Front Page Titles (by Subject) CHAPTER XXXIII.: OF THE STYLE OF THE LAWS. - The Works of Jeremy Bentham, vol. 3
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CHAPTER XXXIII.: OF THE STYLE OF THE LAWS. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 3 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 3.
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OF THE STYLE OF THE LAWS.
The perfections of which the style of the laws are capable, may be distinguished into those which are essential, and those which are secondary.
The first consist in avoiding the different faults of which this style is susceptible; the second in employing those beauties which are suitable to the subject.
The desirable object of the laws in regard to style is, that it may be such that at every moment in which they ought to influence the conduct of a citizen, he may have presented to his mind an exact idea of the will of the legislator in this respect.
For the accomplishment of this object two things are requisite:—1. That at the moment in question, the idea should already have been placed in his mind; 2. That it shall not have escaped from it.
This idea will not have been correctly placed in the mind—1. When the words employed do not convey any idea; 2. When they present only part of the idea intended to be conveyed; 3. When instead of this idea they present another altogether different; 4. When they include other propositions in conjunction with that intended by the legislator.
Hence we discover that clearness, precision, is one of the essential qualities of this style.
As it is also to be wished that the idea, once correctly placed in the mind, should remain there always ready for use, and as men differ in regard to the strength of their memories, and the more any one endeavours to load his memory, the more he is likely to forget, we have learned that another important quality in this style is brevity.
Such was the precept of Horace eighteen centuries ago: but hitherto in respect to England, his precept has been delivered in vain.
Defects of style may be referred to four heads:—unintelligibility—equivocality—too great extent—too great limitation.
As an example, I may employ a law cited by Puffendorf, promulgated in a country in which assassination had become common:—“Whosoever draws blood in the streets shall be put to death.” A surgeon found a man faint, and bled him in the street. This circumstance showed the necessity of interpretation; that is, it displayed one of the defects of the law.
This enactment was defective by excess, and by defect:—by excess, in that it admitted of no exception with regard to those cases in which the drawing of blood in the streets might be either useful or innocent; by defect, in that it did not extend to murder, and other methods of wounding not less dangerous than those by which blood is spilled.
If it were the intention of the legislator to comprehend in his prohibition all kinds of grievous injuries which could be committed in public places, he did not know how to express himself clearly.
A judge confining himself to the text of the law, would punish with death slight accidents, and even acts of mercy.
Another judge equally faithful to the text, would leave unpunished more hurtful acts of violence, than those which shed blood.
The law which presents different significations to a judge, cannot fail to be wanting in precision and clearness to individuals.
One will find a man struck by apoplexy, and will prudently leave him to die.
Another, listening to the voice of humanity, will violate the law, and succour the sick man, and thus expose himself to be condemned by the inflexible judge.
Another, trusting in the literal sense of the law, will leave his adversary half dead with his blows; in the manner of that archbishop, who that he might not shed blood, made use of a mace.
It is to be wished, that those minds which consider it beneath the dignity of genius, scrupulously to attend to the care of words, would reflect upon this example. As are the words, such is the law. Laws can only be made with words. Life, liberty, property, honour—everything which is dear to us, depends upon the choice of words.
In all cases of want of precision, the fault arises either from the choice made of the words, or from the manner in which they are put together; that is to say, either from the terminology or from the syntax. In either case it is an affair of grammar, and we may remark, that besides being enlightened, it behoves the legislator either to be or to employ a consummate grammarian.
With regard to brevity, a distinction is necessary. A code of laws prepared upon the best plan, and reduced to the smallest dimensions, will always be too large to be committed to the memory entire; hence the necessity of separating into distinct codes, those parts which are intended for the use of particular classes, who have need to be more particularly acquainted with one part of the laws than another.
Brevity of style may regard sentences and paragraphs, as well as the whole body of the laws.
Lengthiness is particularly vicious when it is found in connexion with the expression of the will of the legislator.
The faults opposed to brevity which may be found in a paragraph are—
1. Repetition in terms.
2. Virtual repetition or tautology: as for example, when the king of France is made to say, “We will, we direct, and it pleases us.”
3. Repetition of specific words instead of the generic term.
4. Repetition of the definition, instead of the proper term, which ought to be defined once for all.
5. The development of phrases, instead of employing the usual ellipses: for example, when mention is made of the two sexes, in cases in which the masculine would have marked them both; cases in which the singular and plural are both used, when one of the two numbers would have been sufficient.
6. Useless details: for example, in regard to time, when instead of confining one’s self to the event which would serve for this effect, it has been made dependent on some anterior event or train of events.
It is by the collection of all these defects that the English statutes have acquired their unbearable prolixity, and that the English law is smothered amidst a redundancy of words.
It is not enough that the whole of a paragraph is concise in regard to the number of ideas that it presents: the sentences in which they are presented should have this same quality. This circumstance is equally of importance whether it concerns the understanding or the retaining the sense of a paragraph: the shorter the distance between the beginning and the ending of each sentence, the more numerous the points of repose for the mind. In the English statutes, sentences may be found which would make a small volume. Pitching blocks are erected in certain places in the streets of London, for porters with their loads: when will English legislators take equal care for the relief of the minds of those who study their labours.
