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HYPERLEXIS AND THE RULE OF LAW

Published online by Cambridge University Press:  07 July 2021

Vincent Chiao Open the ORCID record for Vincent Chiao [Opens in a new window]
Vincent Chiao*
Affiliation:
University of Toronto, Toronto, Canada
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Abstract

On a popular understanding, the rule of law is valuable because it enables people to plan their lives. However, planning conceptions of the rule of law are undermined by the sheer quantity of legal rules, regulations, and policies characteristic of modern administrative states. Under conditions of hyperlexis, people cannot reasonably be expected to reliably use the law as a guide to conduct. Rather than conclude that the rule of law is inimical to the administrative state, however, I defend an alternative conception of the rule of law. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials in the exercise of their legal powers. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.

Type
Research Article
Information
Legal Theory , Volume 27 , Issue 2 , June 2021 , pp. 126 - 148
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press

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Footnotes

*

I am grateful to Emad Atiq, Jeff King, Margaret Martin, Alice Ristroph, and an anonymous referee for extensive and valuable comments, as well as to participants at workshops at Fordham, Northwestern, and Ono College. I am also grateful to Anne Marshall for research assistance.

References

1. Waldron, Jeremy, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 137 (2002)Google Scholar.

2. See Endicott, Timothy, The Impossibility of the Rule of Law, 19 Oxford J. L. & Juris. 1, 2 (1999)Google Scholar (describing capacity to guide behavior as the “organizing principle” of the rule of law).

3. As Raz puts it, a person “obeys the law only if part of his reason for conforming is his knowledge of the law.” Joseph Raz, The Rule of Law and Its Virtue, in The Authority of Law 214 (2009).

4. F. A. Hayek, The Road to Serfdom (Bruce Caldwell ed., U. Chi. Press 2007) (1944), at 75–76.

5. Hayek, The Road to Serfdom, supra note 4, at 77.

6. Id. at 79–80. See also Hayek, The Constitution of Liberty (1960), at 222 (“[A]ll coercive action of government must be unambiguously determined by a permanent legal framework which enables the individual to plan with a degree of confidence and which reduces human uncertainty as much as possible.”).

7. Lon L. Fuller, Anatomy of the Law (1971), at 88; see also Fuller, The Morality of Law (1969), at 35–36, 53 (“[l]aw has to do with the governance of human conduct by rules”).

8. Murphy, Colleen, Fuller and the Moral Value of the Rule of Law, 24 Law & Phil. 239, 241 (2005)CrossRefGoogle Scholar.

9. Jeremy Bentham, Truth Versus Ashhurst; or, Law as It Is, Contrasted with What It Is Said to Be, in 5 The Works of Jeremy Bentham 231 (John Bowring ed., 1843).

10. John Locke, The Second Treatise: An Essay Governing the True Original, Extent, and End of Civil Government, in Two Treatises of Government and A Letter Concerning Toleration 137, 161 (Ian Shapiro ed., 2003). See also Scalia, Antonin, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989)CrossRefGoogle Scholar.

11. Raz, supra note 3, at 214. Raz has recently revised his account of the rule of law, acknowledging that “while the law aims to guide, its ability to do so is much less securely connected with the rule of law principles . . . than is often assumed.” The Law's Own Virtue, 39 Oxford J. Legal Stud. 1 (2019).

12. Maxeiner, James, Legal Certainty: A European Alternative to American Legal Indeterminacy, 15 Tulsa J. Int'l L. 541, 545 (2007)Google Scholar.

13. The term appears to have been coined by Bayless Manning. See Manning, Bayless, Hyperlexis: Our National Disease, 71 Nw. U. L. Rev. 767 (1977)Google Scholar; see also Schuck, Peter, Legal Complexity: Some Causes, Consequences, and Cures, 42 Duke L.J. 1 (1992)CrossRefGoogle Scholar and, more recently, Sohoni, Mila, The Idea of Too Much Law, 80 Fordham L. Rev. 1585 (2012)Google Scholar.

