Parlementarisme, principes fondamentaux du droit public
The object of this paper is to inquire whether s. 4 of the Statute of Westminster, considered as an ordinary statutory provision, really constitutes a legally binding assurance that the Parliament of the United Kingdom may not pass laws for Canada without the latter's consent.
In its first part, the paper discusses the validity of such an Act intended for application in Canada, that would not contain the declaration contemplated in s. 4. This is examined in reference to the principle of Parliamentary sovereignty and to the question as to the capacity of Parliament to bind itself for the future. The conclusion reached is that, because Canadian courts could treat s. 4 as an entrenched clause binding upon the United Kingdom Parliament, such an Act could be ruled invalid.
The paper then discusses the case of a United Kingdom Act containing a declaration that Canada has requested and consented to such legislation, while in fact Canadian initiative or acquiescence would be lacking. The conclusion there is that s. 4, whether considered in isolation or together with the Preamble to the Statute, would not warrant a ruling of invalidity by Canadian courts. In particular, allegations of error or fraud in the passing of the Act would not make it invalid.
The general conclusion is therefore that s. 4 does not really constitute a legally binding assurance that the United Kingdom Parliament may not pass laws for Canada without the latter's consent.
While the legal issue discussed in this paper may seem academic, since the British Parliament was never, since 1931, attempted to pass laws intended for application in Canada without the latter's consent, it throws an interesting light on the foundations of Canadian sovereignty. The paper suggests that such sovereignty seems to be based at least as much on constitutional convention than on s. 4 of the Statute of Westminster.
Henri Brun and Guy Tremblay
This article is a summary of the law governing official languages in Canada. The paper also concentrates on present controversial issues raised by judicial pronouncements on the Official Languages Act and on section 133 of the B.N.A Act.
The first section studies the « constitutional » aspect of the question of official languages in Canada, as to whether the relevant provisions are considered to be entrenched or not. Special emphasis is placed on the scope and effect of section 133 as interpreted so far. Federal and provincial legislative powers with respect to languages are then discussed, as well as the inapplicability of section 93 of the B.N.A. Act. Finally, the main constitutional proposals relating to linguistic rights are outlined.
The next two sections deal with federal and provincial legislation and their judicial application. At the federal level, the Official Languages Act and its apparent weaknesses attract particular attention. At the provincial level, a survey is taken of Quebec's successive Acts respecting languages, and « Bill 101 » is especially considered in relation to the Charter of human rights and freedoms.
The conclusion is that the unsatisfactory state of the law of official languages in Canada may well drag on if general agreement is not reached on a renewed federation.
François Chevrette and Herbert Marx
An entrenched Bill of Rights, it is maintained, would be of benefit not only to individuals and groups but also to provincial governments generally, because the same standards would apply at the federal as well as the provincial level. Such a Bill should include certain effective protections lacking in the present Canadian Bill of Rights.
The protection of civil liberties by way of the division of powers has favoured the enhancement of federal power and has worked to the disadvantage of the provinces. What is proscribed at the provincial level is permitted at the federal level. In effect, although the provincial persecution and prosecution of Communists and Jehovah's Witnesses are well known, particularly because of their appearances before the courts, similar legislative and administrative policies on the part of the federal Government and Parliament have not surfaced as clearly in the Canadian constitutional process or history. This is also true as concerns the treatment of Asiatics.
The formulation of the safeguards to be included in a Bill of Rights raises the question as to their scope and application. The present Canadian Bill of Rights has given rise to the situation where the act of an official, such as a police officer, is not subject to the provisions of the Bill whereas the legislative enactment that authorizes the act is so subject. An efficient Bill of Rights would control such acts as well as laws.
Lastly, it is suggested that there is a general consensus in Canada as to the essential contents of a Bill of Rights. In dealing with emergency situations, the federal Government should have the burden of proving that an emergency exists and that restrictions imposed on specific civil liberties are required. At present the person contesting the invocation of the War Measures Act or other emergency legislation has the almost impossible task of proving that an emergency does not in fact exist.
The object of this paper is to consider the place which theory occupies within the framework of our parliamentary system. In particular, the purpose of this essay is to analyse the gap which exists between legal theories and facts.
