UNIT 2: DRAFTING AND SUBSTANTIVE POLICY

Contents
2.0. Aims and Objectives
2.1. Introduction
2.2. The Draftsman Direct Concern with Substantive Policy
2.3. Draftsman’s Tools for Improving Substantive Policy
2.3.1. Consistency
2.3.2. Sound Arrangement
2.3.3. Normal Usage
2.4 The Role of Definitions for Substantive Clarity
2.4.1. Role of Definitions
2.4.2. Kinds of Definitions
2.4.3. Uses of Stipulative and Lexical Definitions
2.4.4. Formal Aspects of Definitions
2.5. Summary
2.6. Answers Key to Your Progress Exercise
2.7. Model Examination Questions
2.8. Glossary
2.9. Selected References

2.0. AIMS AND OBJECTIVES

Having completed this unit students will be able to understand the following:
- the draftsman direct concern with substantive policy of the client (what the client
intends and wants)
- important tools such as consistency, sound arrangement and normal usage which are
instrumental for the improvement of substantives policy.
- the importance of definitions for the improvement of substantive clarity.
- kinds of definitions and the importance of each definition.
- formal aspects of definitions.

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2.1. INTRODUCTION

A draftsman, before picking his pen up and spilling his ink on a sheet of paper, has to make
sure that he has sufficiently understood what his client wants. There must be meetings of the
mind of the draftsman and the client so that what the client wants would ultimately be reduced
into a tangible and concrete legal instrument for the draftsman is acting in the name and on
behalf of his client. That is why the first section of this chapter is devoted to the discussion of
the draftsman’s concern with the substantive policy of his client.

In order to achieve this purpose, apart from his direct concern with substantive policy of his
client, a drafts man should fully apply the tools discussed under the second section of this
unit. These tools – consistency, Sound arrangement and normal usage- are very decisive for
improving the substantive policy of the drafts-man’s client.

Finally, because definitions play immeasurable roles in achieving clarity, due attention has
been accorded to them under the last section of the unit under consideration.

2.2. THE DRAFTSMAN’S DIRECT CONCERN WITH SUBSTANTIVE POLICY

As a legal draftsman, you have a strong interest in substantive policy, but how you approach
the matter is crucial. The draftsman’s functions begins with substantive ideas that he is called
on to express in what he has drafted; briefly, the draftsman's job is to help his client put in
legal form what the client wants in substance, and to help him accomplish it as smoothly and
effectively as possible. That is why the draftsman must have a direct concern with the
substantive policy of the client.

Like the architect and the engineer, the legal draftsman must be brought into the particular
problem long before he picks up his pencil. He must find out as much as possible about what
the client is trying to accomplish and about the factual environment in which the matter arises.
A legal draftsman who allows himself to be less than fully informed on both the underlying
policies to be expressed and their background is not discharging his central responsibility
properly. In other words, to come up with the appropriate legal instrument, the draftsman
should be first aware of the things that must be included in the draft.

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The draftsman is not expected to be more concerned than this about substantive policy. He
does not make substantive policy in the sense of having responsibility for its wisdom or of
making final decisions on what is to be done and its desirability. On the other hand, in the
drafting of many kinds of legal instruments, the draftsman's advice on policy is often
earnestly sought and properly given. The practical problem is to discharge without
encroaching on the prerogatives of the client. Discharging this responsibility takes a
wholesome point of view and some sophistication.

A draftsman who has got the confidence of his client can have a profound and beneficial
influence on the formulation of policy. The approach, training and practical experience of a
lawyer are such that he is likely to discover fundamental aspects of a proposed instrument that
the client has overlooked. If he is good in approach and the client is willing, the draftsman
can volunteer affirmative policy suggestions, based on his knowledge and experience, that
may prove highly valuable.

On the other hand, the draftsman must be careful not to impose his own substantive policy or
views against the wishes of the client. If he does this, he is usurping a function that belongs to
another. The draftsman of laws is an especially sensitive position. His client, a legislator, a
legislative committee, or an administrative official is presumably knowledgeable in matters of
policy.

A legislative draftsman, although entitled to point out policy considerations involved in the
draft, must take every precaution against unnecessary injection of his own views into the
policy features of the bill.

