed on the rather narrow question of the non-
constitutional law of standing in -the United States, and hence likely
to be -technically difficult for many readers, its larger themes are
of universal interest. In many respects it is a profoundly disturbing
book, the implications of which are devastating for much traditional
learning. What we teach, what we learn, what we believe law to be,
why we act, how we live, who we are: each are topics open to re-
consideration in light of Vining’s analysis, topics which the thought-
ful reader cannot avoid investigating as he works his way through
this book both demands and
the many
merits. In pondering where such inquiries will lead and what con-
clusions they may ultimately produce, one can find no better
guidance than the author’s concluding thoughts:
re-readings which
Law is symbol as well as system. Its development can be seen in a
single word … locus standi … . Law need no longer symbolize what it
has in the past…. “Person”, “property”, and “cause” are basic elements
of the structure of legal thinking…. As they have changed, and as the
problems they present have been addressed by thousands of lawyers and
judges, arguing and puzzling day after day, decade after decade, the
vision and the thrust of law have changed. Litigation can now bring
home as forcefully as any religious ritual that each of us is in fact
involved in mankind. Public law has come of age.21
R. A. Macdonald*
2 ‘Ibid. One cannot help but notice the strongly existentialist flavour of
these concluding remarks. For a close parallel, which more directly addresses
many themes tangentially considered by Vining and which also finds its
subject matter in public law, see Bishin & Stone, supra, note 4. This book
can be read profitably in conjunction with Legal Identity.
* Of the Faculty of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 25
Legislative Drafting. A New Approach. By Sir William Dale. London:
Butterworths, 1977. Pp. xix, 341.
It is hard for an American to evaluate a book that criticizes the
drafting of statutes in the United Kingdom on the basis of “the
continental system” as exemplified by France, Germany, and Sweden.
Being unfamiliar with the latter and only generally familiar with
the former, I can only comment on the author’s analysis and re-
commendations in the light of American experience.
Legislative tradition being what it is, the title of the book gives
little hint that the author is focusing on much-neglected aspects
of legislative drafting, such as the allocation of drafting functions,
the deployment of personnel, and the procedures that interlink them,
while giving minimal attention to the materials usually found in
books on “legislative drafting”. Persons interested in the specifies of
what a legislative draftsman should put into a statute must look
elsewhere. Since almost two-thirds of the book is devoted to ex-
tended statutory quotations and much of the material in the re-
mainder is of only marginal relevance, Sir William has little op-
portunity for more than sweeping generalization. However, some
of his generalizations are well worth pondering. The legal pro-
fession is indebted to him for delving into an aspect of legislative
drafting that is known to few and only rarely written about’: the
organizational and procedural context in which legislative drafting
takes place.
Sir William’s main complaint against English statutes is that
they are hard to read and understand. To provide examples, he
quotes extensively from copyright laws, family laws, labour laws,
limitation of actions laws, and several other kinds. Unfortunately,
the typical reader, like this reviewer, is unlikely to rise to the
challenge of verifying their total usefulness, because Sir William
has burdened him with excessively protracted examples. (I would
have preferred fuller drafting principle and more persuasive re-
commendations.) Even so, the reader seems justified in concluding
that the persons who put together statutes in the United Kingdom
and elsewhere would do well to emulate some of the practices
typical of France, Germany, and Sweden.
‘E.g., Dickerson (ed.), Professionalizing Legislative Drafting – The Federal
Experience (1973).
19793
BOOK REVIEWS – LIVRES NOUVEAUX
Sir William is at his best when tracking down deficiencies in
English statutes, the most important of which seem to be the
following:
(1) a general lack of clarity;
(2)
(3)
(4)
(5)
(6)
the failure to disclose at the beginning of a statute its basic
thrust;
the needless introduction of qualifications and conditions
before a general rule is stated;
the inclusion of unnecessary words and other extraneous
matter;
excessively long and involved sections;
too many definitions and too much reliance on them or on
“interpretation” clauses;
too many provisos;
too many and too much reliance on schedules;
unnecessarily convoluted or otherwise bad arrangement;
too much incorporation by reference; and
too much cross-referencing.