While a knowledge of the past is a prerequisite to interpreting the present and estimating the future, it will only be possible in this paper to give a brief review of basic historical data ; it is an essay in law, not in legal history.
Students of constitutional law have long been only students of the cases in relation to federalism. Constitutional issues that trouble the conduct of our parliamentary system are not those with which constitutional lawyers are familiar. Issues surrounding the separation of powers are critical for the safeguard of civil liberties. It is time to consider what problems have been encountered and what plans for the future could be accepted or proposed for a better working of our parliamentary gouvernment.
Henri Brun and Guy Tremblay
This article expresses criticism about, and makes comparisons between, Quebec's new legislation on referenda and the federal bill (not yet adopted) on the same subject.
The authors' claim is that the most commonly heard comments about these legislative pieces seem to miss the most important target. The limitations and controls of referendum expenses, prescribed by the Quebec Act and loudly denounced by the opposition, on the whole seem preferable to the lightly hidden laxity of the federal bill. On the other hand, in both cases the general inadequacy of the means of control makes the referendum process a very powerful weapon in the hands of governments. These new pieces of legislation give much to the governments, little to the people.
Jacques Carl Morin
Evidence in the law of controverted elections is the subject of the present article. The author begins with some general observations. Firstly, according to section 52 of the provincial Controverted Elections Act, the rules of evidence are those of the law of England in force on the first of July 1867, or in other words, the common law of Parliament. These rules of evidence can hardly be of any assistance to our courts because at that time, disputed elections were tried by the House of Commons or its committees and decided in a thoroughly unjudicial manner. Secondly, the author describes briefly the grounds that may be alleged in an election petition, namely the ineligibility of the elected candidate, corrupt practices by the candidate and irregularities affecting the legality of the election.
In the first part, the author examines the burden of proof. In all cases the onus for establishing the material fact of the corrupt practices or the noncompliance with the rules contained in the Election Act rests upon the petitioner. If the corrupt practices alleged in the petition are substantiated, the court must set aside the election unless the respondent establishes that the action is of no gravity and could not have affected the result of the election.
On the other hand, an election will not be declared void by reason of transgressions of the law if the court is satisfied that it was conducted in accordance with the existing election law, and that the mistake or noncompliance did not affect the outcome of the election.
The second part discusses the method of establishing facts and proof of their possible effect on the result of the election. As to presumption, for instance, the author examines the solution adopted by the courts when the number of unqualified voters exceeds the majority of the elected candidate and finds that invalidation of such an election may not be always justified.
Finally, in the third part, the author analyses various clauses regarding the secrecy of the ballot. In federal law and in the law of the English-speaking provinces the privilege respecting the secrecy of the vote is judicially recognized and cannot be waived. In Quebec, a voter cannot be compelled to reveal for whom he has voted but he can be asked the question. In the United States, the privilege of non-disclosure belongs only to qualified voters, and the illegal voter can be compelled to disclose for whom he has voted.
Rules of evidence regarding controverted elections are not well adapted to our times ; furthermore some sections of the Election Act and the Controverted Elections Act are not understood by our courts. The legislator should modify these statutes and make their language more precise in order to achieve completely and successfully the electoral reform now in progress.
Fédéralisme, partage des compétences
Le concept d'union économique dans la Constitution canadienne : de l'intégration commerciale à l'intégration des facteurs de production
The object of this paper is to assess the constitutional position as to economic integration within Canada. Following a short review of'the basic elements of economic integration, it proceeds to analyse the law and practice relating to the free circulation of goods, and the free movement of persons, services and capital in Canada. Since such questions are usually associated with the concept of common market, a brief comparison is made on these various points with the practice of the European Economic Community.
As far as concerns the free circulation of goods, the study starts with the usual distinction between tariff and non-tariff barriers. If customs duties have long since disappeared between the provinces, the author finds that charges having an effect equivalent to customs duties are not totally precluded under Canadian constitutional law, and as a matter of fact are occasionally encountered in practice. The paper also shows that if non-tariff barriers to interprovincial trade are theoretically precluded under s. 91(2) of the B.N.A. Act, certain types of obstacles not only appear constitutionally acceptable, but also are largely used by governments in practice, such as preferential purchasing policies, subsidies, public enterprises, etc. In the end, when our constitutional rules pertaining to the free circulation of goods are compared with those in application within the European Economic Community, they appear less stringent, leaving greater room for intervention to the provinces.
