UNIT 5: ARRANGEMENT OF LEGAL INSTRUMENTS

Contents

5.0. Aims and Objectives

5.1. Introduction
5.2. Introductory Remarks on Arrangement
5.3. General Principles of Arrangement
5.3.1. Division
5.3.2. Classification
5.3.3. Sequence
5.4. Summary
5.5. Answer Key to Check Your Progress Exercise
5.6. Model Examination Questions
5.7. Glossary
5.8. Selected References

5.0 AIMS AND OBJECTIVES

After completing this unit students are expected to understand:

- that arrangement of legal instruments is key for easy reference, clarity, simplicity and
understandability.
- Fundamental principles of arrangement such as division, classification and sequence.

5.1 INTRODUCTION

As we have tried to expose in our previous units, a legal draftsman, before he writes anything,
has to understand what his client wants to get drafted. Once he has understood this, he has to
comply with principles of communication in drafting his instrument as the instrument is to be
addressed to certain audience. On top of this, the draftsman should strictly follow steps of
drafting both when he "thinks" and when he composes (writes). All these series of processes
will be culminated when the legal instrument is finally arranged because arrangement is

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equally important for simplicity, easy reference and generally for the understandability of the
instrument.

That is why our last, but not least, unit of our course is made to concentrate on the
arrangement of the legal instrument. This unit focuses on the general arrangement principles
such as division, classification and sequence. Each item has been treated separately so as to
illuminate the concept and purpose of arrangement.

5.2. INTRODUCTORY REMARKS ON ARRANGEMENT

The discussions made so far are instrumental for qualitative drafts. This unit also plays no less
roles than the previous ones as the desirability of an adequate framework of a legal instrument
is clear. The draftsman cannot develop a satisfactory plan for a legal instrument unless he
understands the general principles of arrangement. This is the most fundamental, and possibly
the hardest, part of making his ideas clearer and more definite. It is certainly the most elusive
and the hardest to describe.

For this purpose, a satisfactory outline is something more than numbered paragraphs and
subordinate tabulations. It is a logical pyramid in which the location of specific items in the
hierarchy of substantive ideas show their interrelationships and relative importance. Unless
the draftsman has some real grasp of this fact, he has little chances of controlling his ideas so
as to get his client's message expeditiously across.

The draftsman should distinguish the outline form as an aid to analysis from the outline form
as a means of expressing final text. The former must, in the interest of analysis, be severely
hierarchical; the latter, in the interest of clarity, predominantly linear. Thus, an instrument
whose apt concepts and logical sequence reflect a sophisticated, detailed working outline may
finally appear merely as a series of numerically coordinate sections.

The chief aim in arranging an instrument is to make the final product as clear and useful as
possible. The draftsman should carefully select the subjects to be covered and arrange them so
that they can be found, understood, and referred to with the least possible effort.

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There is, of course, no all purpose arrangement that is the most suitable for all sets of ideas.
Every sensible arrangement should reflect a point of view. What may be the best arrangement
from one point of view may not be the best from another. The draftsman should make sure
that he is reflecting the point of view that best advances the purpose of his client.

It is very important to arrange the specific elements so as to make clear the meaning of the
instrument, including its internal relationships. Thus, the draftsman should, so far as possible,
arrange the materials to reflect their underlying rationale. This will help persons using the
instrument to interpret it correctly.

5.3. GENERAL PRINCIPLES OF ARRANGEMENT

The arrangement of a legal instrument should always be functional in the sense that it should
serve the objectives set forth in the preceding section. In each case the central problem is to
develop the most effective hierarchy of relevant ideas and at each level in the hierarchy to
choose the most useful principle of order the ultimate goal of which is simplicity and clarity.
In general, the better the arrangement, the less page turning required. The draftsman should
avoid any arrangement that requires substantially more cross-references between parts or
sections than is required by an alternative arrangement offering equal or better findability,
clarity and usability.

In developing a specific arrangement, a draftsman is confronted with three kinds of problems.

1. Problems of division
2. Problems of classification
3. Problems of sequence

Let us discuss the above problems of arrangement under the following sections.

5.3.1. The Question of Division

problems of division are those involved in determining the respective bases on which the
main and subordinate divisions of a legal instrument are to be made. Here the draftsman
should choose the most fundamental basis of arrangement for his primary breakdown, and for
subsidiary breakdowns, the next most fundamental basis of arrangement in descending order

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of importance. Here is a very simple example. In a contractual agreement among the next of
kin, legates and creditors of a deceased whose complicated estate consists of personal effects
too small in value to warrant the expense of administration, the main breakdown is as follows:

1. Why ("purpose")
2. Who ("parties")
3. What (terms of agreement)
4. When ("effective date")

Look at the constitution of the Federal Democratic Republic of Ethiopia and notice very
carefully how the draftsman divided (how he tackled the problem of division) the constitution.
The draftsman divided the constitution into eleven chapters. Under the first chapter of the
constitution general provisions have been laid down; then under the second chapter
fundamental principles of the constitution have been dealt with. The third chapter deals with
fundamental Rights and Freedoms and so on. This arrangement of the constitution clearly
shows how legal instrument are divided into major parts.

In many cases, it is helpful to base the primary division on the kinds of persons affected,
administrative organizations involved, field in which they operate, and to deal with such
matters as chronology separately for each major subdivision as subsidiary bases of
arrangement.

We have to understand that the key to selecting the most logical basis of division is the
purpose for which the classification is undertaken. For instance, assume that the Transport
Bureau of Addis Ababa City Government is confronted with the problem of street traffic. In
this case the bureau would be interested in such bases of division as the ability of vehicle to
change its route, the relative flexibility of route as between buses, taxis, speed capability, bulk
and weight.

