These various elements constituting legislative technic appear to be so numerous and diversified, even if we confine ourselves consciously to the "internal and substantial side" only, that one cannot think of giving an exhaustive description. No doubt it will suffice to attempt a summary outline, so as merely to show the nature and importance of the legislative task in this respect.
1. Some of these parts refer exclusively to general legislation. First, after the necessity for statutes occupying the entire field of legal life has been established, it will become necessary to fix the essential nature of the work to be undertaken. Is it to be simply a consolidation and compilation of legal rules already in force, or instead a real codification which will destroy, by absorption, the whole or a portion of the body of law as it existed theretofore? Whichever way the decision goes, it will be necessary to determine the extent of the body of statutes to be drawn, and then to distribute them among a number of parts ("codes"), which in turn must be conveniently subdivided. Again, each of the parts will have to be arranged on some plan or system in which one may proceed according to very diverging lines. Notably in the case where the legislator is to confine himself to what is commonly known as a civil code, it will be well to choose a manner of subdividing which is very closely adapted to the end in view. The codification, either as a whole or in some of its subdivisions, may either leave intentional gaps, or on the other hand proceed upon the idea of covering as completely as possible the whole province of the law to which it refers. And if the last-named plan is adopted, one must not forget to devise some method by which the completeness desired may be achieved and yet the work be kept purely juridical by excluding from the entire body of statutes and its various portions every foreign element.
2. By the side of these and similar questions peculiar to the technic of codification there are seen others which are still more nice and delicate, and constitute the real problem of legislative technic. They arise after those described above have been solved, and generally in connection with every kind of written law, when it becomes necessary to determine how the law shall be drawn in order to correspond to the purpose in view. It would seem that all these elements of technic, thus common to all written laws, may be referred to three principal classes which in their order of definiteness are as follows: general character of the legislation intended; intrinsic nature of the legal provisions; style and terminology of the text which is to express them.
(a) The general character of the legislation will be fixed principally by the answers given to the following questions: Are we to confine ourselves simply to giving a legal rule proper, or shall we supplement this by a preamble stating the reasons for the law in an indisputable and official manner? Shall we invariably give direct commands or refer frequently from one section to the other? Shall the text be written in ordinary language or shall we give it a scientific and technical form? Is it better to give concrete rules or shall we prefer abstract general rules to express the meaning of the legislator?
(b) The last-mentioned question carries with it still other problems concerning more directly the intrinsic nature of legal rules. In this connection one must, first of all, make certain whether the statute may deal with theoretical concepts, or should rather concern itself with mere rules regarding practical conduct. Further, what part shall be played in the act by the various logical means of expressing the ideas contained in legal provisions, such as definition, classification, and the like? Again, shall the statute be imperative or prohibitive, shall it give a permission or actively enforce a command? Finally, one will have to determine to what extent fictions, presumptions, and other artificial devices are to be employed in order to insert into the legal provision notions which it may be deemed inexpedient to express directly.
(c) The most clearly defined part of the technical problem is the consideration of the style or phraseology and the terminology which are to be employed in drawing a statute or other written law. For we must pay attention not only to the ordinary questions arising with all forms of literary style and make our choice between brevity and length, conciseness or diffuseness, condensation of the thought at the risk of becoming obscure, or clearness with a certain unavoidable degree of verbosity. Our object is to draw certain formulas that will plainly express the will of the legislator, and for that purpose we cannot escape the necessity of seeking for the linguistic and grammatical forms best adapted to doing so. Probably we shall also discover that our rules require a different syntax accordingly as they are of imperative, prohibitive or permissive, or auxiliary nature, and this different form of expression may be found to have a bearing on certain intricate questions, such as for instance the burden of proof.
Above all other things, the question has to be settled whether it will be enough to employ popular language with all its inaccuracies and ambiguities, or whether it will not be better to make use of a special terminology invented for that purpose, derived from the traditional stock of legal expressions, but accentuating its clearness and definiteness, and to take care that each term is constantly used in precisely the same sense; so that its rigid limitations may prevent as much as possible any vacillation in interpreting it.
These are the grand outlines of legislative technic as distinguished from that which I have called fundamental legal technic. The latter will necessarily be made use of by the former, as for instance in the use of fictions and presumptions. Legislative technic as here defined will not include certain special applications of technical methods, such as for instance the special technic of declaratory statutes, repealing acts, and also such matters as the "schedules" or temporary provisions of acts, the manner of their promulgation, etc.