To emphasize the vicarious position of the legislative draftsman, Middleton Beaman, late
legislative counsel of the House of Representatives (U.S.A) once exaggerated the point by
remarking that the draftsman must be an “intellectual eunuch”. However deeply he may feel
about the wisdom of the policy he is called on to express, he must submerge his own feelings
and act with scrupulous objectivity. Within the bounds of legality and professional morality,
he should do his utmost to carry out his client’s purpose even when he strongly disagrees with
it.

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The same considerations apply when the client is a private citizen or a private legal person for
whom the draftsman is preparing a lease, an indenture, a contract, or a will. In this case,
however, the draftsman is more likely to be engaged not only to use his drafting expertise but
to give advice on policy, and even to participate in the policy decision. As with the legislative
client, the less the private citizen knows about the relevant policy considerations, the more
likely it is that he will rely on the draftsman for policy advice. Even in these circumstances,
the draftsman shouldn’t go farther than the client whishes.

The key to success in this sensitive relationship consists not in knowing specific rules but in
having a wholesome attitude of service. With such an attitude, the draftsman will find out
how for he can appropriately go with the particular client in the particular case.

In general, a draftsman, before drafting any legal instrument, must have good understanding
of what his clients want. In other words, the mind of the client and the mind of the draftsman
should met. Otherwise, the draftsman may come up with his own version of drafting (a
drafting that may be at variance with what the client wants).

2.3. THE DRAFTSMAN’S MAIN TOOLS FOR IMPROVING SUBSTANTIVE POLICY

Under 2.2. above, you have been introduced with the draftsman’s direct concern with
substantive policy – i.e., his concern about what his client wants. Now your attention must be
directed to the tools which are helpful to improve substantive policy. True, for a draftsman to
come up with a draft, which reflects, to a larger extent, the desire of the client, the following
mechanisms or tools are essential.

Although application of any formal principle (Such as care in selecting particular words)
tends to improve substantive policy, experience shows that the following three techniques
play essentially remarkable roles. These tools do this by exposing the basic lack or
inadequacy to draftsman‘s view. Whether the opportunity is exploited depends on the
perceptiveness of the particular draftsman. Needless to say, an experienced draftsman
develops a sharp eye for the ambiguities, contradictions, omissions and other discrepancies
that the following devices help expose.

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2.3.1. Consistency

This is probably the most important formal technique for uncovering /exposing/ hidden
inadequacies. This means that a draftsman should strive for complete internal consistency of
terminology, expression, and arrangement.

In this operation, the competent draftsman makes sure that each recurring word or term has
been used consistently. He carefully avoids using the same word or term in more than one
sense. Conversely, he carefully avoids using different words to represent the same idea. In
brief, he always expresses the same idea in the same way and always expresses different ideas
differently. In so far as he can, the draftsman applies the principles of consistency also to
phrases, sentences, paragraphs, arrangements and format. If two paragraphs or sections are
similar in substance, he arranges them similarly. Consistency of expression has appropriately
become the “Golden Rule” of drafting.

A draftsman who follows these practices is certain to be rewarded. He may discover, for
example, that in some treatments of recurring idea-idea which comes again and again –
important elements have been overlooked. These practices are effective because they
facilitate comparison and recognition. This means that if these practices are used, they are key
for the improvement of the accuracy of a draft and if they are ignored, a given draft will
become obscure. Having said this much about the technique of consistency, let us proceed to
the next tool of improving the substantive policy of a draft.

2.3.2. Sound arrangement

The second major formal technique for ridding a legal instrument of many of its inadequacies
is to arrange it carefully and systematically. Although, like complete consistency, the best
possible arrangement is hardly to be achieved in the first draft, continuous and thoroughgoing
attention to the architecture of the instrument will do much to improve the substantive policies
that it is intended to serve. The reason is simply that good architecture directs attention to the
nature and relative position of each elements in the hierarchy of the client’s ideas . Being
logical, it contributes greatly to the equality of treatment that most legal instruments are
intended to achieve.

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The very advantage of hierarchal arrangement is that it helps produce the most significant
juxtapositions of functionally related ideas. These, in turn, facilitate the most significant
comparisons. We are talking here about the fundamentals of architecture – arrangement.

