Legal writing: specificity Specification in legislative writing: accessibility, transparency, power and control

Abstract

Legal discourse is different from most other professional discourses, in that the nature of its interpretation process, whether spoken or written, is very much dependant on the context in which it is likely to be applicable. In most professional and disciplinary contexts interpretation of discourse is largely hearer-or reader-based, in that there is some freedom for variable interpretation, of course, with some relevance to the context in which it has been used, but interpretation of legal discourse is most often based on its relevance and hence application to critical moments in specific ‘sites of engagement’ (Scollon 1998), and is often irrespective of the participants involved, and every effort is made to ensure consistency of interpretation. It is particularly so in the case of legislative writing, which is drafted to correct a specific social ‘mischief’ and hence invariably interpreted in the context of relevant descriptions of such instances of ‘mischief’, often treated as the material facts of the case to which a specific legislative statement is applied. Seidman, Seidman and Abeyesekere point out that the ‘mischief rule’ holds thatin construing a statute, a court should first examine the social problem at which the statute aims (the ‘mischief’), determine the means that the statute ordains to address that mischief, and then construe the statute to further those objectives … Of all the general principles of interpretation, the mischief rule seems best adapted to ensuring that courts construe statutes to carry out the legislative purpose.