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Details of the FB's book

Bennion on Statute Law

 

Longman, 1990   Doc. No. 1990.002 Book 21

 

Publishing details

 

Contents

 

Download the book - FREE!

 

Citations of BENNION ON STATUTE LAW

 

Reception of BENNION ON STATUTE LAW by the legal profession

 

Publishing details

 

Title Bennion on Statute Law
Subtitle None
ISBN 0 85121 580 7
Type of book Paperback
Number of Volumes 1
Number of Pages xl + 373
Name of Publisher Longman
   
Date of publication 1990
Reprinted No
Current edition 3rd
Previous editions 1st 1980, 2nd 1983
Supplements None
Current availability

Out of print. Secondhand copies may be available from booksellers on the Internet

The text of the book is available for download from this web page

 

Contents

 

(Click here if you wish to download any parts of the book FREE!)

 

The book is arranged in four Parts.


Part I Statutory Texts explains what statute law is, then describes the drafting of legislation. the arrangement of an Act of Parliament, statutory instruments, legislation of the European Communities, statute consolidation and revision, an the official publication of texts.


Part II Statutory Interpretation
describes the technique of statutory interpretation under common law systems, explaining that the criteria consist of (1) rules of construction, (2) principles derived from legal policy, (3) presumptions derived from the nature of legislation, and (4) linguistic canons of construction.


Part III the Need for Processing of Texts
explains the difficulties of the statute user and the vices that block comprehension. It then discusses in turn five doubt factors: ellipsis, the broad term, politic uncertainty, the unforeseeable development, and the fallible drafter.


Part IV Dynamic and Static Processing of Texts
explains the nature of dynamic processing of legislative texts, then describes first the administrative processor and then the judicial processor. It concludes by describing static processing of texts.


2.3.4.3. Citations of Bennion on Statute Law

 

The book has been widely cited. See for example the copious citations of it in

 

1992.001.REV ‘Using plain English in Statutes’, Clarity’s submission to the Hansard Society by David C. Elliott, June 1992.

 

1996.001.REV ‘Tax Law: Rules or Principles’ by John Avery Jones 17 Fiscal Studies (1996) pp. 63-89.

 

2000.002.REV E.H.Honduis, Koninklijke Nederlandse Akademie Van Wetenschappen, Mededelingen van de Afdeling Letterkunde, Nieuwe Reeks, Deel 64 no. 4, February 2000.

 

2002.003.REV Pierluigi Chiassoni, ‘Codici Interpretativi: Progetto di voce pe un Vademecum giuridico’, July 2002.

 

2004.009.REV ‘Codifying the Criminal Law’, Irish Department of Justice, Equality and Law Reform, November 2004.

 

Extracts from ‘A Unified Theory of Statutory Interpretation’ by R.N. Graham, Assistant Professor, Faculty of Law, University of New Brunswick. The text of the article is drawn from “A Unitarian Theory of Statutory Interpretation”, R.N. Graham, 1999, York University. That paper elaborates the ideas set out in this article by reference to the theories of deconstruction and critical legal studies.


26
Unlike Coté’s archaeologists, the “dynamo” refuses to see a statute’s meaning as an artifact to be discovered through the use of historical evidence. Instead, the dynamo sees the statute’s text as clay that can be shaped in ways that were not necessarily intended by the statute’s drafters. Where the requirements of logic, justice or political correctness suggest that an enactment should be interpreted in a way that differs from the drafters’ understanding of the language, dynamic interpretation permits the interpreter to select a construction that fits with current needs and departs from historical expectations. According to Coté, dynamic interpretation permits an enactment to be moulded in response to “needs which are identified at the time the rule is being applied, either with reference to the current rather than the historic will of the legislature, or with respect to what the interpreter considers is dictated under the circumstances”.51

 

Dynamism’s view of the statute as an organic, “evolutive” document is elegantly described through Francis Bennion’s nautical analogy:

‘. . . the ongoing Act resembles a vessel launched on some one-way voyage from the old world to the new. The vessel is not going to return; nor are its passengers. Having only what they set out with, they cope as best they can. On arrival in the present, they deploy their native endowments under conditions originally unguessed at.’52

27
According to this view of legislation, statutory language must grow and adapt in response to changing social conditions.

 

52 Francis Bennion, STATUTE LAW (London, England: Oyez Publishing Limited, 1980), 356.


57
The power to garner sufficient votes to ensure the passage of a Bill is not the only reason for using vague language. A second function of vague language is to demonstrate Parliament’s intention to grant discretion to the courts and other officials charged with the task of administering legislation. According to Francis Bennion:

‘By use of a word or phrase of wide meaning, legislative power is delegated to the processors whose function is to work out the detailed effect . . . until the details are worked out, it will be doubtful what exactly they are.’96

 

96 Bennion, STATUTE LAW, at 120.


Reception of BENNION ON STATUTE LAW by legal profession

 

All three editions were published by Longman. The first edition, published in 1980, was well received. A Lord of Appeal, Lord Cross of Chelsea, wrote-

Click here for the full text of this review

 