2.3.2. Normal Usage

The third major formal technique in legal drafting that you are going to employ for exposing
hidden inadequacies is to make sure that the words and phrases of the instrument have been
used in their normal general senses. Making an instrument free from significantly abnormal
uses will make its basic inadequacies more apparent, simply by clarifying what the instrument
says.

To conclude these three principles – consistency, sound arrangement and normal usage – are
the most important tools in legal drafting, because they not only contribute to greater clarity
and readability, but, in so doing, tend to improve the document as an instrument of
substantive change.

2.4. THE ROLE OF DEFINITIONS FOR SUBSTANTIVE CLARITY

Previously we have seen that the draftsman must have direct concern with substantive policy.
Despite the fact that the draftsman cannot absolutely take the place of his client regarding the
outcome of the legal drafting, he has to understand the policy consideration of the client. He
has to fully associate himself with the policy of his client. Not only this suffices to come up
with a good legal instrument, however. The draftsman has to employ such important tools as
consistency, sound arrangement and normal usage we have seen under the foregoing
discussions. In addition to those instruments, definitions also play remarkable roles in
improving the substantive clarity of a given legal instrument. This being the case, therefore,
we are going to see the role of definitions and their kinds under the following subsections.

2.4.1. The Role of Definitions

In a legal instrument, a definition should be used only to explain the meaning that a term is
intended to carry. Although this advice might seem to be obviously sound, many draftsmen
disregard it.

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The first thing to remember about definitions in legal instruments is that they should be used
only when necessary and should be used only as full as necessary. It is hard, and often risky,
to try to formulate definitions that describe the ways in which the drafts man actually uses the
defined terms else where in the same instrument. (It is apparently easier to use words properly
than to define them accurately). Draftsmen are prone to (exposed to) the problem of defining
a word in one sense and then without realizing it, use it in a very different sense. The main
use of definitions in legal instruments is, of course, to achieve clarity and consistency without
burden some repetition. Just as every word in any legal instrument ought to play its own role,
every definition ought to be limited to filling a real need.

To conclude definitions are important in upgrading the clarity and understandability of a

given legal instrument. But they must be used only when the need for definitions is felt.
Usually, the need for definitions is felt more in legislative instruments than private legal
instruments in Ethiopia. Proclamations almost invariably contain definitions. The same is
true with regulations. Even sometimes directives contain definitions.

2.4.2. Kinds of Definitions

Some authorities divide definitions into “real” and “nominal”, Because the former relate to
the refinement and crystallization of concepts rather than to the meanings of words, many
persons do not consider them to be definitions at all. Nominal definitions are called “lexical”
in so far as they assert meaning corresponding to actual usage in the given speech community.
Lexical definitions attempt to record usage. Simulative definitions attempt to create it.

Definitions can be usefully classified in terms of their methods. Whether lexical or simulative,
the following kinds of definitions are useful in legal instruments.

a. Definition by synonym: this definitions is not frequently used. In spite of this, it is

occasionally useful. Under this kind of definition, a term is used by equating it to a
more familiar term whose meaning is presumably sufficiently clear to the audience to
whom the instrument is addressed. For example, the term fracture means break.
break.
b. Definition by Analysis: under this definition, the draftsman defines the subject in
terms of (1) a parent class (2) a subclass (3) the features that distinguish the subclass
from others of the same parent class. For example, the term "cosmetic" means an

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 article intended to be applied to the human body to cleanse or beautify it or change its
appearance.” Such a definition must apply to all the individual members included in
the subject.
c. Definition by synthesis: This is when the draftsman defines a term by relation to some
thing which it is a part. For example, the term 'window' means a part of a house.
d. Denotative definition: this is definition by listing all or some of the things to which the
term refers. Here particular characteristics are ignored. Such a definition may be
exhaustive (e.g. the term 'narcotic drug' means opium, coca leaves, cocaine, Isopecaine
opiate, or a salt, derivative, or preparation of any of those products) or partial (e.g. The
term narcotic drug includes coca leaves)
The above definitions are essential for a legal draftsman to come up with a legal
instrument of higher quality and clarity.