The situation, as far as concerns the free movement of persons, services and capital is quite different. As the study finds, there are no clearly articulated principles relating to these questions in the Canadian constitution. However, due to the existence of a common nationality and a common currency, the most serious difficulties in this respect have been avoided. From that point of view, Canada has benefited from a clear advantage over the European Economic Community. Yet, regarding the free movement of persons and services, the paper shows that whereas no progress appears to have been made on that score within the last decade in Canada, the E.E.C. is pushing forward with plans calling for the common recognition of diplomas, etc. And regarding the free movement of capital, it appears that if the E.E.C has not progressed much since the first years of the Treaty of Rome, Canada for its part appears at the moment to be heading for a period of greater restriction on the movement of capital within the country.
In conclusion, the question is raised whether the material division of jurisdiction between the federal and provincial governments, as opposed to a functional division of jurisdiction as is to be found in the E.E.C, is not responsible for the centripetal kind of federalism that appears more and more in demand in Canada as far as concerns economic matters. Acting unilaterally on the basis of its exclusive powers, the federal government has adopted so-called common policies that appear to have met with a large measure of disapproval from the various provinces. But this is a different problem that requires a separate treatment.
The exclusivity rule, an essential ingredient of provincial autonomy, has been weakened by recent Supreme Court decisions such as Coughlin v. Ontario Highway Transport Board, R. v. Smith, Re Anti-Inflation Act, Re Farm Products Marketing Act, and Caloil v. A.G. of Canada.
Such an evolution can be dangerous for the people of Quebec because it might permit an invasion by the federal Parliament of Quebec's fields of exclusive jurisdiction. Until a new political agreement has been reached between Canada and Quebec, our Supreme Court should scrupulously adhere to the « watertight compartment » rule.
The notion of sovereignty is the most fundamental concept of public law. At the same time, it is one of the main difficulties federalism has to face. Where does sovereignty reside in a federal state ? While this question is not an easy one to answer, knowledge of the manner in which it has been answered in Canadian constitutional law is essential to an understanding of the present constitutional crisis.
The most appropriate definition of sovereignty is « jurisdiction to define jurisdictions ». This definition implies the concept of an ultimate authority and its application to a federal system is of great difficulty.
Two main theories confront each other. The first one develops the concept that sovereignty should be shared between the federal government and the federated states. The second sees sovereignty as belonging exclusively to the federal government, regional governments merely enjoying some form of autonomy.
This paper studies the implications of both theories in Canadian federalism.
Histoire du droit et des institutions
This survey of the historical origins of injunction in Quebec law aims at elucidating the source of some of the difficulties that have arisen lately in this much-debated field. In fact, the presence of injunction in Quebec procedural law results from specific circumstances.
The need for such a procedure came from the continuation of the old French law of civil procedure after the conquest of Canada by Britain. At that time, adequate proceedings for cases of urgency had not yet been devised and did not appear in the Ordonnance of 1667, which remained in force in Quebec up to 1867. From 1763, English influence became predominant, through legislation aimed at altering this corpus of French law to adapt it to the new judicature inspired by the English system. Nevertheless, in the absence of equity jurisdiction, no serious attempt to introduce injunction was made prior to the codification. Even the first Code of Civil Procedure of 1867 did not provide for injunctions, though their need became obvious.
In spite of urgings by commentators, and the existence of provisions in the Louisiana Code, the Legislature declined to adopt injunction. Courts then assumed authority to grant injunctions, either under their inherent powers or from a broad interpretation of mandamus. However, in Carter v. Breakey, Meredith C.J., for the Superior Court, after very detailed consideration of the issue, firmly opposed such endeavours as dangerous and unlawful, while urging the Legislature to make provision for the issuing of injunctions in appropriate cases. An Act was finally passed to this end in 1878.
