How to Make Bad Law: Lessons from Cyberspace

Abstract:     
There is a clear trend for law and regulation, particularly in cyberspace, to become increasingly precisely specified. The perceived benefit of this approach, increased certainty as to compliance, may be illusory. Over-complex laws have serious disadvantages, particularly a greatly weakened normative effect, and problems of 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 article proposes that these defects can be cured by abandoning the search for precision and substituting a method of lawmaking which requires the law's subjects to make their own qualitative assessments of whether they are meeting the obligations imposed on them. This will make the law more easily understandable by those to whom it applies, and will also increase the normative effect of cyberspace law.

Number of Pages in PDF File: 30

Accepted Paper Series