UNIT 3:

3: LEGAL DRAFTING AND COMMUNICATION

Contents
3.0. Aims and Objectives
3.1. Introduction
3.2. The Legal Instruments as a Communication
3.3. Basic Elements of Communication
3.4. The Major Diseases of Language
3.4.1. General
3.4.2. The Disease of Ambiguity
3.4.3. The Disease of Over -Vagueness and Over-Precision
3.4.4. The Disease of Over - Generality and Under-Generality
3.4.5. The Disease of Obesity
3.5. Summary
3.6. Answers key to Your Progress Exercise
3.7. Model Examination Questions
3.8. Glossary
3.9. Selected References

3.0. AIMS AND OBJECTIVES

The basic aim of this unit is to introduce you to the fact that the legal instrument that you draft
is a communication. Hence, as a communication, your instrument must adhere to basic
elements of communication. In addition, your instrument must, to the extent possible, avoid
or at least minimize language diseases, such as ambiguity, over-vagueness, over generality
and under generality, obesity and the like.

Therefore, having completed this unit, you are expected to understand:

- that the legal instrument that draftsmen draft is a means of communication
- that a draftsman should follow principles of communication to achieve maximum
clarity and understandability.
- that a draftsman should avoid major language diseases which are mentioned above and
which hinder communication between the draftsman and his audience.

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 - that the language diseases can be avoided by careful and attentive drafting.

3.1. INTRODUCTION

The legal instrument that a draftsman brings into existence is obviously expected to convey
some message from his client to the audience irrespective of the kind and nature of the
audience. This means that the legal instrument is considered as a communication. As a
communication, it has to adhere to the basic elements of communication. In addition to
adhering to the basic elements of communication, a competent draftsman is expected to avoid,
if possible, language diseases which impede communication between his instrument and the
persons to which the instrument is addressed or to minimizing such diseases.

To achieve what has been said above, this unit is divided into four important sections each
being divided into relevant subsections. The first section of the unit tries to explain the fact
that the legal instrument is a communication while the second section attempts to discuss
basic elements of communication. The third section, on its part, tries to assess the major
diseases of language focusing on the most important ones: ambiguity, over –vagueness and
over-precisions, over – generality and under generality and obesity.

3.2. THE LEGAL INSTRUMENT AS A COMMUNICATION

So far you have been exposed to the concept and the importance of legal drafting under the
first chapter and the concern of a draftsman with the client’s intention, tools which are
valuable for improving substantive policy and definitions (their importance, kind and their
position) under the second chapter of this course. Under this chapter, particularly under this
section, we are going to discuss the fact that the legal instrument that you draft is an
instrument of communication.

Many draftsman apparently do not realize that a legal instrument is both (1) a crystallization
and declaration of rights, privileges, duties, and legal relationships and (2) a communication.
In its latter role, it is subject to the principles of communication. Too many lawyers draft as
they were preparing an instrument solely for their own reference. Apparently, they assume
that if they have the substance of the instrument clear in their own heads and reflect it in

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symbols understandable to themselves, they have fully discharged their drafting
responsibility. By doing this, they often fail to convey the substance of their client’s message.

That a legal instrument is a communication is seen most clearly in constitutions,

proclamations, regulations, and such dispositive instruments as wills. In these, the client
clearly addresses instructions to others. To be effective according to the client‘s intent, such
an instrument must carry the same meaning to those who will execute it as to the draftsman.
This also seems to be true of bilateral and multi–lateral instruments such as contracts. For all
these instruments, the ultimate audience includes the courts and other agencies that may be
called an to enforce them. Accordingly, the parties are held to standards of meaning that
transcend any purely private language. The draftsman, therefore, should respect the principles
of communications.

3.3. BASIC ELEMENTS OF COMMUNICATION

The principles of communication in legal drafting are not a matter of a legal order to be
changed at the will of the draftsman. Common to all human effort, they exist independently
of the law. Communication is based on the language habits of a particular speech community.
Language is founded on usage and, although in particular cases, usage can be violated or
changed, to dispense with it (to avoid it altogether) would make communication impossible.
The core of sound communication, therefore, is general adherence to the existing conventions
of language.