14. Hadfield, Gillian, Higher Demand, Lower Supply? A Comparative Assessment of the Legal Resource Landscape for Ordinary Americans, 37 Fordham Urb. L.J. 129, 131–132 (2010)Google Scholar. Skepticism about the degree to which people actually know the law stretches back at least to Austin's time. See John Austin, Lectures of Jurisprudence (1879), Lecture 25, 497.

15. 78,755, to be precise. The United States Code can be downloaded here: http://uscode.house.gov/download/download.shtml. The downloaded set of files occupies 185MB.

16. Lisa B. Crawford, The Rule of Law in the Age of Statutes, 48 Fed. L. Rev. 159, 165 (2020).

17. Id. at 169; see also Anthony Burrows, Thinking About Statutes: Interpretation, Interaction, Improvement (2018), ch. 3.

18. This figure is drawn from the President's Economic Recovery Advisory Board's Report on Tax Reform Options: Simplification, Compliance, and Corporate Taxation 3 (August 2010), https://www.treasury.gov/resource-center/tax-policy/Documents/Report-Tax-Reform-Options-2010.pdf.

19. Crawford, supra note 16, at 162, 164.

20. James Chalmers & Fiona Leverick, Quantifying Criminalization, in Criminalization: The Political Morality of the Criminal Law 54, 65, tbl.2.1 (R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo & Victor Tadros eds., 2014). However, the large majority of these offenses pertain to people in specialized roles rather than to the general public. Id. at 74, tbl.2.8.

21. John Baker, Revisiting the Explosive Growth of Federal Crimes, The Heritage Foundation (June 16, 2008), https://www.heritage.org/report/revisiting-the-explosive-growth-federal-crimes.

22. Burrows, supra note 17, at 116; Guido Calabresi, A Common Law for the Age of Statutes (1982).

23. Manning, supra note 13, at 770.

24. Dan-Cohen, Meir, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984)CrossRefGoogle Scholar.

25. Goodin, Robert, An Epistemic Case for Legal Moralism, 30 Oxford J. Legal Stud. 615, 622 (2010)CrossRefGoogle Scholar. However, as Crawford has noted, one might question this assumption, in part because a significant number of officials may occupy high-turnover positions that do not allow for the development of expertise, in part because of the substantial costs in time and resources of keeping up to date with the law, and in part because rational and coherent legislation becomes much more difficult in the face of hyperlexis. Crawford, supra note 16, at 182. A recent member of the Law Commission for England and Wales reports that, prior to consolidation, sentencing law was so complex that many trial judges—presumably, “experts” on sentencing—were imposing unlawful sentences. Burrows, supra note 17, at 113.

26. Denvir, Catrina, Balmer, Nigel J. & Pleasence, Pascoe, When Legal Rights Are Not a Reality: Do Individuals Know Their Rights and How Can We Tell?, 35 J. Soc. Welfare & Fam. L. 139, 146, 154 (2013)Google Scholar (finding that a majority of respondents had “partial” or complete ignorance of their rights (n = 1,760), and that 58 percent of those who initially claimed to know their rights were able to accurately describe them in a follow-up question).

27. Sandy Jung, Heather Ahn-Redding & Meredith Allison, Crimes and Punishment: Understanding of the Criminal Code, 56 Can. J. Criminology & Crim. Just. 341, 341–366 (2014).

28. Heather Ahn-Redding et al., What Do Students Really Know About Criminal Justice?, 41 Int'l J. L., Crime & Just. 405, 414 (2013). Although respondents were able to correctly classify cases of sexual intercourse with a 15-year-old as prohibited, they were no better than random in cases involving 16-year-olds.

29. John M. Darley, Paul H. Robinson & Kevin M. Carlsmith, The Ex Ante Function of the Criminal Law, 35 Law & Soc'y Rev. 165, 190 (2001). Exceptionally, Texans appeared to know that Texas law allows the use of deadly force in defense of property. Id. at 175. However, neither length of residence nor level of education appeared to improve knowledge of law. Id. at 176–177.