5.3.2. The Question of Classification

Once the draftsman has settled the question of division, his next problem is to determine how
to classify the subject matter addressed by the legal instrument and where to insert this subject
matter. In other words, once a basis for division has been tentatively selected at any level, its

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application to the materials at hand leads inevitably to the problem of classification – the
problem of determining the appropriate subjects, groupings, or other elements that are to be
placed in logical sequence.

The problem of what is a unified "subject" or topic for the purpose at hand is one of the most
difficult problem in the field of arrangement. In general, the modern view is that the
draftsman's problem is not a matter of discovering absolute method of classification but that
of determining what groupings are the most useful in dealing with the particular situation.

The concepts and groupings used in the text of a legal instrument should correspond to those
necessarily involved in the substantive problems faced by the persons to whom the instrument
is primarily addressed.

One important rule of classification is that the draftsman must not dismember a functionally
indivisible subject merely because it falls partly within one parent heading and partly within
another. For example, if a draftsman were to classify dogs by color and placing in a separate
pens, he would hardly cut off the brown ears of the white dogs and throw the ears into the pen
of the brown dogs. Rather he would either include in the white pen all dogs that were
predominantly white or create a special pen for dogs of mixed colors.

5.3.3. The Question of Sequence

Once the classification is made, the third step with respect to that particular division is to
arrange the resulting elements in the most appropriate logical sequence. There may be as
many sequences as there are bases for division used in the instrument. Except for the
sequence of elements in the principal division used in the instrument, each sequence will
represent the division of an element that appears in a higher sequence.

Regarding place, the draftsman will find the following rules of sequence helpful, particularly
for the main division of the instrument.

(1) General provisions normally come before special provisions. In this regard, please
look at again the provisions of the FDRE constitution. Under this constitution, general
provisions (Art. 1- 7) are placed at the beginning of the constitution.
(2) More important provisions normally come before less important provisions.

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(3) More frequently used provisions normally come before less frequently used provisions
(i.e., the usual should come before the unusual).
(4) Permanent provisions normally come before temporary provisions.
(5) Technical provisions, such as effective date provisions, normally come at the end. To
understand this, students are advised to have a look at our proclamations and regulations
as these laws usually put effective date at the end.

In the temporal dimension (regarding time) the normal ordering of provisions follows the
chronology of successive actions or events. This, of course, is one of the most frequently used
principles of logical sequence.

Unfortunately, there is no simple principle by which the draftsman can determine which kind
of sequence is the best. Even so, the following primary sequence may be useful for many
legal instruments.

(1) Title, if any.

(2) Statement of purpose or policy, or preamble, if any.
(3) Definitions, if the need is felt.
(4) Statement of to whom or to what the instrument applies (scope of application).
(5) Most significant general rules and special provisions.
(6) Subordinate provisions, and exceptions large and important enough to be treated as
separate sections.
(7) Sanction, if any.
(8) Temporary provision.
(9) Specific repeals and related amendments, if any.
(10) Effective date, if any.

Check Your Progress Exercise

1. What problems does a draftsman face when he arranges legal instruments?
…………………………………………………………………………………………………
…………………………………………………………………………………………………

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2. Assuming that you are a draftsman of a proclamation, where do you put "effective
date" of the proclamation?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
3. Arrange the following parts of a proclamation on the basis of sequence.
- Preamble
- Effective date
- Scope of application
- Title of the proclamation
- Major divisions and subdivisions of the proclamation

5.4. SUMMARY

A legal instrument, once it has been drafted, should be arranged logically for easy
understandability. This means that when legal instruments are arranged adhering to the
general principles of arrangement, the draftsman can be said to be capable of communicating
his client's ideas to the concerned audience. In the absence of logical arrangement, to think
that the draftsman can easily get across the client's idea is an exercise in futility.

This being the case, therefore, a draftsman is expected to develop sound knowledge of
arrangement of a legal instrument. To achieve this goal, he has to acquaint himself with the
general principles of arrangement.

He has to understand that a legal instrument should first be divided into appropriate divisions,
then he has to insert the items under the appropriate division. This is classification. Once he
has divided and classified his instrument, the next and final step is arranging the instrument
following a logical and appropriate sequence.

5.5 ANSWERS KEY TO CHECK YOUR PROGRESS EXERCISE

1. In arranging a legal instrument, a draftsman faces the problems of division,

classification and sequence.
2. Refer Section 5.3.3.
3. Refer Section 5.3.3.

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5.6. MODEL EXAMINATION QUESTIONS

1. If you are assigned to come up with a draft proclamation, which part of the
proclamation do you place first?
2. Why is arrangement of a legal instrument necessary?

5.7. GLOSSARY

1. Breakdown – detailed information that you get by studying a set of figures.

2. Chronology – the order in which a series of events happened; a list of these events in
order.
3. Classification – arrangement into groups or categories on the basis of established
criteria.
4. FDRE – Federal Democratic Republic of Ethiopia
5. Tabulation – arrangement of facts or figures in columns or lists so that they can be
read easily.

5.8. SELECTED REFERENCES

1. Reed Dickerson: The Fundamentals of Legal Drafting (2nd ed; Little Brown &
Company, 1981)
2. Reed Dickerson: Materials on legal Drafting; (Horn Book Series, 1986)
3. Shiferaw W/Michael: Legal Drafting materials (Faculty of Law, AA.U, Unpublished)

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