How to Make Bad Law: Lessons from Cyberspace
| Date | 01 November 2010 |
| Published date | 01 November 2010 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00824.x |
| Author | Chris Reed |
THE
MODERN LAW REVIEW
Volum e 73 Novembe r 2010 No 6
HowtoMakeBadLaw:LessonsfromCyberspace
Chris Reed
n
There is a clear trend for lawa nd regulation, particularly in cyberspace, to become increasingly pre-
ciselyspeci¢ed.The perceived bene¢t of this approach, increased certainty as tocompliance, may be
illusory. Over-complex laws have serious disadvantages, partic ularly a greatly weakened normative
e¡ect, and problemsof contradiction and too-frequent amendment.The combined e¡ect of these dis-
advantagescan be to produce a‘bad’ lawsystem, 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 article pro-
poses that these defects can be cured byabandoning the se archfor precision and substituting a method
of lawmaking which requires the law’s subjectsto maketheir own qualitative assessments of whether
theyare meeting the obligationsimposedon them.Thiswill makethe lawmore easilyunderstandable
by those to whomit applies, and will also increase the normative e¡ect of cyberspace law.
INTRODUCTION
This article is about bad law, and both those words have many meanings. For the
purposes of this discussion, laws are those rules which emanate froma rule maker
authorised by a state (including appropriately quali¢ed transnational bodies such
as the EU) as part of ‘the intentional activity of attempting to control, order or
in£uence the behaviour of others’.
1
‘Law’ in this sense i ncludes regulation, and the
terms are used synonymously unless the context makes one or the other more
appropriate.Thus I use the term‘lawmaker’without enquiring whether this usage
transcends the boundary (if any) between law and regulation.
2
Whether a law is good orbad is a value judgment which is strongly dependent
on the assumptions, valuesand motives of the person making the judgment. One
might reasonablyassert that lawsimposing motoring speedlimits are bad because
they are so frequently not observed,
3
or equally reasonably that they are good
n
Professor of Electronic Commerce Law, Queen Mary University of LondonSchool of Law, Centre for
Commercial LawStudies.My thanksare due in particular to GrahamSmith of Bird& Bird and Professor
Diane Rowland, who commentated on avery di¡erent version of this article at the Society for Computers
& LawPolicyForum September2009.Manyof the changesfrom thatversionwere inspiredby theircom-
ments, thoughof course responsibilityfor the remaining defectsremainswith me. MycolleagueProfessor
Christopher Millardhas madehelpfulcommentson an earlierdraftof this article,as havethe participantsin
the QueenMary seminarsat which it waspresented,and my gratitudeis owed to themas well.
1J.Black, ‘Critical Re£ections on Regulation’(20 02)27 Austl J Leg Phil 1, 25.
2On the distinction, or lackthereof, see ibid 29^34.
3Or because they are toohigh (or too low), or because theyare not set on a consistent basis, or for
many other reasons.
r2010The Author.The ModernLaw Review r2010 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(6) 9 03^932
because if theydid not exist motorists would drive even faster resulting in more,
or more serious, accidents.
4
However,it is possible to judge thequality of law from a speci¢cally legal per-
spective. A fundamental aim of any law, inhere nti n the de¢nition adopted for th is
article, is to in£uence behaviour to some useful end. Thus a law which fails to
achieve such in£uence is necessarily less good than one which does achieve its
aims.While there may still be disagreement about the quality, on this measure,
of any particular law, there is less likelyto be disagreement about the overall qual-
ity of a partic ular body of law (or law-system
5
).
The challenges posed to existing legal rules by cyberspace have led lawmakers
to respondby creating new rules. In doing so, they have needed to decide how to
frame those rules in relation to three linguistic dimensions: certainty/vagueness;
complexity/simplicity; and clarity/opaqueness.
6
Predominantly the choice has
been to aim at rules whose application is as certain as can be achieved through
legal drafting, withthe consequence that those rules are also complex. This com-
bination of certainty and complexity, henceforth termed ‘precision’ for ease of
reference, has a tendency to produce rules which are, ontheir face at least,
7
at the
opaque end of the spectrum. In general lawmakers do not aim deliberately to
make opaque rules,
8
and so the discussion here will focus onprecision alone.
The contention of this article is thatthe law-systemwhich attempts to regulate
activities in cyberspace is, taken as a whole, of a lower quality than could have
been achieved if the laws which constitute that law-system had been devised
more e¡ectively. One of the reasons
9
for this low quality is that the law-system
has concentrated on precision of rules to the exclusion of that basic morality, in
the sense of Fuller, which must underlie all systems of law.
THE CONSEQUENCES OF PRECISION
Across all ¢elds of law there is a clear trend for rules to become increasingly
detailed. As an example, the UK Companies Act 1948 consisted of 462 sections
and 18 Schedules, whereas the 2006 Act runs to 1,300 sections and 16 Schedules.
4Or because theyco ntroltra⁄c £ow,or alert drivers to potential hazards, etc.
5I adopt this term from A.Schmidt, ‘Radbruchin Cyberspace: about law-systemquality and ICT
innovation’ at http://ssrn.com/abstract=1423105 (last visited 7 January 2010).
6J.Black, Rulesand Regulators(Oxford:Clarendon Press, 1997) 22^24. See further F.Schauer,Play ing
by the Rules (Oxford: Clarendon Press,1991) 53^68.
7Apparent opacity can, of course, be clari¢ed in a regulatory model where obligations are nego-
tiated between a regulator and its regulatees, based on their common (and perhaps unstated)
understanding of how the regulated activities currently operate. How far such a model can be
applied to the law-systemswhich regulate cyberspace is examined below.
8Except, perhaps,where external factors such as the need for political compromise preventclarity
of expression. This is not u ncommon in EU legislation ^ see as an example the con£ict between
recital 13 and art 5(1)of Directive 2009/24/ECof the European Parliament and of the Council on
the legal protection of computer programs, OJ L111/16, 5 May 200 9.
9I haveexaminedsome otherreasonsin C. Reed,‘The Lawof UnintendedConsequences ^ embedded
business models in IT regulation’ (2007) 2 JILT at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/
2007_2/reed and C. Reed, ‘Taking Sides on Technology Neutrality’ (2007) 4:3 SCRIPT-ed 263 at
http://www.law.ed.ac.uk/ahrc/script-ed/vol4-3/reed.asplast visited 7 January 2010).
How to Make Bad Law
904 r2010The Author.The ModernLaw Review r2010 The Modern LawReview Limited.
(2010) 73(6) 903^932
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