In the written communication process, in our case a legal instrument, there are four main
elements: 1) the author 2) the audience 3) the written utterance, and 4) the relevant context
or environment. The first element does not raise any significant problem beyond the fact that
the draftsman normally operates on behalf of his client rather than his own. For our purpose,
the second element is more important. Every communication is addressed to one or more
audiences, each of which is part of an established speech community. If a draftsman
neglects /ignores/ this fact, he is at the peril of failing to communicate with his audience. The
nature of the audiences for whom he is writing helps to determine the concepts he chooses, his
basic arrangement, and the specific language he uses. It determines also how much he can
leave unsaid, as taken for granted. With a will, for instance, the primary audience is the

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executor and the probate judge, who are intended to distribute the property or, often in the
case of real estate,
estate, to give effect to its distribution. The testator should make a will
understandable also to the secondary audience – the beneficiaries, who may want to press
their claims. With a contract, lease or similar instruments, the primary audience consists of the
immediate parties, who are normally those responsible for its execution and those whose
rights or privileges depend on it. The secondary audience is the court, which may be called
on to enforce the instrument in case there is a dispute or non-compliance.

With proclamations and regulations the audiences may be more varied. A proclamation
addressed primarily to government officials may need to be written differently from the one
that addressed to a segment of the public and to a highly specialized segment of the public,
and to a highly specialized segment of the public. Unfortunately, the concept of a particular
legal audience and the broader concept of the “ users of the language” are complicated by
irregularity with usages, assumptions, and values, which tend to be shared even within the
same speech community.

The concept of legal audience and users of the language are further complicated because some
legal instruments are not normally read or intended to be read by the persons to whom they
directly apply. This is more likely to be true of laws than of private legal instruments.

The role of the third element in any written communication, in general, and in a legal
instrument in particular, the written instrument itself, is reasonably plain. As the key factor in
directing, orienting, and organizing the total message, it is the element to which the draftsman
gives his primary attention. Here the draftsman's main tools are the express meanings of
particular words and phrases and the internal context, including syntax that he creates within
the instrument.

The fourth element, in any written communication, including a legal instrument, is the part of
surrounding environment or external context that the written instrument takes into account.
External context refers to the social, economic, and cultural setting in which the instrument is
to operate. The context in which a legal instrument operates is significant because it is highly
improbable that any document, taken entirely apart from the relevant environment that it
presupposes, can convey meaning, except in another environment that shares some of the

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same elements. It is the essence of a language to reflect and express, and even to affect , the
patterns of established ideas and values that help to shape the culture to which it belongs.

External environment consists of two elements:

1. The established patterns of ideas and values immediately underlying the language; (2) the
relevant collateral and usually tacit assumptions that are shared and taken account of by most
of the speech community to which both the draftsman and his audience belong. The first of
these two elements gives language its primary meanings. The second conditions or colors the
primary meanings and provides the basis for the meanings known as implications.

That no legal message is ever fully contained within the instrument or utterance that
constitutes it s express elements can be simply illustrated. If a draftsman prepares a trust
instrument requiring the trustee to separate income from the principal, the psychological
response habits shared by the draftsman and his audience that give meaning to individual
terms such as “income” “principal, and “compute” are examples of the first element of
external environment. The second element is exemplified by the generally accepted
assumption, usually left to implication. As part of the relevant context, the second element
conditions primary meaning, because, unless a different rule is expressly adopted, the normal
reader will assume as a matter of course fractions are intended to be treated according to the
custom of that speech community. Like internal context, external context also is a power tool
for resolving uncertainties, limiting otherwise over general language.

The first element of external context or environment is important to the draftsman, because it
tells him how to select particular language. He must put himself in the shoes of his intended
audience by becoming thoroughly acquainted with the language habits of the particular
speech community or communities in which the audience operates. The second element is
important because it tells the draftsman which information he must include in his message and
which he can safely omit.

Conversely, needed context can be supplied by including appropriate information in the

instrument or by referring to other documentation.
From the above discussions, it is clear that for the purposes of communication it is not enough
that drafts man and audience share the legal instrument. They must also share the relevant

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elements of the same general cultural environment and, within that environment, the same
relevant knowledge, values, and purposes.

