How Does Legislative Expression Compare With Other Forms Of Communication?
If we want to avoid ambiguity in legislation, typically we have to use more elaborate forms of expression than are found in ordinary speech or writing. In commonplace communications, a person states what he or she requires another to do or not to do in quite simple terms. These are readily understood because they are uttered against a background of shared experience upon which both parties draw in expressing or discovering what is meant. Short-cuts can often be taken since uncertainty can be clarified by requests for further information.
For example, an instruction from a father to a son, “Fetch the car”, will be completely understood by both. Both know which car is being referred to, where it is, that the son is expected and has authority to drive it and so on, without those matters being expressly mentioned by either.
Legislation, however, must be expressed in generalized language of a more abstract nature. The context in which its requirements are to apply must be made apparent from its terms and the scope of its application must be ascertainable from an examination of the words actually used.
The point can be illustrated by another simple example. The biblical commandment -“Thou shall not kill” – prohibits the termination of human life but is not intended to refer to the slaughter of animals or the destruction of insects or flowers. We know this because of the context in which the commandment was originally made and continues to be used.
We also know that it is not concerned with deaths caused by someone in circumstances over which he or she had no control. We also feel instinctively that it does not fully apply to killing that is the only way to preserve one’s own life or to prevent another from being killed. Whatever our beliefs, we are also likely to conclude that the commandment provides incomplete guidance on such questions as killing during war or public disorder, or under extreme provocation or mental illness, or in cases of abortion, capital punishment or euthanasia or of deaths following medical negligence or in traffic “accidents”.
But the legal system must provide guidance for all these cases. The law must attempt to differentiate between the many varied circumstances in which the death of one person is caused by another (whether in breach of the biblical precept or not or whether murder or not) and to deal with the attendant consequences in ways that the community finds acceptable. The result inevitably is an elaborate series of prescriptions, exceptions and extenuations. Many may find this body of rules to be complicated or not easy to assimilate because of its detailed nature. This may be so even though the individual rules are stated as directly and in as straight-forward language as is possible.