Pre-legislative scrutiny during the drafting process:

A case for linguistic auditing

Abstract

Several pre-legislative quality-control measures exist to ensure the drafting process delivers necessary and well-written laws. Despite these measures, some bills and acts still contain mistakes that could hinder subsequent statutory interpretation and construction. A few of these mistakes are language based. A case in point is South Africa’s Cannabis for Private Purposes Bill and the way it describes the offence of smoking/consuming cannabis in a vehicle on a public road (sec. 5(5)), in relation to the definitions of the words place and vehicle (sec. 1). The word vehicle can be interpreted as both a place and a transportation device, which obscures the offence in sec. 5(5). A means to try and prevent such semantic anomalies before a bill is published for comment is to apply a linguistic audit as part of the pre-legislative scrutiny stage in the drafting process. A linguistic audit entails the use of various linguistic tools and theories informed by the language challenges in the draft. As an illustration, this article employs the cognitive linguistic “container schema” to better understand the polysemous interpretation of the word vehicle as both a place and a transportation device. In addition, the article proposes four potential linguistic instruments as tools for a linguistic audit, namely componential analysis, functional hyponymy, prototype theory, and limited syntactic analysis. The article starts by reviewing the drafting process, followed by an explanation of the purpose of definitions in legislation. The focus then shifts to a discussion about the potential meaning of vehicle in the Bill, followed by a description of the lexicological approach to drafting. The article concludes that a language audit could assist courts in their continuation of the drafting process through interpretation and construction.