3.4. THE MAJOR DISEASES OF LANGUAGE

3.4.1. General

In our previous discussions, we have already said that the legal instrument which we draft
must adhere to the principles of communication. To successfully communicate with our
audience, our legal instrument must be characterized by clarity. Clarity is important also to
legal instrument as a means of transmission of message.

In spite of this, however, since such an instrument is a communication and thus it is subject to
limitations inherent in language. What are the chances of achieving clarity? The inadequacies
of language are causes for misgivings, misunderstanding and confusions. We will see such
inadequacies of language under the following sub-sections as a fair understanding of them is
key in minimizing problems created by such language diseases.

3.4.2. The Disease of Ambiguity

Perhaps the most serious disease of language is ambiguity in the traditional sense of
equivocation. Language is equivocal when it has different signification equally appropriate or
is capable of double interpretation, that is, it has two or more competing meanings. A good
example is the word residence, which unless particular context resolves the doubt, can refer
equally to the place where a person has his abode for an extended period or to the place the
law considers to be his permanent home, whether or not it is his place of abode.

To avoid the so-called one-word-one meaning fallacy, it is commonly assumed that all words
are ambiguous in the equivocation sense because almost every word is used in various senses
and thus has more than one meaning. Does the existence of multiple dictionary meanings
make a word equivocal and therefore ambiguous? The answer to this question lies in the
difference between an ambiguous word and a group of homonyms.
Groups of homonyms are easily confused with ambiguous words, because both have multiple
thrusts of meaning, but the two are not the same. On the one hand, the intended sense of a

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word designating a group of homonyms is almost inevitably revealed in use, what ever the
peculiarities of context. The homonym’s capacity for sense sifting is built in and automatic.
Examples of such multipurpose words are many: E.g. a) If he can , the buyer shall return the
empty can.
can.

If the bear causes damage, the owner will bear the cost. This kind of multiplicity of
meanings, often considered a defect of language, may actually be a benefit. At least, it makes
possible an economy of symbols. Hence, homonyms are different from ambiguous language.

With the ambiguous word, on the other hand, the uncertainties of alternative reference are not
resolved merely by use in context. In the statements “His rights depend on his residence”, it
is not clear whether they depend on place of abode or an legal home.

Whereas homonyms do not present significant danger, the ambiguous word carries the threat
in specific use of competitive thrusts of meaning that are almost never describe or justifiable.
Because of its potential for deception or confusion, an ambiguous word should not be used by
the draftsman in a context that does not clearly resolve the ambiguity. Indeed, an ambiguous
word must not be used in legal drafting.

Because the line between homonyms and ambiguity depends on their respective potentials for
deception and confusion in use, differences in degree sometimes make it hard to tell on which
side of the line a particular word falls. However, more identification is not important. What is
important is that the draftsman determines whether, in the particular contexts there is likely to
be a significant uncertainty of meaning. If there is, he should resolve it by using another word
or by taking the precaution of adjusting the context or adding explanatory language.

The ambiguities just discussed are called semantic ambiguities. The uncertainty of their
meanings not inevitably resolved by context, is traceable to the multiplicities of dictionary
definitions, which exist independent of context. That their evils are felt, never the less, only
in specific context makes it desirable to distinguish them from a second king of ambiguity.

By far the most prevalent kind of ambiguity is syntactic ambiguity. Syntactic ambiguities are
uncertainties of modification or reference within the particular instrument. Simple examples
include squinting modifiers (e.g. charitable corporations or institutions performing

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educational functions). These are usually ambiguities in the original etymological sense of
alternatives limited to two.

Another and likewise prevalent kind of ambiguity is contextual ambiguity. Even when the
words and syntax of a law are unequivocal, it may still be uncertain which of two or more
alternatives was intended. An internal contextual ambiguity may result, for example, from an
internal inconsistency. When one provision plainly contradicts another, it is often not clear
which is intended to prevail. Contextual ambiguities may also be external. Thus, an
instrument may bear a similarly ambiguous relationship to another instrument with which it is
inconsistent.