This early provision cautiously restricted the use of injunctions to six types of cases. Subsequent developments, however, especially in the new codes of 1894 and 1966, considerably broadened its scope. Adapting an equitable remedy to the general scheme of Quebec procedural law was a difficult process, producing much uncertainty in the case-law. Further, in the absence of other guidance, courts tended to look to English and American sources, thus introducing into Quebec law some principles of equity.
The case of injunction in Quebec law therefore seems to illustrate the perils of receiving foreign legal institutions without adequate preparation.
The Co-existence of Legal Systems in Quebec: « Free and Common Socage » in Canada's « pays de droit civil »
John E. C. Brierley
Bien que le système français de tenure seigneuriale au Québec ait mérité une attention toute particulière des historiens, l'histoire de la tenure anglaise de « franc et commun socage », introduite en 1774 et qui règne même aujourd'hui dans la zone dite des Cantons de l'Est, n'est pas moins singulière. Est-ce que dans l'Acte de Québec, après avoir établi à l'article 8 l'ancien droit français, on a voulu introduire tout le système anglais du droit des biens lorsqu'on a mentionné, à son article 9, que la concession des terres pourrait se faire selon la tenure anglaise ? Ou au contraire a-t-on voulu tout simplement exclure lapplication des incidents de la tenure française en faisant appel à l'équivalent anglais d'une tenure libre ? L'Acte constitutionnel de 1971 n'a pas résolu cette question, confiant cependant à la législature locale le soin d'adapter la tenure anglaise dans sa « nature » et dans ses « conséquences » aux conditions locales.
Les autorités britanniques ont, semble-t-il, opté pour la première interprétation, puisqu'en 1825 une loi impériale édictait que le droit anglais des biens s’appliqueraient dans les cantons. La réaction locale, sous la forme de législation, en 1829, révèle l'équivoque ressentie par la population locale: après avoir validé pour le passé les transactions accomplies selon les formes françaises, la loi de 1829 établit pro futuro la validité des transactions immobilières selon les règles anglaises ou les formes françaises. Ce mélange de règles de fond et de forme anglaises et françaises — une véritable coexistence de systèmes juridiques sur un même territoire — semble avoir semé la confusion chez les justiciables et les hommes de loi durant les 25 années suivantes. Même dans le cas où la loi anglaise de 1825 a établi le droit anglais pour l'avenir, a-t-elle voulu déclarer aussi que le droit anglais existait dans le territoire québécois depuis 1774 ? Voilà une thèse qui pourrait se défendre d'après le sens grammatical de cette loi ainsi que celle de 1829.
On semblait indécis au Québec sur cette question avant les décisions célèbres des années 1850 dans les arrêts Stuart v. Bowman et Wilcox v. Ce dernier a décidé enfin que le droit anglais des biens n'a pas pu être introduit dans les cantons avant 1825 et que toute interprétation contraire frise l'absurdité. Le jugement du juge en chef Lafontaine, aussi acceptable qu'il soit sur le plan politique, ne semble pas toutefois s'accorder avec le sens littéral des lois en question. Mais enfin que pouvait-on faire ? Une loi de 1857 de l'Assemblée législative a finalement opté pour l'application de lois canadiennes dans tout le territoire québécois et cette solution, après l'abolition de la tenure française en 1854, semble avoir été acceptée par ces mêmes milieux qui, dans les années précédentes, ont été agités par la question. L'uniformité de notre droit commun ayant été établie sur le sol québécois, la perspective d'une codification à la française s'ouvrait et devint réalité, comme on le sait, quelques années plus tard.