(7)
(8)
(9) unnecessary repetition;
(10)
(11)
(12)
In his opinion, the United Kingdom’s trouble is largely attributable
to “a system under which the drafting is entrusted to specialist tech-
nicians”, which tends “to produce texts of growing legal technicality,
complexity, and length”. This calls for a “change of style”Y The
continental style of codification is a good way to accomplish this,
because it helps to extricate statutes from “the matrix of the
common law”,4 thus making way for a more felicitous style and
a more accessible arrangement. 5 “A more profound change is also
desirable: a determination to seek the principle, to express it, and
to follow up with such detail, illuminating and not obscuring the
principle, as the circumstances require.””
If Sir William’s evaluation of English statutes is correct (and
from the evidence he has assembled I have no cause to deny it),
much of what he says makes good sense. At least, it fits with what
Professor Mellinkoff and others have concluded about legal gobble-
dygook: that most of it is an unnecessary -hangover from times (1)
2p. 333.
3Ibid.
4 p. 335.
5 It is not clear whether Sir William advocates not only immediate adoption
of the codification style but also ultimate adoption of a general codification
program: see, e. g., p. 335.
G Ibid.
McGILL LAW JOURNAL
[Vol. 25
when Old English or Middle English was being enriched to meet
legal needs by words or phrases from Norman French, Old Norse,
Celtic, or Latin, many of which persist today only in the language
of the law while having usable plain-English counterparts,7
(2)
when draftsmen pitted their wits against unfriendly, precedent-
oriented judges who viewed statutes as unseemly encroachments
on the common law,” or (3) when the language of litigated instru-
ments was thought to be judicially sanctified. Certainly, the eman-
cipation of statutes from these still lingering judicial prejudices
should be aggressively sought. Another cause of legislative obscurity
may be serious inbreeding in an office that, having a monopoly on
legislative drafting, has failed to maintain a sensitive editorial
point of view.
Sir William also points out that there is more to clarity than
a readable style; there is sound arrangement. It is in this respect
that English statutes seem the most deficient. First, it is hard to
find and understand core statements of what English statutes are
requiring. Such statements, of course, belong at or near the be-
ginning. They should also be sufficiently self-contained that the
reasonably knowledgeable reader can get their gist without turning
to another statute or even to another part of the same statute.
Nevertheless, English statutes, being the product of highy skilled
lawyers, have a high -level of logical coherence.
Sir William’s laudable skill at uncovering “the mischief” is not
fu.ly matched by his skill in tracing efficient causes. Of course, he
is on solid ground in attributing much of bad legal style to the
common law matrix within which English statutes still exist, and to a
devotion to its conceptual structure and traditional terminology.
These matters, he thinks, can be cured by switching to codification,
or at least to its style.
Sir William finds the English lawmaking process defective in
that “there is no examination or revision by a central body of
experts, and there is no scrutiny by working committees of Parlia-
ment”;9 that is, the process lacks the “revising stage” provided in
France, Germany, and Sweden. He prefers the continental system,
in which the initial drafting is done by persons who are fully
knowledgeable in substantive policy without necessarily having the
7 Mellinkoff, The Language of the Law (1963), chs. 2 and 3.
8 Conard, New Ways to Write Laws (1947) 56 Yale LJ. 458. See also Dickerson,
The Fundamentals of Legal Drafting (1965), 32.
9 P. 335.
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
tends
to legislative drafting. This
expertise peculiar
to avoid
“legalese” and produce clarity. How the latter is achieved he does
not explain. Presumably, the general run of lawyer or policy expert
in those continental countries is highly literate and, if untainted by
legislative drafting expertise, tends to write clearly. The approach
has certainly not worked in the United States, where writing inade-
quacies lurk even in high places and where the traditional approach
of lawyers (and laymen trying to write as lawyers) is to emulate
the most turgid products of the past.
Sir William accordingly recommends a three-phase system: (1)
initial drafting by persons other than drafting specialists; (2) revi-
sion by an Advisory Law Council, independent of government, con-
sisting of. judges, practitioners, a professor of law, professors of
literature, members of consumer councils, representatives of local
bodies or authorities, and a rapporteur, in consultation with minis-
ters and civil servants, followed by revision by parliamentary com-
mittees; and (3) debate and passage by Parliament.
At this point, I lose touch. The critical step for Sir William is
the second (revisionary) phase, during which the ideal of clear
drafting, launched during the first phase, would be consummated.