‘Mr Bennion is very well qualified for the task which he has undertaken. In the first place he was for many years one of the Parliamentary Counsel and so knows every aspect of his subject thoroughly from the inside. Secondly he has the gift not too common in writers on legal subjects of making rather dry bones live . . . I regard this as a very good and important book. It ought to be read and, I do not doubt, will be read, by Parliamentary Counsel. It ought also to be read, though I am less confident that it will be read, by judges in appellate courts who are constantly called upon to wrestle with problems of statutory interpretation. Finally, I hope that it may be read by many academic lawyers and encourage those who do not already do so to include the study of statute law in their courses.’ - Statute Law Review (1981) p. 122

 

Sir David Williams, Vice-Chancellor of Cambridge University, noted in the Law Society’s Gazette that academic study of the subject had recently increased. He added: ‘Bennion's book rounds off this burst of activity in a most useful and stimulating fashion’. He went on: Bennion's lively style carries the reader through both exposition and criticism. Whether or not you regard yourself as a word processor, you are one. Study of Bennion's work will make you a better one.’ Alec Samuels said in the Solicitors Journal that the author ‘has been a parliamentary draftsman here and abroad, has played an important part in developing understanding of statute law and its problems, and has advanced, as he does in this book, many original and stimulating ideas’. He added: ‘It is a marvellous book’. Professor P S Atiyah QC, FBA described it in his book Law and Modern Society as the leading modern book on legislation (p. 155).


The first edition also attracted attention overseas.


In Australia Stephen Mason wrote: ‘The book is limited to United Kingdom statutes, but this does not in any way detract from its usefulness to Australian readers . . .It is readable, witty and clearly structured’ - Australian Law Journal

In South Africa David Dyzenhaus said that the author’s ‘combination of talents’ made the book ‘eminently practical’. He thought it ‘will be deservedly influential’ - South African Law Journal (Click here for the full review.)


The success of the book made a second edition necessary in 1983. It was considerably altered, to take account of developments in the subject. The preface began-

 

‘This is a book about the need people feel to know where they stand. Having this recognised could be numbered among human rights, but few lawyers seem to take it seriously.’

 

It went on to complain of reluctance in the profession to consider the novel ideas the book presented, and said-

 

‘It is time for heads to go down, and for close attention to be paid to this subject. There is more to it than most people seem to think. It concerns the way our lives are lived, and merits concentrated care for that reason. Theories about rules in general are all very well, but statutory rules matter in a special way. They also possess special characteristics. If we are to take rights seriously, it is time we took statutes seriously.’

 

Among reviewers of the second edition, David Nelken wrote-

 

‘The arguments of the book, even at their most provocative, are clear, well organised and brilliantly documented. Bennion rightly emphasises and demonstrates the sheer intellectual difficulty of drafting and interpreting statute law . . . Bennion has a considerable insight into the dialectical relationship between the parliamentary draftsmen and judges . . . Certainly, he sometimes sounds like Jeremy Bentham as he berates politicians, lawyers, judges and draftsmen for their toleration and exploitation of obscurity. But, like Bentham, perhaps he too over-estimates the possibilities of reducing law to order’. - The Journal of the Law Society of Scotland

 

L S Sealy said -

 

‘Mr Bennion is well known as a former parliamentary draftsman who has written extensively on statute law, and as a founder of the Statute Law Society and its Chairman from 1977 to 1979 . . . His latest book, STATUTE LAW . . . is naturally enough written from a stance of some authority and with the clarity of expression one would expect from so experienced a wordmaster . . .’ - Cambridge Law Journal

 

Benedict Birnberg wrote –

 

‘ . . . until Francis Bennion, whose career as a Parliamentary Counsel has been spent in drafting legislation, emerged on the scene, there was little critical analysis of statute law. Bennion has been largely instrumental in raising the study of statute law to a specialisation and in establishing the Statute Law Society. He has long been an advocate of a more rational and methodical approach to statute law and he has now produced a book in which he sets out lucidly an analysis and critique of our traditional methods of writing our laws . . . Statute Law fills an amazing gap in our understanding of the mysteries and myths of law-making.’ - The Freethinker

 

Again, there was overseas interest.

 

Graham Parker wrote –

 

‘Bennion suggests quite rightly that the judges do make law. It is simply a legal fiction to think otherwise but he is suggesting that we should try to regularise this process . . . He is aiming at some kind of synthesis. While Driedger gives us much valuable information, his book lacks this vision.’ - The Canadian Bar Review

 

The preface to the third edition explained that the work was now complemented by the addition of a detailed section distilled from Bennion’s major work STATUTORY INTERPRETATION, first published by Butterworths in 1984 (fourth edition 2002). The third edition of BENNION ON STATUTE LAW marked a wholly new approach to this vexed subject, which has since gained general acceptance by the legal profession. The preface said-

 

‘The essence of my new treatment of statutory interpretation is to anchor the subject firmly within the main currents of law. Instead of attempting to get by with rules of thumb like the so-called ‘mischief rule’, ‘golden rule’ and ‘literal rule’, it appears that the law really requires the matter to be treated more seriously and thoroughly. Legislative enactments bring in by implication all relevant rules and principles of law, and must be interpreted accordingly. In a particular case it may be necessary to apply numerous interpretative criteria . . . A balancing exercise must then be carried out.’