Why don't law collections show who the author of the law is?

Question

When reading laws of the Swiss government it just says: "The federal council decrees x,y,z.". Now I'm wondering who the author of some text was and there seems to be no way to find out. I'm sure it was not the federal council itself, they just signed the documents at the end, but how can one figure out who the actual author of a law was?

Answer 1

Laws are collective works that often have multiple authors.

Law do not have, in general, a single author, although minor, uncontroversial legislation that passed more or less unanimously without much debate, and very short laws that are never amended successfully, can sometimes have had a single dominant author.

Often, the process is that a legislator or constituent suggests an idea. A lobbyist or governmental staff person or lawyer or law professor, who remains nameless, often actually prepares the first draft (although there are rare cases where a non-legislator drafter is well known, such as in the case of the French Civil Code and the Field Codes in the United States and some of the "Uniform Laws" drafted by famous law professors and adopted by multiple U.S. states in the United States). Multiple legislators may introduce or sponsor a first draft. Additional amendments are made by others and voted on collectively before the final draft. And, then, the final draft becomes law after a final vote by a group of people and often a signature from a President or monarch or head of a collective legislative body or the clerk of that legislative body.

It also isn't uncommon for several people to have legislative ideas that are floating around in early draft form that are combined into a single final comprehensive piece of legislation with multiple chapters or parts that have distinct initial authorship.

Researching the legislative history of a single enactment.

Usually, it is possible to research the legislative history to learn who introduces a bill, who voted for it, who proposed amendments, and who decreed it into law. Often, this is done by researching the daily minutes of the legislative bodies and committees and sub-committees involved in the drafting of the law at different stages of the process in the archives of the legislative bodies involved in passing the legislation.

Sometimes this is done for close questions of interpretation of an ambiguity in the law if all other means of statutory interpretation are exhausted and the meaning of the law is still unclear. This is a painstaking and time consuming process. But since that rarely matters to the use of the law or its application by judges, this information is not generally included in a legislative codification used on a day to day basis.

Less commonly and reliably, but often more helpfully, media reports at the time the legislation was being considered discuss who was involved in the legislative process (and who opposed the legislation) and what their goals were with respect to the legislation. Likewise, media reports from the time a ballot issue is introduced until it is adopted can inform what the arguments for and against the legislation were important to the voters at the time that the ballot issue was considered which can inform its interpretation. Memoirs of people who had some involvement in the political process also sometimes disclose this information.

Researching the legislative history of a codified statute.

Also, many statutes were initially enacted in one version and then amended at various times with subsequent legislative enactments.

Most codifications show this part of the legislative history so that one can know what the statute said in the year to which it is being applied (which is often not the year in which the court makes the decision when one of looking at the validity of a marriage, or a real estate transaction, or whether a building was built in compliance with the building codes then in force, or the correct amount of taxes due in a given year, or the correct date of release from a criminal sentence).

Often, it is necessary to research the original legislative enactment documents to learn exactly how the effective date language is phrased, as this language is often omitted from a codification of statutes.

Answer 2

canada

Public acts

The legally relevant portions of the legislative process are public acts, not dependent on the identity of the person who actually chose the words, if such an individual could even be identified. These public acts are summarized at the House of Commons backgrounder on legislative process. They include:

• Introduction and First Reading (the initial presentation of the bill to the House)
• Second Reading (substantive debate about the scope and principle of the bill) and referral to committee
• Consideration in committee (generally, hearing evidence and witnesses about the merits of the bill, a line-by-line review, and preparation of a report recommending adoption or amendments)
• Report stage (actual consideration of amendments proposed out of committee, or from other members)
• Third Reading and adoption (consideration of the final form of the bill)
• Consideration and passage by the Senate (the above steps are repeated in the Senate — and the entire process can instead be started in the Senate with the House taking the second look)
• Royal Assent (the Crown, through the act of the Governor General gives assent to the bill)

All of the above acts are public and recorded in the records of debate, committee minutes, and the Canada Gazette.