Somehow during this second phase, the special legislative drafting
skills needed for adequate legislation but withheld during the first
phase would be supplied. How? “The Law Council should possess
sufficient expertise, and authority, and be sufficiently catholic in
its composition, to command attention, respect and confidence.”‘
Here, Sir William begs the question by taking, for granted the
existence, ready availability, and particular contributions of persons
whose technical expertise is needed for adequate legislation. What
is this expertise, who has it, and when and how is it to be intro-
duced? General olarity is introduced in the first phase by persons
freed of the common law tradition. But is this all? Beyond it, I find
only a vacuum.
On the one hand, Sir William concedes that legislative “experts
of … high but specialised skills [that is, trained draftsmen]” can
produce “a general consistency of method and style”,” and that
they have “unique command of the needed skills”.2 In other words,
these legislative experts, who are to be omitted during the first
phase, can do something that is needed for adequate legislation, and
10 P. 336.
11 P. 337.
12 P. 338 [emphasis added].
McGILL LAW JOURNAL
(Vol. 25
only they can do it. I fail to see how a Law Council constituted as
Sir William would constitute it would or could provide the necessary
ingredient. Of course, it is possible that I have underestimated the
rank and file of English judges, practitioners, professors, and re-
presentatives. In the United States, such groups have amply exhibit-
ed their drafting inadequacies.
On the other hand, Sir William says that maybe the English do
not need specialized draftsmen after all. They can return the res-
ponsibility for legislative drafting to the ministries “so long as
there is a Law Council to maintain consistency and the required
standards”. 3 What specific standards are these?
But if drafting “experts of this kind, of high but specialised
skills, scientists in their field, tend like most scientists to develop
an esoteric language and method, understood by the initiated, but
obscure to the many”,14 what assurance is there that drafting in the
ministries will not fall into the hands of non-legislative scientific
specialists who will inject their own brands of technical jargon?
What Sir William calls a “new” approach has been common practice
in Washington for many years and, in its American environment, it
has been a dismal failure. Perhaps he should rest his case on his
initial explanation, because the obfuscation process is more closely
linked to unwholesome aspects of the common law matrix (or
possible administrative inbreeding) than to dangers inherent in
specialization.
I remain skeptical of the efficacy of the proposed Law Council
for achieving the desired clarity. Although important legislation in
Washington is normally reviewed in a series of rigorous examina-
tions made from many points of view, these examinations remain
almost wholly substantive. Indeed, there is nothing in the present
Congressional system to guarantee that an important piece of le-
gislation is drafted, reviewed, or even seen by a-person with drafting
expertise.
For me, Sir William’s complaints come down to this: despite
his professed admiration for its personnel and contributions to
logical coherence, he does not like the way the Parliamentary
Counsel’s office has been drafting statutes. Even assuming that his
dissatisfaction is well founded, I see nothing relating to clarity in
the English system (which has much to commend it) that could
not be as fully cured by reforming the office’s editorial attitude with
13 Ibid.
14 Pp. 337-38.
19791
BOOK REVIEWS – LIVRES NOUVEAUX
particiflar regard to arrangement, cross-referencing, referential
amendment, and some matters of style, without undertaking a com-
prehensive codification program or transferring basic lawmaking
functions to other agencies.
In the modern world, legislative drafting specialists are in-
dispensable. Indeed, I surmise that a more thorough investigation
would show that even the “continentals”, in addition to being un-
tainted by the common law, either have attained a higher degree
of literacy or have somehow tucked away in the various ministries
specialists in the drafting of legal instruments who have not been
officially recognized as such. On the other hand, Sweden’s statutes,
in their perpetuation of the false imperative, undesignated para-
graphing, inconsistencies of expression, and unnecessary words,
suggest that there is room for an even higher level of professionalism.
In any event, continental statutes such as these should be evaluated
also on the basis of other considerations than readability.
For one with an American background, it is hard to believe that
any significant number of effective reviewers could be judges. Again,
I may be underestimating the quality of legal talent on the con-
tinent or in the United Kingdom. Even so, it would be risky to im-
port an apparently successful foreign program without ascertain-
ing whether the quality of personnel needed for success can be
assumed to exist in the new environment. It certainly does not exist
in the United States.
The legal professions of both countries would benefit greatly
from a heavy dose of formal instruction in legal drafting. The gap
is not filled by Sir William’s bland assumption that all it takes to
make a good draftsman is the general ability to write clearly and
knowledge of “the facts and the law on the subject”.15 That such a
is con-
person “can pick up legislative drafting without difficulty””‘
tradicted at least by American experience, which supports a mini-
mum training period of several years. What Sir William seems to
overlook is that many legislative drafting problems transcend style
and readability and even’knowledge of the substantive law and the
facts.
