The turn of the 18th century was a time of optimism and complacency in England. The constitutional settlement of 1689, which had established the requirement for the crown to seek parliament’s consent, largely ensured the preservation of the ruling classes’ interests, leading Roland K Wilson to later claim that the period did not see a single statute that honestly intended to promote the public’s well-being.
The common law was also in an almost fossilised state. Extremely complicated rules of procedure, and asinine and obsolete rules of evidence were present, delaying resolution of disputes while making justice costly for the common man.
It was around this time that a young, precocious Jeremy Bentham attended a lecture of the venerable William Blackstone, whose Commentaries on the Laws of England are still a mainstay in legal education. Bentham, however, instantly spurned Blackstone and his ecstatic adulation for the English legal system. For Bentham, the near obsolete features of 18th-century English law and its lack of interest in systematic codification of statutes were as much a consequence of the reactionary attitude of those in power as it were a result of the preference of lawyers and lawmakers to benefit financially. In his view, the law should not be an esoteric realm, navigable only by the initiated, but a transparent guide for society, illuminating the path to righteousness with the light of wisdom.
In acknowledgement of this pronounced state of disarray, he resolved to dedicate his life to the pursuit of legal reform. In his Introduction to the Principles of Morals and Legislation (1789), Bentham famously stated that “nature has placed mankind under the governance of two sovereign masters, pain and pleasure… The principle of utility recognises this subjection, and assumes it for the foundation of that system, the object of which is to rear the fabric of felicity by the hands of reasons and of law.”
Given that the primary objective of a legislation is to safeguard the rights and expectations of individuals, it is essential for all laws to be readily understood by everyone and be readily available to them. To him, the judge made law, which he believed led to the law becoming inaccessible and incognisable, and was “dog-law” that had to be reformed and codified for the larger good.
While his confidence in the promise of codification of law as a tool for social change might have been exaggerated—with realisation of the constraints inherent in codified statutory provisions—the fundamental premise has nonetheless remained intact and broadly accepted. We continue to evaluate laws based on their practical effectiveness, cognisability and the outcomes they produce. Where reform is warranted, we typically seek to implement them through systematic legislative processes.
Consequently, the fundamental tenets of the rule of law, as we see them today, demand that citizens have a reasonable opportunity to understand the rules that bind them. As Lon L Fuller famously argued, legal directives must be comprehensible, clear, and relatively stable in order to effectively guide conduct and maintain legal legitimacy. After all, law is not merely about having rules on paper—it requires genuine fidelity to principles of legality in both form and practice.
Frequently, however, our statutes appear to be complex mazes rather than straightforward guides, characterised by sophisticated yet convoluted terminology, intricate yet obtuse and obscurantist provisions, and opaque, vacuous cross-references that hinder a clear comprehension. As Lord Radcliffe had intoned in 1950, “A sort of hieratic language has developed by which the priests incant the commandments. I seem to see the ordinary citizen today standing before the law like the laity in a medieval church: at the far end the lights glow, the priestly figures move to and fro, but it is in an unknown tongue that the great mysteries of right and wrong are proclaimed.”
This plague of legislative complexity seems to be alive and well even today. It not only undercuts the basic Fullerian principles of legality but also raises grave concerns from the standpoints of due process, equal protection, and separation of powers. When the law becomes unintelligible to all but a priestly caste of lawyers and judges, it ceases to function as a meaningful check on state power and devolves into a tool of capricious tyranny.
The legislature, however, is not expected to—and should not—trade clarity for simplicity and of course, no process can completely eliminate all indeterminacy and ambiguity. What is expected of the legislature, rather, is a vigorous commitment to plain English in drafting. Such an approach could go a long way toward alleviating the widespread confusion and inequity that arise from our complex statutory framework. The use of active voice, shorter sentences and clearer structure can transform incomprehensible legalese into accessible text without sacrificing precision. The costs of complexity—in compliance burdens, litigation expenses and a weaker rule of law—are simply too high to continue with business as usual.
As such, the efforts of the government to reform laws, especially the very obtuse Income Tax Act, is laudable. The new Income Tax Bill seeks to reduce redundancies and length of provisions, while attempting to keep the drafting style “straightforward and clear”. For a legislation that has seen more than 4,000 amendments, it is obvious that effort has been made to reform the legislative framework to prioritise not only linguistic clarity but also structural coherence.
What is equally important, one must add, is the understanding that a law’s authority also stems from its integrity—its coherence with fundamental principles of fairness, informed deliberation and due process. In an era of mounting social complexity and eroding trust in public institutions, the legitimacy of the law depends on its ability to be understood, to be deliberated on and applied by those it governs.
(Views are personal)
(saaisudharsans@gmail.com)
Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court