Preparation of the bill is generally a protected exercise of Cabinet

However, to even get a bill to First Reading, an initial draft of the bill must be drafted. Most bills are prepared and introduced by the government. This is in practice an all-of-Cabinet exercise, relying on public service expertise. The various steps were listed by Rowe J. in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40:

1. The department prepares analyses and plans; ministerial approval is required to proceed with policy consultations.

2. The Prime Minister reviews and approves machinery-related issues (where applicable).

3. The sponsoring Minister makes a decision on the policy options and recommendations to Cabinet.

4. The memorandum to Cabinet is prepared.

5. The memorandum to Cabinet is subject to interdepartmental consultation.

6. The memorandum to Cabinet is approved by the Deputy Minister and senior management.

7. The memorandum to Cabinet is approved by the sponsoring Minister, and sent to the Privy Council Office.

8. The Privy Council Office briefs the chair of the Cabinet Committee.

9. The Cabinet Committee considers the memorandum to Cabinet, and the Privy Council Office issues a Committee Report.

10. Cabinet ratifies the Committee Report, and the Privy Council Office issues a Record of Decision.

11. The Department of Justice prepares a draft bill with the assistance of the legislation section drafting team, the sponsoring department, and the departmental legal services unit.

12. The bill is approved by appropriate senior officials in the sponsoring department.

13. The sponsoring Minister reviews and signs off on the bill.

14. The Government House Leader reviews the bill.

15. The Government House Leader seeks delegated authority from Cabinet to approve the bill for introduction.

16. The Privy Council Office issues the bill.

While these are in furtherance of legislation, they are in another sense executive acts, taken behind the scenes, and many are protected by the constitutional convention of Cabinet secrecy or solicitor-client privilege.

Answer 3

It doesn't matter

The individual person who wrote a law is irrelevant to its application. The legislature that passed it matters, of course, but not the person who wrote it. It is important to know that a law was passed by the Federal Council; it is not important to know that it was written by Alice rather than Bob.

Answer 4

In the united-kingdom, there is one example I know of where authors are identified within the text of an Act. (There are also some historical laws often attributed by name, such as "Lord Brougham's Act" of 1850, but these are not reflective of current practice.)

Schedule 5 to the Criminal Procedure (Scotland) Act 1995 sets out some examples of indictments (strictly, "complaints") to be used in summary procedure, i.e. less serious crimes which are dealt with in a lower court and without a jury. Some of these examples include placeholder initials -

You did assault A.L. and strike him with your fists.
You did obtain from A.N. board and lodging to the value of £16 without paying and intending not to pay therefor.
You did steal a coat which you obtained from R.O. on the false representation that you had been sent for it by her husband.
Having received from D.G. £6 to hand to E.R., you did on (date) at (place) steal the said sum.

Putting these letters together in order, we get A.L.A.N. R.O.D.G.E.R., also known as Lord Rodger of Earlsferry, who was the main author of the Act. He was Lord Advocate (the chief public prosecutor in Scotland, and the government minister responsible for Scottish legal affairs), and later appointed himself as a judge in the Court of Session, eventually ascending to the Supreme Court. Other clauses in Schedule 5 give the names or initials of other lawyers who contributed to the drafting.

The secret message was not publicly acknowledged in Parliament or otherwise while the Bill was in progress, but knowledge of it has since circulated as folklore - partially from Lord Rodger himself who enjoyed sharing the anecdote.

For the general question, the responses in other answers are also true for UK practice. Principally,

1. For the validity of a law, it doesn't matter who the author was, so long as the text has been approved by Parliament as an institution.
2. It is generally difficult to say who the authors are, for a text that has been written and amended by a great many hands.
3. Courts can look beyond the text when there are interpretive problems (e.g. to a Law Commission report which informed the drafting of a bill), but the common "house style" for modern legislation means that "John Smith wrote section 13(a)(3)" is not a useful thing to know.

The Act of 1995 was one of a series of consolidation acts of the same year, so point 2 did not apply fully: this was not a contentious law and it was not substantially rewritten in its passage through Parliament.

Answer 5

switzerland

In Switzerland laws are written by the administration (upon a motion by parliament or an initiative by the voters) and then debated, modified and approved (or not) by the parliament (and, in case of referendums, by the voters). So the question of “who wrote a law” isn’t all that easy to answer (and actually not directly relevant, as any law has a lot of authors at the end).