Perhaps, the most troublesome contextual ambiguity, and one of the most frequent, is the
uncertainty of whether a particular implication arises. This is often true of “negative” or
“ reverse” implications covered by the maxim expressio uniusest exclusive alterius some
times the maxim applies and sometimes it does not, depending largely on context, which
tends to show what tacit assumptions are being made and taken account of. Unfortunately,
context tends in its particulars to be unique and , therefore, does not always supply clear
answer. Even So, a person who has matched the currents and eddies of usage develops an eye
for these things. The ascertainment of implied meaning is largely the recognition of familiar
language patterns and use situations.

For semantic and syntactic ambiguities, it is important to remember that their characterization
as such normally depends on their demonstrated potentiality for giving trouble in particular
uses rather than on their producing an actual ambiguity in a particular instance. As with some
unesteemed kinds of people classification is by established reputation rather than by specific
performance. Thus, the word “residence” taken in isolation, is properly classed as
“ambiguous”, even though in particular context the notion of domicile clearly emerges.
Similarly, a squinting modifier may be syntactically ambiguous in the isolation of a particular
phrase or sentence, but unambiguous in its broadest context. Because the typical reader
usually sees the details for a legal instrument before he feels its total impact, what first
appears to be an ambiguity may disappear on more careful, comprehensive reading. If not,
the ambiguity is apparent rather than actual and can be resolved only by agreement or by
judicial determination that is, by an act of judicial interpretation.

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The difference between apparent ambiguity and actual ambiguity is important. The
draftsman's highest responsibility is to see that the final text, when read in its proper context,
contains no unresolved ambiguity. It is also highly desirable, though not so critical, that he
sees that the effectiveness of the instrument is not impaired by unnecessary uncertainties of
reference that although resolvable, risk misreading at the hands of unperceptive courts or at
best requires time and effort to resolve. It is also desirable that he avoid the needless use of
terms and configuration of syntax that, whatever their immediate impact, are known to carry
the general risk of real or apparent ambiguity. Fortunately, once an actual, apparent, or
potential ambiguity has been recognized, it can always be avoided or minimized. That is why
we are discussing the nature and types of ambiguities.

3.4.3 The Disease of Over-Vagueness and Over-Precision

So far we have been discussing ambiguity as a disease in legal drafting. Now we will proceed
to discuss vagueness. Is vagueness different from ambiguity? The answer to this question
can be found under the subsequent discussions.

Some people persist on using the word “ambiguity” to include vagueness. To subsume both
concepts under the same classification tends to imply that there is no difference between them
or that their differences are legally unimportant. Ambiguity is a disease of language, whereas
vagueness, which is some times a disease, is often a benefit. Because of this significant
difference between the two concepts, it is helpful to refer to them by different names.

Whereas, ambiguity in its classical sense refers to equivocation, “vagueness” refers to the
degree to which independent of equivocation, language is uncertain in its respective
applications to a number of particulars. The uncertainty of ambiguity is central, with an
“either –or challenge while the uncertainty of vagueness lies in the marginal questions of
degree. The uncertainties of vagueness is said to result from the open appearance of concepts.

Language can be ambiguous without being vague. Conversely, language can be vague
without being ambiguous.

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Most words that denote classes or categories (those words include most of the words of which
legal instruments are composed) have elements of vagueness. Terms such as “near”
“intentional” “reasonable”, “decisive” have wide margins of uncertainty.

Like ambiguity, vagueness may be semantic in that it attaches by uncertain usage to particular
words and phrases, or it may be contextual. Contextual vagueness, which may be internal or
external, arises when one relevant provision prevails generally over another but the extent of
prevalence remains uncertain.

Unlike ambiguity, which is always bad, vagueness is often desirable. How desirable it may
be in a particular instance, depends on the extent to which the client intends to leave the
resolution of uncertainties to those who will administer and enforce the instrument. But the
draftsman, through his choice of terms and definitions and control of context, has wide
control over the areas and degrees of vagueness. Even though he may be unable to control
and to avoid vagueness altogether, he can usually reduce it to the point where the residual
uncertainties are no longer significant for the client’s purpose.