It is not only desirable that the paragraphs be short: they ought to be numbered. Some means is necessary for separating and distinguishing them: that of numbering is the most simple, the least liable to mistake, the most easy for citation and reference.
The British Acts of Parliament are still defective in this respect. The division into sections, and the numbers which designate them in the current editions, are not authentic. In the original parliamentary roll, the text of the law is one single piece, without distinction of paragraph, without punctuation, without a figure. By what means is the commencement and the termination of an article shown? It is only by the repetition of the introductory clauses:—“And further be it enacted.” “And it is further enacted by the authority aforesaid,” or some other phrase of the same kind. These are, so to speak, a species of algebraic notation, but of an opposite character. In algebra, one LETTER supplies the place of a multitude of words and figures; here, a line of words very imperfectly supplies the place of a single figure. I say imperfectly, for though these words may serve for the purpose of division, they do not serve for the purpose of reference. Is it wished to amend or revoke one article in an act? As it is impossible to designate this article by a numerical reference, it is necessary to employ periphrasis and repetitions, always long, and always obscure. Hence English acts of parliament are compositions unintelligible to those who have not by long use acquired facility in consulting them.
This evil has arisen from a superstitious attachment to ancient customs. The first acts of Parliament were passed at a time when punctuation was not in use—when the Arabic figures were unknown. Besides, the statutes, in their state of original simplicity and imperfection, were so short and so few, that the want of division did not produce sensible inconvenience, Things have remained upon the same footing from negligence, from habit, or from secret and interested opposition to all reform. We have lived for ages without using stops and figures: why adopt them today? This argument is above all reply.
With regard to perfections of the second order, they may be reduced to three—force, harmony, and nobleness. Force and harmony depend in part upon the mechanical qualities of the words employed—in part upon the manner in which they are arranged. Nobleness depends principally upon the accessory ideas which they are calculated to excite or to avoid.
Barren though the subjects of the laws may be, they are susceptible of a species of eloquence which belongs to them, and of which the utility ought not to be despised, as it tends to conciliate the popular sanction. With this view, the legislator might sprinkle here and there moral sentences, provided they were very short, and in accordance with the subject; and he would not do ill if he were to allow marks of his paternal tenderness to flow down upon his paper, as proofs of the benevolence which guides his pen. Why should the legislator be ashamed to appear as a father? Why should he not show that even his severities themselves are benefits? This species of beauty has been remarked with pleasure in the political code, as well as in the instructions of Catherine II. It was also exhibited in the preambles to certain edicts of Louis XVI., under the ministry of two men who did honour to France and to humanity.
Having made these general observations, the following rules may be given as practical directions:—
1. It is proper, as much as possible, not to put into a code of laws any other legal terms than such as are familiar to the people.
2. If it be necessary to employ technical terms, care ought to be taken to define them in the body of the laws themselves.
3. The terms of such definitions ought to be common and known words; or at least, the chain of definitions, more or less known, ought always to finish by a link formed of such words.
4. The same ideas, the same words. Never employ other than a single and the same word, for expressing a single and the same idea. It is, in the first place, a means of abridgment, because the explanation of the term once given, will serve for all times: and the identity of the words contributes still more to clearness than to brevity; for if they vary, it is always a problem to be solved, whether it have been intended to express the same ideas, whereas, when the same words are employed, there can be no doubt but that the meaning is the same. Those who are Iavish of their words, know little of the danger of mistakes, and that, in matters of legislation, they cannot be too scrupulous. The words of the laws ought to be weighed like diamonds.
The composition of a code of laws will have required so much the more knowledge, in proportion as it shall demand less knowledge to comprehend it. In works of art, the perfection of art consists in its concealment: in a code of laws addressed to the people, and to the least intelligent portion of the people, the perfection of science will be attained, when its efforts are not perceived, and its results are characterized by noble simplicity.
If in the foregoing work science have been found, and even theory and abstract science, it ought to be remembered that it has been necessary to combat a multitude of errors created by false science—to establish principles so ancient and so new, that to some eyes they will not appear to be discoveries, whilst to others they will appear altogether paradoxical. It has been necessary to introduce order into the chaos of nomenclature with respect to rights, offences, contracts, obligations—to substitute in the place of an incoherent and confused jargon, a language very imperfect, but still more clear, more correct, and more conformable to analogy: in a word, as respects the scientific part of the law, it has been necessary to unlearn and to reconstruct the whole. No one can be more disgusted than myself at the abuse of science—no one can be more sensible of the ill effects it produces. If I have not attained my object, I believe that I have shown the way to it.
If comparison should be made between my labours and the books of actual law, these will be found bristling with a certain science as repulsive as it is inexact and useless, and which owes its obscurity to its own absurdity—whilst by how much the more this project has abounded in science, by so much the less will it be necessary that any should appear in the text of the laws. I have endeavoured to throw the burthen upon the legislator, that the yoke may be lightened for the people. I have given the labour to the strong, that the repose of the weak may be better secured.
A code formed upon these principles would not require schools for its explanation, would not require casuists to unravel its subtilties. It would speak a language familiar to everybody: each one might consult it at his need. It would be distinguished from all other books by its greater simplicity and clearness. The father of a family, without assistance, might take it in his hand and teach it to his children, and give to the precepts of private morality the force and dignity of public morals.