If you wonder who initiated a specific law, who argued for and against it, and who voted what at the and, there’s the website of the Swiss parliament with the various motions, minutes from the debates, and documented votes.

Answer 6

united-states

This answer illustrates that "who wrote the law" is not a simple question in the United States.

Passing a Federal statute

In the US, one can look up the legislative history of a bill becoming a law. Let's look at a simple one, S.788 Duck Stamp Modernization Act of 2023.

The original bill can be authored by any number of people. Those authors are not listed, but it may come up in debate. It has a "sponsor" who is the representative which introduced the bill into the legislature, here it is Sen. John Boozman. This allows anyone to author a bill and have it considered by Congress if they can get a congressperson to sponsor it.

Then the bill can be amended. In this case Sen. Schumer proposed an amendment which agreed to by unanimous consent. The actual amendment may have been written by anyone, in this case probably one of Schumer's staff members. Amendments can also be proposed and edited in committee.

Then it is passed to the other house, in this case from the Senate to the House, for further consideration, debate, and amendments. In this case the House made no amendments, but they could have. Then the bill would be passed back and forth between the House and the Senate, possibly making more amendments, until they agree on one version of the bill.

After all that, if Congress and the President agree, it becomes law.

United States Code

What I described is technically a "statute". These are written as edits to the existing law. For example in our Duck Stamp Modernization Act...

(a) In general.—Section 5 of the Permanent Electronic Duck Stamp Act of 2013 (16 U.S.C. 718r) is amended—

(1) in subsection (a)—

(A) in the subsection heading, by striking “actual stamp” and inserting “electronic stamp”;

(B) in the matter preceding paragraph (1), by striking “an actual stamp” and inserting “the electronic stamp”; and

(C) by striking paragraph (1) and inserting the following:

“(1) on the date of purchase of the electronic stamp; and”;

(2) in subsection (c), by striking “actual stamps” and inserting “actual stamps under subsection (e)”;

(3) by redesignating subsection (e) as subsection (f); and

(4) by inserting after subsection (d) the following:

“(e) Delivery of actual stamps.—The Secretary shall issue an actual stamp after March 10 of each year to each individual that purchased an electronic stamp for the preceding waterfowl season.”.

With dozens or hundreds of such statutes passed each year making changing to the laws, one could not possibly operate by reading the statutes themselves. Instead, the changes are condensed into the United States Code or USC. They are organized into Titles with all edits required by statute applied.

Looking at USC 2022 Edition, Title 16 Subchapter IV-A Permanent Electronic Duck Stamp we see that 718r has yet to be amended with the new statute.

But wait, there's more!

Technically, "the law" is the original statutes. Practically, "the law" is the United States Code condensing the original statues into something humans have a hope of understanding. If there's any conflict between USC and the statute, the statute wins.

This is before we get into regulations, common law, case law, and established uses of terms within the law. Even Congressional debate about the bill can be considered when attempting to discern the intent of the law in court.

But, AFAIK, not the intent of the actual authors of the text, unless they were also debating the bill. For example, the intent of the authors of the U.S. Constitution is often relevant to legal interpretation, but they were usually also the ones debating and voting on it.

All this must be taken into consideration, and kept up to date, to really understand "the law". This is done and sold as annotated United States Code. It's a lot of work, and are quite expensive. The fancy looking books you see in every lawyer's office are likely copies of the annotated USC, though likely lawyers pay for electronic versions now.

Who wrote "the law"?

If we consider just the statutes, that would include...

• The person(s) who wrote the original bills.
• The person(s) who amended the bills.
• The person(s) who debated the bills.
• The person(s) who interpret the meanings of the statutes.

If we look at the United States Code, one can go section by section, paragraph by paragraph, word by word to find out the last statute to edit that text. That's a very mechanistic view of "who wrote the law?"

But that's not the whole of the law. As mentioned above, there's the regulations, case law, common law... really you need to know the authors of everything in the annotated USC, plus the editors of the annotated USC.