In spite of apparent acceptance by the Imperial government of Durham's recommendation for accelerating the inevitable assimilation of the French culture into its Anglo-Saxon environment, French Canadians nevertheless enjoyed a fair amount of de facto self-government during the years which preceded Confederation. A proof of this is their ability to consolidate during that period the ecclesiastical establishment which was to constitute the core of their social structure for the next century and their success in putting the French language more or less on the same footing as the English language by the repeal of article XLI of the Union Act. Quebeckers were even successful in effecting the codification of their civil laws. All of this however required the active cooperation of the English members of the provincial legislature. A real measure of self-determination was attained by the French as a result of Confederation which gave each province including Quebec exclusive jurisdiction in certain matters. In theory, this new freedom was to be exercised within fairly narrow limits, in view of the federal power to disallow provincial statutes, of the extensive list of federal powers which had priority over a smaller list of provincial powers, and of the federal residual power, not to mention the « general » authority of the federal Parliament. As it turned out, the provinces and therefore Quebeckers enjoyed much more freedom than had been anticipated, as a result of the Privy Council's interpretation of the constitution, a development which to some extent was predictable. The increase in provincial freedom was also due to the political pressure exercised by the provinces themselves. Surprisingly enough, Quebec did not join the « provincial league » at an early hour, Ontario being at first the main defender of provincial autonomy. Quebec's espousal of the provincial cause had to await the removal from power of the Conservatives in the province. The Liberals who took over had voted against Confederation which they regarded as unduly centralized. This in itself would have made them an ally of Ontario. But there was more than that to it. The Quebec Liberals had opposed the 1867 federation from the start (and refused to participate in the 1864 coalition) because they considered that Quebec's freedom might become unduly restrained in a system where she would be faced with numerous partners or provinces, all Anglo-Saxon, instead of having to face an English majority limited to Ontario. It so happened that the Liberals came to power on a wave of profound and widespread dissatisfaction among the French, precisely because of a perceived restriction of their freedoms during the Riel crisis. Hence, the eager look of the people of Quebec towards their own capital as a source of protection against federal encroachment to what they regarded as their legitimate rights. This feeling was reinforced regularly for a period of fifty years as a result first of the Manitoba school question, then the Alberta and Saskatchewan school question, the Keewatin school problem and last but by no means least the Ontario school crisis which this time concerned French schools only. On top of that, came the 1917 conscription to which can be traced the origin of the « modern » separatist movement. During most of that time, the Liberals were in power (1897-1936) and it is no wonder that Quebec gradually became the ever present champion of provincial rights. When Duplessis defeated the Liberals, the trend was so well established that it transcended party lines. Later, the pressure exercised gradually by the separatist movement and the increasing desire of Quebeckers to have more freedom and be masters in their own house led to the Quiet Revolution whose leaders finally asked for a special status. If polls are any indication, it is towards this last approach that a majority of Quebeckers are looking to solve the constitutional question. On the other hand, the right of peoples to self-determination has acquired a wide measure of international recognition since Durham's report which is a far cry from Professor Brossard's recent « report » on the subject as it applies to Quebec, written under the aegis of the Centre de recherche en Droit public of the law faculty of the Université de Montréal. As things now stand, the next step in the determination of Quebec's right to self-government is in the hands of Quebeckers at the forthcoming referendum.
Mireille D. Castelli
Dower was a rather peculiar institution of the old French customary law that, according to some, still subsists in modern Quebec law.
At first blush, dower seems to be in complete opposition to the main thrust of old French law, whose primary- concern for the protection of lineage allowed hardly any right to be created in favour of spouses. Indeed, dower granted to the wife important rights, bearing on the husband's biens propres, i.e. property coming from his lineage or not included in the community and therefore normally entitled to the strictest protection. The wife's rights consisted in a usufruct on one-half of the husband's bien propres. Considering both the basis and the extent of those rights, therefore, dower appears as a most unusual provision in favour of the wife.
The advantages of dower were, however, more apparent than real. This comes out clearly when one examines the rights of children under the dower, as well as the manner in which the institution was transformed. Dower then appears as a mere reduction of the rights of full ownership previously vested in the wife. Such reduction favoured the children, who emerged as the main beneficiaries of dower. They were the owners of the property upon which bore the wife's usufruct. And their rights were safeguarded as against every other party, including their mother and father, as well as the latter's creditors.
The history of dower therefore illustrates the manner in which legal institutions may be transformed to suit changing ideas and mores.
The first general municipal institutions in Quebec were adopted by the Special Council in 1840 when Governor Sydenham found that the Act of Union did not make provision for them.
These institutions included local corporations — parishes and townships — and regional corporations — the districts. Parishes and townships had very few powers. Districts had limited powers on local matters. All municipal corporations had little autonomy and were under the strict control of the Governor. Nevertheless, their creation was bound to lead to more important and more autonomous municipal institutions.