It is also possible that sending bills to parliamentary coniit-
tees before (instead of after) initial consideration by the House of
Commons would make possible fuller review before the bills legis-
latively congeal.
15 P. 339.
1 Ibid.
McGILL LAW JOURNAL
[Vol. 25
Sir William is careful not to identify the “continental system”
with the avoidance of legislative detail, inasmuch as detail is com-
mon in at least the German brand of code. Accordingly, he does not
recommend that the English necessarily eschew it. On the other
hand, some critics of English legislation have viewed this as a
feasible alternative, lured by the undeniable fact that a com-
plicated statute is harder to read than a less complicated one.
When testifying before the Renton Committee, I was asked if I
favored the “contiental” system of sticking to generalities. I said
that the matter is normally beyond the control of the draftsman
and that, in the United States at least, the outcome is determined
in each case, not by broad political theory, but by how far the
legislature is willing in the particular circumstances to trust the
judgment and good faith of the administrator or the courts. Un-
fortunately, in the United States this trust is highly tentative. Even
acts that begin their lives as broad mandates tend to become deeply
scarred or heavily cluttered with detailed amendments. The main
road to clearer statutes probably hes elsewhere.
Sir William’s comments on statutory interpretation seem to
overstate the legislative draftsman’s appropriate concern with that
area, much of which deals with the pathology of badly drafted
statutes and is therefore irrelevant to drafting principles whose
application obviates the need for curative interpretation. Also, I
doubt that a “change in the style of statutory drafting is likely to
require an overhaul of accepted rules of interpretation”,” even
assuming that “style” includes the avoidance of detail. His assertion
seems valid only so far as “statutory interpretation” is stretched
beyond the courts’ cognitive function to include delegated legisla-
tion by them. But supplementation
is hardly explication; even
though avoidance of legislative detail normally entails judicial (or
administrative) supplementation, Sir William’s statement remains
misleading. So far as interpretative principles relate to cognition,
the draftsman’s interest is confined largely to areas in which the
courts have been unfriendly under the doctrine of “strict construc-
tion”.18
His analysis also suggests that the only effective escape from
English judges’ alleged literalism in the interpretation of statutes
is to adopt, in each case, ” ‘a construction which would promote the
17 p. 292.
18 See Dickerson, The Interpretation and Application of Statutes (1975), 8
and 205-12.
1979]
BOOK REVIEWS – LIVRES NOUVEAUX
general legislative purpose’ “,9 coupled with compliance with Lord
Scarman’s recent plea that the “judge must be given a much
wider discretion than he has now in the choice of evidence from
which to infer the intention of Parliament”,2 which in Sir Wiliam’s
view includes resort to “Parliamentary material”. Such a choice
overlooks a third alternative: taking account of the tempering that
language normally receives at the hands of external context.21 Iro-
nically, resort to parliamentary material, which hardly qualifies as
context,22 tends to undermine the draftman’s incentive to better
drafting. Why strain for perfection in a legal instrument that the
court will subordinate to the largely uncontrdlled material of le-
gislative history?
Despite these reservations, Sir Willian has performed a valuable
service in drawing attention to the fact that we need to know not
only what a good statute should look like but what organizational
devices and procedures are best fitted for producing -it. May his
book inspire further investigations in this neglected area.
Reed Dickerson*
‘9 P. 339. Dale is apparently quoting from the U.K. Law Commission, The
Interpretation of Statutes (1969), but he gives no page reference.
20 P. 340.
2 1 Supra, note 18, ch. 9.
2 Ibid., 138-62.
* Professor of Law, Indiana University (Bloomington).
McGILL LAW JOURNAL
(Vol. 25
Criminal Procedure in Practice: A Manual For The Defence Of Cases In
Provincial Court. By P.G. Barton & NA. Peel. Toronto: Butterworths, 1979.
Pp. xxvii, 324.
