Jeffrey Barnes, Law and Legal Studies, La Trobe University
When we study law we are engaged, says Goodrich, in a "very specialised form of literary pursuit". A defining aspect of primary sources of law is their capacity for enforcement in courts and statutory tribunals. Yet some provisions in legislation lack that capacity even though situated in the "operative" part of an Act. What then is the function of these provisions? Like the experience of the dream described in Bruce Beaver's poem "Out of the Race", they exist by "breathing between two worlds". Whether flowing from the expressed intention of the drafter or from judicial interpretation, the provisions appear to be merely exhortatory. They have political, rather than typically legal functions.
This paper critically examines the "legal paradigm" when applied to legislation - that, to uphold the rule of law, all statutory directives must have the force of law. The paper seeks to widen our understanding of the functions of legislation by examining various types of legislative exhortation. It analyses both the purposes of the provisions and the techniques employed by drafters to give the provisions a degree of force. It also considers how the provisions are given meaning, both by courts and by the addressees.