French Canadians were opposed to these institutions, partly because they seemed to belong to the set of post-Rebellion measures such as the union of the two Canadas and the setting up of the Special Council, and partly because the new municipal corporations had the power to levy taxes. Their opposition succeeded in paralysing these institutions, which were replaced by new ones in 1845.
Edward G. Hudon
Cet article exprime le point de vue d'un juriste américain sur la tradition constitutionnelle du Canada. L'auteur y compare le développement de la tradition constitutionnelle au Canada et aux Etats-Unis. En particulier, il retrace les événements qui ont orienté cette évolution au Canada depuis 1760.
Pour un Américain, les problèmes constitutionnels que soulèvent au Canada la langue et l'éducation sont sans doute les plus intéressants et les plus difficiles à saisir. Selon l'auteur, il est impossible de comprendre l'état actuel de ces questions sans en connaître les racines historiques.
Le but poursuivi par l'A.A.N.B. de 1867, plus clairement encore que la constitution des Etats-Unis, était de lier fermement les unes aux autres des entités politiques jusque-là autonomes. L'auteur fait valoir que ce but a en fait été beaucoup plus largement atteint aux Etats-Unis qu'au Canada. En dépit des textes — l'alinéa introductif de l'art. 91 de l'A.A.N.B. et les 9e et 10e amendements à la constitution des Etats-Unis —, le fédéralisme américain est aujourd'hui beaucoup plus centralisé que le fédéralisme canadien.
L'auteur compare enfin les garanties des droits de l'homme dans les deux pays. Il constate que la Déclaration canadienne des droits n'est qu'une loi fédérale ordinaire, qui n'existe que depuis I960, alors qu'aux Etats-Unis le Bill of Rights fait partie de la constitution depuis 1791. Il observe cependant que l'existence du Bill of Rights n'a pas empêché certaines violations des droits de l'homme de se produire aux Etats-Unis aussi bien qu'au Canada avant l'adoption de la Déclaration canadienne des droits.
Rédaction et interprétation des lois
Ce texte est la transcription d'un exposé donné par le professeur Bonenfant le 26 septembre 1977, soit dix jours à peine avant son décès, à l'occasion d'un colloque international sur la rédaction législative. On peut donc le considérer comme son testament scientifique en ce qui concerne la légistique, discipline à laquelle il portait depuis plusieurs années un vif intérêt. Sa riche expérience des institutions parlementaires faisait de lui un observateur très écouté du récent renouvellement des techniques législatives au Québec.
Prononcé à partir de simples notes, cet exposé conserve, tel que nous le publions, tout le jaillissement et le mordant qui caractérisaient le discours de notre collègue. Ceux qui l'ont côtoyé y retrouveront la chaleur, l'enthousiasme et la profonde sagesse qu'il apportait à la vie de notre Faculté. C'est donc aussi pour son intérêt humain que nous tenions à faire figurer ce texte dans ce recueil d'hommages.
Il convient de remercier le Conseil de la langue française, organisateur de ce colloque, qui a assuré la transcription et la mise en forme de cette conférence, et nous a aimablement autorisés à le reproduire.
This paper is the transcript of an address delivered by the late Professor Bonenfant on the 26th September, 1977, barely ten days before his decease, at an international symposium on statutory drafting convened in Québec by the Conseil de la langue française.
Professor Bonenfant, whose long tenure as Librarian of the Québec Legislature made him closely acquainted with the subject, divided his remarks in three parts.
He first outlined the history of legislative drafting in Québec, showing the predominant role of English-language draftsmen until the 1930's, and the intellectual leadership assumed by Louis-Philippe Pigeon, now a member of the Supreme Court of Canada, in more recent days.
Then the speaker summarized the main difficulties now confronting legislative draftsmen wishing to improve the quality of legislation in French in Québec. He identified those as the pervading and long-standing influence of Anglo-Saxon models and forms, and the frequent lack of standard French equivalents for institutions borrowed from Anglo-Saxon legal systems.
