Graeme Johnston / 26 May 2023
Reading Colin Burrow’s new review (“Algorithmic Fanboy”) of Lorraine Dalston’s recent book (“Rules: a short history of what we live by”), I’m drawn back into a topic of central fascination for me over the last thirty years.
How, in short, can we make requirements and expectations accessible and meaningful, yet also predictable? The issue arises with laws, project plans, codes of conduct, computer code and many other things.
There many past works and encounters with legal rules that have helped me figure out what’s going on. Two with the ‘r’ word in the title which I would particularly recommend, because of their unexpected angles, are Twining’s Doing Things with Rules and Graeber’s Utopia of Rules.
The problem, in short, is that such artefacts are modelling a complex world in inevitably simplified form.
Old playbooks for handling this problem in law was
- Set out clear simple rules, then mitigate their harsher effects by limiting who can invoke or apply them and by adding fictions, secondary systems and workarounds (old common law examples include benefit of clergy and equity).
- Set out vaguer, but succinct rules, then leave them to be interpreted and applied by people who can be trusted to do so in line with the expectations of the stakeholders whose views are influential in the society in question.
A development of this was to
- Publishing legal material more openly. This has developed over time. Good modern examples are the National Archives’ efforts in the UK – over a decade ago with legislation and much more recently with case law.
- Publish the interpretations of priest-like group of authorised interpreters, be they judges ruling on specific cases, or writers developing doctrine (the common law has leaned towards the former, the civil law to the latter, though the differences shouldn’t be exaggerated).
There are obvious limitations of these approaches. Modern variations include:
- Write laws in more accessible language.
- Train decision-makers more consciously, rather than just expecting them to absorb the ethos of more established decision-makers. The Judicial College is an English example of this.
These can both help. As a 1980s example, contrast the opening phrase of the EU Product Liability Directive:
- “The producer shall be liable for damage caused by a defect in his product”
with the cumbersome equivalent in its UK implementing legislation:
- “Subject to the following provisions of this Part, where any damage is caused wholly or partly by a defect in a product, every person to whom subsection (2) below applies shall be liable for the damage.”
The EU version communicates the basic idea then elaborates, whereas the older style of UK legislation (such as that example) encrusts it with obscuring detail.
Such drafting techniques, however, only go so far. A further strategy has proved attractive to the modern rule-maker:
- Issue more detailed rules and requirements with binding force, ostensibly to increase predictability and curtail human discretion.
Modern legal systems have typically accreted an overwhelming body of material of this sort. Even for experts in the field, it can be inaccessible. Burrow’s review summarises the transition:
“A pre-modern ‘thick rule’ might be akin to the instructions you’d give someone who knows how to cook when telling them how to make your favourite pasta. They’d have the experience to be able to supply the unstated details (chop up the garlic before you put it in the pan, get a saucepan out, turn on the gas). ‘Thin’ rules, by contrast, typically address very specific circumstances, and would include the kinds of detailed regulation that stop you taking your hamster or your shaving foam on a flight to New York. One of Daston’s wider historical claims is that ‘thick’ rules – rules in the form of broad paradigms to emulate or as general guides to practice – tend to give way to the ‘thin’ rules of modernity, designed to placate the officious traffic warden who lurks within all authorities, which ‘assume complete uniformity in execution and conditions of application’. She relates this gradual thinning down of rules to the development of the modern nation-state, which both required and enabled unity of practice across broad geographical regions.”
Problems of the super-detailed approach include inaccessibility, inflexibility and vulnerabilities to clever attempts to come within the letter but not the spirit of the law. The loophole problem.
And if you’re a skilled navigator of such rules, you can often find key discretions buried away under the complicated superstructure. Not so different from the old approach after all, just more hidden.
In short, complication begets more complication and with that comes expense, delay and increased risk of unintended problems, both substantive and procedural. Lawyers, like the producers of rule-based systems, easily forget this.
One promising answer to this is to keep the rules higher-level but issue guidance and examples in accessible form to illustrate their application.
- The UK’s Bribery Act guidance is a simple example of this.
- The English Solicitors Regulation Authority’s current approach is to lay down high level principles and supplement them with regularly revised guidance and examples, such as this one on the working environment.
- The US FTC’s blog is an example of how to add a further layer with a lighter tone but serious substance.
Sometimes, indeed, one has the impression that complication is seen as a feature not a bug, whether by the authorities (see the immigration rules) or by the well-resourced (see the tax rules).