30. Julian V. Roberts, Nicole Crutcher & Paul Verbrugge, Public Attitudes to Sentencing in Canada: Exploring Recent Findings, 49 Can. J. Criminology & Crim. Just. 75, 89 (2007) (reporting a “general lack of awareness” of mandatory sentences in Canada); Kirk R. Williams, Jack P. Gibbs & Maynard L. Erickson, Public Knowledge of Statutory Penalties, 23 Pac. Soc. Rev. 105, 105–128 (1980).

31. M.W. Patry et al., When Both Sides Are Mistaken: Layperson and Legal Professionals’ Misconceptions of Canadian Suspects’ Legal Rights Upon Arrest, 32 J. Police & Crim. Psychol. 56, 56–65 (2017).

32. Catrina Denvir et al., Informed Citizens? Knowledge of Rights and the Resolution of Civil Justice Problems, 41 J. Soc. Pol. 591, 599 (2012).

33. See Jo Casebourne et al., Employment Rights at Work – Survey of Employees 2005, Employment Relations Research Series, No. 51 (London: Department of Trade and Industry, 2006) (finding variable levels of knowledge regarding a range of employment rights in the United Kingdom); Anne Barlow et al., Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (2005) (finding high levels of ignorance about whether cohabitating couples in the United Kingdom qualify as married); Hazel Genn et al., Tribunals for Diverse Users, Department for Constitutional Affairs Research Series 1/06 (London: Department for Constitutional Affairs, 2006) (finding weak levels of understanding about the operation of, and access to, a range of specialized tribunals).

34. It may (or may not) be true that the criminal law would become significantly more difficult to enforce if ignorance of the law were a more widely recognized excuse. However, that is a distinct question from whether people are reasonably expected to know the law.

35. Hadfield, supra note 14, at 146. As Hadfield puts it, Americans “face a legal world that is thick with legal structure but thin on legal resources.” Id. at 151. See Hazel Genn, Paths to Justice: What People Do and Think About Going to Law (1999), ch. 3 (finding that a minority of people facing “justiciable problems” sought professional legal advice).

36. See IRS 1040 and 1040-SR, Instructions (2019), https://www.irs.gov/pub/irs-pdf/i1040gi.pdf. As recently as 2008, the IRS estimated that average filers were spending over twenty-six hours—more than half a working week—on tax preparation. See IRS 1040 Instructions 89 (2008), https://www.irs.gov/pub/irs-prior/i1040gi--2008.pdf.

37. See François Vaillancourt, The Cost to Canadians of Complying with Personal Income Taxes, Fraser Institute 17 tbl.4a (Apr. 2010), https://www.fraserinstitute.org/sites/default/files/cost-of-complying-with-personal-income-taxes.pdf.

38. Tax Reform Options, supra note 18, at 3. Other estimates have put the figure closer to $200 billion, or 1.2 percent of GDP. Youssef Benzarti, How Taxing Is Tax Filing? Using Revealed Preferences to Estimate Compliance Costs 3 (NBER Working Paper 23903, Oct. 2017), http://www.nber.org/papers/w23903.

39. Tax Reform Options, supra note 18, at 41. Sellers of consumer tax preparation software have spent significant sums lobbying against efforts to simplify tax filing through the use of pre-filled forms, a practice used in Great Britain, Japan, Denmark, Sweden, and Spain. See Farhad Manjoo, Would You Let the I.R.S. Prepare Your Taxes?, N.Y. Times (Apr. 15, 2015), https://www.nytimes.com/2015/04/16/technology/personaltech/turbotax-or-irs-as-tax-preparer-intuit-has-a-favorite.html.