Professor Bonenfant finally made a number of suggestions for further improvements in legislative style. He advocated less improvisation in lawmaking; constant monitoring to keep abreast of developments in the legislation of France; clarity, brevity and simplicity of wording; the consolidation of related and repetitive statutes, or at least their subjection to uniform model Acts; the suppression of superfluous verbiage; and sustained contacts and exchange with foreign jurisdictions experiencing similar problems.
Michel Sparer and Wallace Schwab
Is legal drafting to be considered an autonomous discipline or should it be relegated to a set of grammatical rules ? Or yet still, might it be elevated to a full-fledged area of legal studies ? The scope of the matter goes far beyond simple considerations of numbering paragraphs, punctuation, and uses of language. Interest for legal drafting in Québec is the result of a relative imbalance between information on the subject in French and in English. At a time when legislative texts extend their authority to all strata of the population, it is essential that these texts be understandable and accessible.
When discussing legal drafting, there is a popular distinction that is inevitably made between the form and the substance of the law. This idea, while sometimes valid, constitutes a gross oversimplification of reality, for where does form end and substance begin or vice versa ? Nor is it found that this traditional distinction settles the sticky question of structure in the law.
The establishment of rules for drafting in French can not and must not proceed from a literal translation of English rules or practices, for the thought processes of these languages are far too different. For this reason, it has been necessary to undertake a meticulous empirical approach to describe just what characterizes the French use of legal language. Generally speaking, in French, the law should be an abstract declaration of principles ; specifics of application are left either to regulations or to judiciary construction. As the major vehicle for transmitting social standards, the law must be straightforward in maintaining an equitable continuity in social practices and institutions. This suggests that the law must be clear and unequivocal, yet how is one to define clarity; admittedly here is an embarrassing concept. It seems preferable to attack the problem by eliminating ambiguity, i.e. to reduce those legal, stylistic, structural or lexical elements which hamper comprehension.
Laws can be written understandably, but do they still reflect the cultural needs of their intended audience ? The question remains largely unanswered.
Is parliamentary procedure the best way to produce a body of legislation ? When one considers the diverse training of members of parliament and the urgency of their work, is it no wonder that laws often leave much to be desired...
The composition of laws involves numerous details of which only the main ones are discussed here ; preamble, title, sub-titles, definitions, purpose, powers, obligations, responsible body, enabling provisions, coming into force, marginal notes.
Discussing these matters brings to light various factors such as:
1. the frequent gap between the content of the preamble and the substance of the law;
2. the information contained in the title with respect to the substance of the law;
3. the abuse of definitions wherein one finds the substance of the law, unusual use of words, confusion, enumerations and a paralysing effect on the evolution of the law;
4. the necessity for underscoring powers, obligations as well as the purpose of legislation.
Such considerations lead inevitably to a reassessment of what codifying the law is all about, a means for managing large volumes of textual material, for updating obsolescent and amputating dead provisions. Codification means that all possible structures of legislation must be understood; in civil law particularly, this implies deductive reasoning which proceeds from the general to the specific. Jmplicity takes priority over expliciteness and principles of « ejusdem generis » and « expressio unius, exclusio alterius » are of marginal value. The physical make-up of a code must take into account such factors as:
1. the dimension of its articles, i.e. one idea or concept per article;
2. the limited use of verb tenses, i.e. usually the present tense;
3. the use of the active voice;
4. the precise use of negations;
5. the elimination of redundancies;
6. the use of clear syntactic structures, i.e. subject + verb + complement ;
7. the correct use of French pronouns;
8. the abuse of demonstrative adjectives;
9. the correct use of references.
Following these considerations, it becomes tempting to reason in terms of model or stereotyped legislation wherein only one form should prevail ; however, although organized to standards, legislation must remain dynamic to be effective.
Finally, the cultural basis of drafting legal material must remain everpre-sent in the minds of draftsmen, for there are elementary, but pervasive elements of English and French thinking which will always come into play and orient the writer. For instance, the French will inevitably qualify something generally, where the English will prefer describing concretely the same phenomenon.
Hopefully, by refining techniques of drafting, the often exagerated need for rules of interpretation will diminish and the law will stand as it should, on its own merits.