Wednesday, October 27, 2010
There is a clear trend for law and regulation, particularly in the computing and communications sector to become increasingly detailed. The perceived benefit of this approach to lawmaking is increased certainty as to compliance, but that uncertainty may be illusory. There are serious disadvantages to over-complex laws, particularly in that their normative effect is greatly weakened but also in terms of over-complexity, contradiction and too-frequent amendment. The combined effect of these disadvantages can be to produce a “bad” law system, assessed in terms of Fuller’s internal morality of law. It may also result in a law-system which substantially fails to achieve its intended aims. This paper proposes that these defects can be cured by abandoning the search for certainty. In its place we should substitute a method of lawmaking which requires the law’s subjects to make their own qualitative assessments as to whether they were meeting the obligations imposed on them. This will not only make the law more easily understandable by those to whom it applies, but will also increase the normative effect of computer and communications law.
Download the paper from SSRN at the link.