Before concluding this part, it is good to put a question as to what kind of definition a legal
draftsman should choose in a particular case. Should he choose the method of synonym,
analysis, synthesis or denotation? If denotation, should he make the definition exhaustive or
partial? The problem in each case is purely one of selecting a method that is no more
complicated or elaborate than necessary to deal with the relevant doubt or uncertainty in the
minds of his audience. If he is creating a new technical term for a complicated idea, he will
probably choose a comparatively detailed analytic definition. Any ways, in each case, he tells
his audience all that he thinks it needs to know, but no more. Definition for its own sake has
no place in legal instruments.

2.4.3. Uses of Stipulative and Lexical Definitions

Under the preceding discussions, we have already said that nominal definitions are lexical
definitions so long as they assert a meaning corresponding to actual usage in a given speech
community. They are called stipulative in so far as they declare a meaning different from
actual usage. In spite of such differences, these types of definitions are useful in legal
drafting, which can be understood by thoroughly examining the true purpose of definitions in
legal instruments. Because a legal instrument is not intended to replace the dictionary, one
that hews as closely as possible to accepted usage need not define only those terms that it
uses. Instead, it need define only those terms for which accepted usage in the given speech

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community is inadequate to carry the intended message. A lexical definition is thus necessary
only where a partially established usage is not still gaining full acceptance, competing usages
cause threats of ambiguity, or a critical element of established usage is not sufficiently plain.

Stipulative definitions, on the other hand, are necessary on two general kinds of occasions.
One is when the instrument deals with a new concept for which usage has not yet established
a name. Here the draftsman may even have to create a term. In this case, he should avoid a
term whose established connotations are sufficiently similar to and at variance with the
intended meaning to create the strong likelihood of confusion.

A Second, and more often necessary, use of stipulative definitions is to resolve uncertainties
in the cloudy areas surrounding vague terms. A full and more precise definition may be
substituted for a looser meaning of accepted usage in which case, it is partly lexical and partly
stipulative (e.g. under this regulation ‘mobile home’ means a vehicle or other portable
structure more than 100 meters long that is designed to be moved on the high ways and
designed or used as a dwelling). Or a partial definition may be used to resolve a specific
marginal uncertainty, in which case, it is wholly stipulative (e.g. under this proclamation
'automobile', includes an amphibious passenger motor vehicle).

2.4.4. Formal Aspects of Definitions

A legal definition should show whether it is intended to be exhaustive or partial. In the case
of exhaustive definitions the draftsman should use the word “means” in the latter the word
“includes”. Although he should never use the ambiguous expression “means” and “includes”,
he may follow an exhaustive definition in which he uses the word with a supplementary
partial one in which he uses the word “includes”.

The word “means” is normally followed by a comparable equivalent to what precedes it.
Sometimes, it is not possible to use a comparable equivalent. In this situation, the words
“refers to” may often be used.

Finally, we have to bear in mind that definitions should be placed where they are most easily
found. A term that is used only in one title should be defined at the beginning of the title. A

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term that is used only in one section should be defined in that section. A term that is used
throughout instruments should be defined at or near the beginning of the instrument.

Check Your Progress Exercise

1. Is a draftsman expected to understand the substantive policy of his client? Why?

……………………………………………………………………………………………
……………………………………………………………………………………………
2. What do you understand by substantive policy?
……………………………………………………………………………………………
……………………………………………………………………………………………
3. What is the difference between partial and exhaustive definitions? Have you ever
noticed any law which has used partial or exhaustive definitions or both?
……………………………………………………………………………………………
……………………………………………………………………………………………
4. Mention kinds of definitions and discuss each as exhaustively as possible.
……………………………………………………………………………………………
……………………………………………………………………………………………
5. As a draftsman, what would your tools be for improving substantive policy of your
client?
……………………………………………………………………………………………
……………………………………………………………………………………………
6. Write short notes on the following:
a) Consistency
b) Sound arrangement
c) Normal usage
…………………………………………………………………………………………
…………………………………………………………………………………………
…………………………………………………………………………………………

