Legislative Drafting

A legislative drafter is the technician who turns legislative policy into concrete provisions of law. Legislative drafting is a highly skilled profession that takes years to perfect. The legislative drafting process is key to the overall success of law reform efforts. The international community to date has, unfortunately, paid little attention to how laws are drafted. Best practice standards in the area of law reform urge those involved in or supporting the process to pay close attention to legislative drafting.

Unfortunately, there is a dearth of qualified legislative drafters in the law reform process in many postconflict and developing countries, so a nonprofessional drafter is usually recruited to create new legal provisions. As a matter of best practice, a legislative drafter—and ideally a single drafter, because laws are not best drafted by committee—should draft new laws. Where this is not possible for financial or other reasons, it is important for the person responsible for legal drafting to invest research and time in learning how to draft legislation. If possible, the drafter should receive training, mentoring, or some other form of capacity development in this field.

Consideration should also be given to the style of legislative drafting to be adopted. For example, in the English-speaking world, a very popular style currently is “plain English,” which avoids the use of overly complex, outdated language and instead employs clear and concise language that can be understood by nonexpert readers. In some cases, the drafter may decide to write commentaries or explanatory memoranda to effectively outline the legislative intent of the new laws and its provisions.

A final important issue to consider is the use of foreign laws to inspire new laws. There is a considerable debate about this phenomenon, which is referred to as “legal transplantation.” Some experts argue that foreign laws should never be used in the drafting of domestic laws, others argue that pure transplantation has occurred for years and should continue, and yet others adopt the middle -ground and contend that foreign laws can be used if they are adequately adapted to the context at hand.

Below are links to resources that address the range of issues discussed. The resources outline good practices and approaches in the drafting of new laws, whatever the area of legal reform may be.