Leaving more uncertainties than the client intends, i.e., creating more vagueness then the
substantive policies of the client demand, is the language disease of over-vagueness. When
the instrument is less vague than those policies demand, this is the disease of under vagueness
or more conventionally known as “over – precision”

Although the competent draftsman almost always tries to achieve the greatest possible clarity,
this is not the same as saying that he almost always tries to achieve the greatest possible
precision. Optimum clarity for the draftsman is found in language that achieves a degree of
precision commensurate with the client’s objectives. Over- precision is unnecessary because
it not only needlessly limit the action of those who are affected by a legal instrument but
makes it harder to read, understand and administer. The draftsman should not only avoid
introducing unnecessary complexities of his own but though the appropriateness of including
unnecessary details which are demanded by the client.

To sum up, vagueness, compared with ambiguity, is not a such a disease. It becomes a
disease when words and phrases used in a legal instrument are over-vague or under vague for
the reasons we have mentioned above.

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3.4.4. The Disease of Over-Generality and Under-Generality.

A third concept, often confused with vagueness and sometime even with ambiguity, is that of
generality. A term is general when it is not limited to a unique referent and thus can denote
more than one, that is, it refers to a class. It could be hard to imagine a legal instrument that
does not contain at least one general term to a class. It would be hard to imagine a legal
instrument, that does not contain at least one general term.

The confusion of generality with ambiguity is most likely to occur with respect to
heterogeneous classes that include different referents. For example, the general term
“grandmother” is not ambiguous merely because it includes a paternal grandmother as well as
maternal one. The same is true with the general term brother-in-law which includes both a
wife's or a husband’s brother and a sister’s husband. The difference between heterogenerality
and ambiguity is that the former permits simultaneous reference while the latter permits only
alternative reference. Which occurs usually depends on the context in which the term is used.
For instance, in the sentence, “a grandmother sometimes has heavy responsibility,” the word
'grandmother' is general whereas in the sentence: "My grandmother sometimes has heavy
responsibilities" it may well be ambiguous if both grandmothers are alive.

Generality like vagueness is not necessarily a disease of language. Instead, it is an

indispensable tool. The diseases, rather, are over-generality and undergenerality. The classes
referred to in a legal instrument should be neither broader nor narrower than appropriate to
carrying out the client's objectives. Thus, unless context explains the intention, the draft man
must be careful not to say, for example, “ animals” when he means only to cover “goats” and
conversely.

Generality is more easily confused with vagueness than with ambiguity. That most general
terms are also vague in their marginal applications makes it easy to overlook the fact that lee-
way/gap/ permitted by vagueness is not the same as the leeway permitted by generality. The
word “many", for example, is both vague and general.

The most important difference between vague or ambiguous language and general language is
that ambiguity and vagueness constitute uncertainties of meaning whereas generality alone

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does not. As a means of granting leeway to those who will administer or officially interpret
the instrument, it is preferable for the draftsman to rely on the generality of language than its
vagueness, simply because, other factors remaining neutral, certainty is normally preferable to
uncertainty. Vagueness, on the other hand, is a proper vehicle for granting leeway when the
client’s uncertainty as to specific results is matched by the marginal uncertainty in the
language and context of the instrument.

Although the draftsman cannot entirely eliminate vagueness, there is no inherent reason why
he cannot find in the resources of current language a degree of generality substantially
coextensive with the policies the instrument is intended to express.

3.4.5. The Disease of Obesity

Obesity, another major disease of language in legal instruments, is a matter not of size but of
excess. It consists of prolixity,
prolixity, circumlocution,
circumlocution, avoidable redundancy and other unnecessary
language obesity is a disease because it impedes rather than facilitates understanding.
Prolixity is much like obesity. In order to achieve a cure, each mouthful must be watched. No
word or phrase should be used in a legal instrument unless there is a good reason to include it.
If it does not serve any purpose, it must be avoided.