Peter Barton, a University of Western Ontario law professor, and
Norman Peel, a London, Ontario practitioner, have joined to pro-
duce a useful little book about criminal practice at the provincial
court level. Experienced criminal practitioners and legal academics
are unlikely to find the book of much interest for the simple reason
that-it is not written for them. It is instead addressed to novices in
the practice of criminal law, and to those “dabblers” who sporad-
ically buft in increasing numbers grace our criminal courts. The
authors clearly spell out the goals and limits of the work. It is
defence-oriented, blatantly and unapologetically practical, and
deals exclusively with practice at the provincial court level. None-
theless, it should have a wide readership due to the increasing
number of young practitioners who are relying on legal aid certi-
ficates in criminal matters to pay the rent. This manual was in
part written for them and it must be evaluated in light of their
needs.
The manual begins with a distillation of much of the accepted
wisdom as to how to deal with a client charged with a criminal
offence. The authors discuss the ever-present ethical problems and
make some suggestions on how to handle them. Further chapters
deal with the required preparation and planning for the case and
in particular, preparation for trial. There is a very practical final
chapter -iich outlines a typical office system for a criminal practice
and which is supplemented by a good collection of forms in the
first appendix.
The remaining two chapters of this manual attempt, rather
successfully, to compress the law of criminal procedure into ap-
proximately one hundred and seventy pages.
The manual does have a few shortcomings which should not
be overlooked. A minor one is the inconsistency of style between
some of the chapters. Some inconsistency is no doubt unavoidable
in any work which has been co-authored; however, the contrast in
the treatment of certain topics is perhaps greater than the topics
themselves would warrant.
More serious is the lack of any bibliography. Such a bibliography,
whether found in an appendix or, better yet, at the end of each topic,
would have been extremely valuable for the busy praotitioner with
19791
BOOK REVIEWS – LIVRES NOUVEAUX
little time to leisurely thumb through issues of periodicals, special
lectures or texts looking for a more extensive discussion of points
touched upon in ‘the manual. Such a bibliography would as well
have avoided the very real danger that attends all manuals of this
sort, namely, that they come to be regarded as the definitive work,
rather than as a practical but minimal distillation of a much wider
body of information.
All in all, the manual is a welcome addition to the ever growing
literature in the area of Canadian criminal law. Given its stated
objectives and its intended audience, the manual is quite successful.
Although it does not address either provincial court judges or
crown attorneys, it should nevertheless be read by both for it estab-
lishes what a minimal level of knowledge and competence is for
those lawyers intending to set foot in a criminal court. What Barton
and Peel have done with their manual is to ensure that a “dabbler”
in criminal practice no longer need be a bumbler as wall.
Vincent M. Del Buono*
* Assistant Professor, Faculty of Law, McGill University.
McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 25
Montreal
1980
No. 3
SPECIAL ISSUE ON
THE KRAVITZ DECISIONj
f NUMIERO SPECIAL SUR
L’ARRfT KRAVITZ
Preface
Prdface
The decision of the Supreme
Court of Canada in General Mo-
tors v. Kravitz is truly a cause
cdlabre, and the Editorial Board
of the McGill Law Journal hopes
that this Special Issue will en-
hance
the discussion of this
important case.
With the exceptions of Ms.
Connell-Thouez’s article and Me
LaPierre’s comment, all of the
papers in this issue were origi-
nally presented to the Colloque
de l’Association qu6b6coise pour
1’6tude comparative de droit,
which convened in September,
1979
the Kravitz
decision.
to discuss
The Editorial Board wishes
to express its sincere thanks to
Professor Pierre-Gabriel Jobin
for his patient and valuable
assistance in the preparation of
this issue.
Le jugement rendu par la
Cour supreme du Canada dans
l’affaire General Motors v.
Kravitz constitue, h n’en pas
douter, un arr6t marquant de
la jurisprudence des derni~res
ann6es. Aussi, le comit6 de r6-
daction de la Revue de droit de
McGill ne peut-il qu’esp6rer que
la publication de cette 6dition
sp6ciale contribuera h entrete-
nir le d6bat suscit6 par cette
d6cision d’importance.
A l’exception de l’artitle de
Mme Connell-Thouez et du com-
mentaire de Me LaPierre, les
6crits contenus dans le pr6sent
num6ro furent, h l’origine, pr6-
sent~s par leurs auteurs respec-
tifs lors du Colloque de l’Asso-
ciation qu6b6coise pour l’6tude
comparative du droit qui s’est
tenu en septembre 1979.
Le comit6 de redaction tient
hi exprimer ses sinc~res remer-
ciements au Professeur Pierre-
Gabriel Jobin, lequel a patiem-
ment et efficacement contribu6
h la preparation de cette publi-
cation.