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7. Why do you think are definitions used in legal drafting? Should we always use
definitions when we prepare a legal instrument? Why?
…………………………………………………………………………………………
…………………………………………………………………………………………
8. One scholar pointed out that a draftsman, with regard to substantive policy, is an
“intellectual eunuch”. Do you agree with this statement? Why or why not?
…………………………………………………………………………………………
…………………………………………………………………………………………
9. Where should definitions be placed in a given legal instrument?
…………………………………………………………………………………………
…………………………………………………………………………………………
10. Define the following terms:
a) Denotative definitions
b) Analytic definitions
c) Synonymous definitions
………………………………………………………………………………………
………………………………………………………………………………………
………………………………………………………………………………………
11. Assume that you are working under a public office and are asked to draft a directive
regarding personnel administration of that public office. Would you use definitions
when you prepare this instrument? Why? If you use definitions, what kind of
definition? Why?
…………………………………………………………………………………………
…………………………………………………………………………………………
12. Where do you expect to find definitions of most proclamations in Ethiopia? At the
beginning? In the middle? At the end? Why do you think is such a position
preferred?
……………………………………………………………………………………………
……………………………………………………………………………………………
……………………………………………………………………………………………

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2.5. SUMMARY

As you may understand, under this unit efforts have been exerted to introduce you with the
ideas of the draftsman's concern with substantive policy of his client. Although a draftsman,
when seen apparently, seems to be a mere instrument of his client, he has to understand the
policy adopted by the client so that the exact intentions of the client could be reduced or
translated into a tangible legal instrument. To achieve this desired goal, the minds of the
client and the draftsman should necessarily meet. If this is not the case, what the draftsman
has drafted and what the client has in mind to be drafted may be two different things. Hence,
the draftsman should understand the intention of his client before writing any part of the legal
istrument.

In addition to understanding substantive policy of his client, the draftsman should employ
such tools as consistency, sound arrangement and normal usage which are instrumental in
improving the substantive policy of the draftsman's client.

The other thing that is given attention under this unit is discussion about definitions. Besides
the above tools for improving the quality and understandability of a given legal instrument,
definitions have also to play remarkable roles in this regard. That is why a few pages were
devoted for the discussion of definitions.

As we have mentioned earlier, definitions are classified as “real” "nominal" and again as
“lexical" or "stipulative”. Other classification is also into synonymous definitions, analytic
definitions, definitions by synthesis and denotative definitions.

Definitions are very important in a legal instrument to achieve clarity and understandability.
But this does not mean that they are always included in a legal instrument. For instance, if you
have a look at the Ethiopian Constitutions, past and present, they have never included
definitions.

A legal draftsman can choose one or two or more of the above definitions in a given legal
instrument as he thinks appropriate. Once he has chosen the kind of definition, the next thing
that he has to determine is whether his definition should be exhaustive or partial.

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Regarding the position of definitions, they must be placed where they can easily be found.
The general rule is that definitions which are applicable only under a section should be
defined at the beginning of that section, if they are applicable only under one title, they must
be defined at the beginning of that title. If, on the other hand, they are to be applied to the
whole instrument, it is advisable that they be put at the beginning of the instrument.

2.6. ANSWERS KEY TO CHECK YOUR PROGRESS EXERCISE

1. Yes, the draftsman, before he is going to pick his pen up and write a single provision,
has to fully understand what his client wants. This means that the draftsman, before
reducing the ideas and wants of the client into a written document, should fully grasp
what his client requires him to do. Unless there is concordant of mind between the client
and the draftsman, the instrument that is going to be drafted will not reflect what the
client wants but rather it would be the draftsman’s own version. Hence, unless the
draftsman fullflagedly understands the substantive policy of his client, what he drafts
will remain to be an exercise in futility.
2. Refer Section 2.2.
3. Refer Section 2.4.2.
4. Refer Section 2.4.2.
5. Refer Section 2.3.
6. Refer Section 2.3.
7. Refer Section 2.4.1.
8. Refer Section 2.2.
9. Refer Section 2.4.4.
10. Refer Section 2.4.2.

2.7. MODEL EXAMINATION QUESTIONS

1. What would happen if a draftsman fails to understand the substantive policy of his
client?
2. Discuss the roles played by definitions in legal drafting.

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 3. Though the drafts man, in drafting a legal instrument, is acting on behalf is client, it is
good that he understands the subject matter that he is going to draft. Do you agree?
Why / why not?

2.8. GLOSSARY

1. Exhaustive - thorough; complete; comprehensive.

2. Lexical - connected with words of a language
3. Substantive - An essential part of constituent or relating to what is essential-

2.9. SELECTED REFERENCES

1. Reed Dickerson, Materials on legal Drafting; (Horn Book Series, 1986)

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

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