Check Your Progress Exercise

1. How is a legal instrument a communication?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
2. What are the basic elements of communication?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
3. Is vagueness really a disease of language?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
4. Mention the types of ambiguity and discuss each briefly.
…………………………………………………………………………………………………
…………………………………………………………………………………………………

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5. What are homonyms? Are they similar to ambiguity?
…………………………………………………………………………………………………
…………………………………………………………………………………………………
6. Some languages may be vague without being ambiguous. Elaborate this statement by
giving specific examples.
…………………………………………………………………………………………………
…………………………………………………………………………………………………
7. How is semantic ambiguity different from syntactic ambiguity?
…………………………………………………………………………………………………
…………………………………………………………………………………………………

3.5. SUMMARY

A draftsman must bear in mind that the legal instrument that he prepares is a communication
as it is expected to transfer massage from the client to the audience. Hence, the draftsman,
when he prepares a legal instrument, should give relevant attention to the basic elements of
communication. He should particularly pay attention to what the audiences of the instrument
are and to the relevant context or environment in which the instrument may operate.

Moreover, a draftsman must understand that, although he has adhered to the most accepted
principles of communication and has paid maximum attention to his audience and the external
environment, is not expected to forget that he may not be capable of communicating fully
because of the inherent problems of language itself. Language has its own limitations or
diseases. Among these diseases, the salient ones are the disease of ambiguity, the disease of
over vagueness and over – precision, the disease of over-generality and under-generality and
the disease of obesity.

Ambiguity, which can be classified as semantic ambiguity, syntactic ambiguity, and

contextual ambiguity, is a disease of language when a single word is capable of double
interpretation. For example: Look at the following Amharic sentence for easy understanding
of ambiguity.

# ELÔp¿ Bñª::$
Bñª::$ What do you understand from this Amharic Sentence. Did he go to examine
others or to be examined? Sure, unless additional context and other explanation is added, the

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sentences, as it stands now, is not clear whether the individual went to examine others or went
himself to be examined.

Strictly speaking, vagueness, unlike ambiguity, is not an inherent disease of language. Rather
the disease is over-vagueness or over precision. A language is vague without being
ambiguous when it is indefinite, uncertain. Look at the following example:

“If you do this for me, I will give you considerable amount of money.” What is meant by
condideral amount? The word 'considerable' is not ambiguous but it is vague.

The other disease of language is over- generality or under-generality. Generality by itself is

not a disease of language. Rather generality may be a benefit. The last disease of language
discussed under this unit is simply prolixity or addition of unnecessary words, phrases and
sentences the addition of which does not serve any purpose in achieving clarity and
understandability rather than creating confusion and misunderstandings.

To sum up, the discussions made under this unit are very helpful for a draftsman because they
inform him of the fact that the instrument that he prepares is a communication. As such, he
should follow basic elements of communication. To the extent possible, he has to get rid of
diseases of language, which we have discussed so that maximum clarity and understandability
may be achieved.

3.6. ANSWERS KEY TO CHECK YOUR PROGRESS EXERCISE

1. The legal instrument is a communication because it is prepared not for the reference of
the drafter but it will be addressed to the audience irrespective of the type and nature of
the audience. It is a communication because it is by this instrument that the client
addresses or communicates with others. This instrument, whatever its nature, conveys
some messages from the client to the audience. Hence, the legal instrument is a
communication.
N.B. Regarding the remaining questions general guidelines will be given as follows.
2. Refer Section 3.3.
3. Refer Section 3.4.3.
4. Refer Section 3.4.2.

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5. Refer Section 3.4.2.
6. Attempt it by yourself
7. Refer Section 3.4.2

3.7. MODEL EXAMINATION QUESTIONS

1. What do you understand by obesity? Is it a disease of language? If yes, how can it be

avoided?
2. “Old women or men will receive medical treatment free of any charge.” Is this
statement ambiguous? Where does the ambiguity lie? Is the ambiguity semantic or
syntactic?

3.8. GLOSSARY

1. Ambiguity - doubtfulness of meaning; indistinctness or uncertainty of meaning or

expression used in a written instrument.
2. Generality-
Generality- relating to the whole kind, class or order; pertaining to or designating the
genus or class as distinguished from that which characterizes the species or
individuals.
3. Homonyms – word spelt or pronounced like another but of different in meaning.
4. Semantic – connected with the meaning of words and sentences.
5. Syntactic – Connected with syntax.
6. Syntax – the way that words and phrases are put together to form sentences in a
language.
7. Vagueness – being indefinite; uncertain, not susceptible of being understood.

3.9 SELECTED REFERENCES

1. Reed Dickerson: The Fundamentals of Legal Drafting;

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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