40. Manning, supra note 13, at 769.

41. Douglas Husak, Overcriminalization (2007).

42. See R.A. Duff, The Realm of Criminal Law (2018), at 22 (“[t]he law rather presupposes that we already had ample, normally conclusive, moral reasons to refrain from such wrongs—reasons to which it does not purport to add”), 208 (“the initial way in which the substantive criminal law . . . aims to dissuade us from wrongful conduct is a matter not of deterrence, but rather of reminding us of the good reasons that we already have to refrain from the conduct that it defines as criminal”). See also Goodin, supra note 25 (and note Goodin's alternating references to law as a “guide” to conduct, and law as “tracking” morality).

43. Fuller, The Morality of Law, supra note 7, at 59 (describing criminal law as “most obviously and directly concerned with shaping and controlling human conduct”), 92 (observing that rule-of-law values are less significant when “law merely brings to explicit expression conceptions of right and wrong shared in the community”).

44. See Frederick Schauer, The Force of Law (2015), at 49 (“When the law tells me to do what I would have done anyway, the law's commands are no more causally consequential than commanding my highly food-motivated dog to eat . . . . If we are interested in obedience to law, we must focus on law's effect on people who, but for the law, would have done something other than what the law commands.”).

45. My thanks to Aziz Huq for this point.

46. Margaret Martin, Judging Positivism (2014), at 132.

47. As Chalmers and Leverick put it, “there are so many criminal offences that the consolidated list would be of little practical use to anyone, particularly as many regulatory offences might appear almost meaningless were they to appear stripped of context.” Quantifying Criminalization, in Criminalization: The Political Morality of the Criminal Law 55–79, 78–79 (R.A. Duff, Lindsay Farmer, S.E. Marshall, Massimo Renzo & Victor Tadros eds., 2014).

48. Casey, Anthony & Niblett, Anthony, The Death of Rules and Standards, 92 Ind. L.J. 1401 (2017)Google Scholar.

49. Contra Raz, who regards safeguarding the rule of law as the special province of courts and the legal profession. See Raz, supra note 3, at 226.

50. Crawford, supra note 16, at 170.

51. Waldron, supra note 1, at 159.

52. Brian Tamanaha, On the Rule of Law (2000), at 15–46.

53. That said, after conceding that it is unreasonable to expect that everyone will know all the laws, Fuller briefly acknowledges that publicity can facilitate contestation. Fuller, The Morality of Law, supra note 7, at 51.

54. In a similar vein, Philip Pettit distinguishes (direct) “interventional” control over government from (indirect) “virtual” and “inhibitory” control. See Pettit, Philip, Depoliticizing Democracy, 17 Ratio Juris 52, 62 (2004)CrossRefGoogle Scholar; see also Philip Pettit, Democracy, Electoral and Contestatory, in Designing Democratic Institutions, NOMOS XLII 105–144 (Ian Shapiro & Stephen Macedo eds., 2000). Standards of review, such as “arbitrary and capricious” in the United States and “reasonableness” elsewhere in the common law world, serve a similar function of incentivizing decision-making that is rational in the sense of being attentive to both the scope of an agency's delegated powers and attentive to the evidence before it in a particular case. See, e.g., Motor Vehicle Mfrs. Ass'n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

55. Jeremy Waldron, The Concept and the Rule of Law, 43 Ga. L. Rev. 1, 8 (2008).

56. Id. at 56.

57. T.M. Scanlon, What We Owe To Each Other (2000), ch. 1.

58. This account of contestability is indebted to Alon Harel's account of the “right to a hearing.” Harel analyzes that right into three incidents: the right to voice a grievance, the right to reasons addressing that grievance, and the “principled willingness” to change one's conduct in light of that grievance. See Alon Harel, Why Law Matters (2014), at 205.

59. “Dieses Gesetz kenne ich nicht”, sagte K. “Desto schlimmer für Sie”, sagte der Wächter. “Es besteht wohl auch nur in Ihren Köpfen”, sagte K., er wollte sich irgendwie in die Gedanken der Wächter einschleichen, sie zu seinen Gunsten wenden oder sich dort einbürgern. Aber der Wächter sagte nur abweisend: “Sie werden es zu fühlen bekommen.” Franz mischte ein und sagte: “Sieh, Willem, er gibt zu, er kenne das Gesetz nicht, und behauptet gleichzeitig, schuldlos zu sein.” Franz Kafka, Der Prozess (S. Fischer ed., 1983), at 11. [“I am not familiar with this law,” said K. “So much the worse for you,” said the guard. “It exists only in your head,” said K; he wanted, somehow, to creep into the guard's thoughts to turn them to his advantage, or take up residence there. But the guard merely said, dismissively, “You will get a feel for it.” Franz spoke up and said, “See, Willem, he admits he doesn't know the law while simultaneously claiming to be innocent.”] (My translation.)

60. This is the upshot of Wittgenstein's “private language argument.” Ludwig Wittgenstein, Philosophical Investigations (G.E.M Anscombe trans., Blackwell 4th ed. 1953), §§244–271.

61. I have been focusing on formal characteristics of statutes and regulations that facilitate contestation. Requirements that courts, tribunals, and officials possessing discretionary powers provide reasons for their decisions perform a similar role by enabling meaningful judicial review. See, e.g., N.L.R.B. v. Metro. Life Ins. Co., 380 U.S. 438, 439 (1965); Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am. v. N.L.R.B., 455 F.2d 1357, 1369–1370 (D.C. Cir. 1971); R v. Sec'y of State for the Home Dep't, ex parte Doody, [1994] 1 AC 531 at 565; Newfoundland & Labrador Nurses' Union v. Newfoundland & Labrador (Treasury Board), 2011 SCC 62, para. 18.

62. Waldron, supra note 1, at 150.

63. Screws v. United States, 325 U.S. 91, 128 (1945) (Rutledge, J., concurring) (“statutory specificity has two purposes, to give due notice that an act has been made criminal before it is done and to inform one accused of the nature of the offense charged, so that he may adequately prepare and make his defense”). Fuller appeared to at least tacitly recognize this point as well. While Fuller generally stresses the conduct-guiding aspect of law, he also acknowledged law's significance in resolving disputes ex post. See Fuller, The Morality of Law, supra note 7, at 55.

64. However, since a successful challenge to an established a norm is prone to unsettle expectations, the value of contestation is not in all cases aligned with the value of planning.

65. Tamanaha, supra note 52, at 114.

66. A.V. Dicey, Introduction to the Study of the Law of the Constitution (8th ed. 1982), at 198.

67. An “unfortunate outburst of Anglo-Saxon parochialism,” as Judith Shklar once put it. Judith Shklar, Political Theory and the Rule of Law, in The Rule of Law: Ideal or Ideology 1, 5 (Allan Hutchinson & Patrick Monahan eds., 1987). Shklar wryly observes that “[i]f [English] liberty hung on so slender a thread as the avoidance of new courts to deal with new kinds of cases, the end was indeed at hand.” Id. at 6. See also Dicey, supra note 66, at 332, 338–339.

68. Endicott, supra note 2, at 18.

69. Paul Gowder, The Rule of Law in the Real World (2016), at 8.

70. Contestation is thus a broader concept than Harel's “right to a hearing,” which is specifically judicial in character. Harel, supra note 58, at 191–224.

71. I am indebted to Margaret Martin for discussion on this point.

72. This connection is particularly clear on contestatory models of democratic control. See, e.g., Philip Pettit, On the People's Terms (2012), at 239–292.

73. Raz, supra note 3, at 226.

74. Scott Shapiro, Legality (2011), at 394.

75. Waldron, supra note 55, at 59.

76. The question of whether to construe the rule of law formally or substantively is controversial. For more substantive approaches, see Gowder, supra note 69; Sempill, Julian, Ruler's Sword, Citizen's Shield: The Rule of Law and the Constitution of Power, 31 J. L. & Pol. 333, 333–415 (2016)Google Scholar.