Juridification is the Enemy of Legality

Modern governments, their hands increasingly tied by the robber-barons of global finance, often try to assert their power with their feet: by kicking out at another high-profile social problem, real or imagined, with another big policy initiative. Usually they come up with an accompanying raft of new laws. Legislative incontinence prevails. Not only is much of the legislation futile and even counterproductive from the start, we are also left with ever more relics of now-forgotten reforms. Between 1997 and 2006, for example, more than 3000 new criminal offences were enacted for England and Wales, while only a tiny number were repealed.2 In spite of promises from later governments to turn over a new leaf, and maybe even to thin out the statute book, the trend towards throwing new laws at every moral panic that hits the newspapers or social media continues apace, and without much sign of official appetite for tidying up of the resulting statutory flotsam. The criminal law of other jurisdictions appears to have fallen victim to similarly wild legislative abandon. The Illinois criminal code, for example, grew from 23,970 words in 1961 to 136,181 words in 2003, not counting a further 153,347 words covering felonies (never mind misdemeanours) that accumulated outside the code.3 While growth in the number of offences may not be quite as extreme as growth in the number of words, it must still be extreme.

Most of us escape the daily consequences of this massive but pathetic display of legislative machismo only because the law is erratically enforced. This means that in two distinct ways we are not living under the rule of law. First, there is so much law, touching on so many aspects of our lives, that it would be impossible for us to grasp it all, or to follow it even if we could grasp it. Even as a qualified lawyer I can’t keep up with the politicians in their impotent zeal to put a stop to things. Every day, I am pretty sure, I commit some petty offences, maybe when I am riding my bicycle or putting out the recycling bins or paying a babysitter. But of what the offences are and how I commit them I am not so sure. It would take a disproportionate amount of time and effort to find out, and it would be impossible to remember what I found out anyway. So even I, legally trained, don’t get to use the law as a guide to staying on the right side of it, and even I, legally trained, am increasingly vulnerable to being unexpectedly ambushed by its rules. Such potential for ambush, which makes the law a poor guide for those who are trying to conform to it, is anathema to the rule of law.

Second, as a consequence of the situation I just described, we increasingly rely on petty officials such as tax inspectors and police officers to turn a blind eye to some violations of the law while coming down hard on others. Since there is no way that all this junk law could be enforced consistently, there is increasing pressure for it to be enforced selectively, and increasing latitude for the selection to be done by fear or favour. So big corporations with police-like security departments can enjoy cozy relations with the police that are denied to those who inconveniently protest against their corporate power. This kind of selectivity is also anathema to the rule of law. Under the rule of law, it shouldn’t be one law for the powerful and another for the rest of us. Even News Corporation, the Murdoch media empire, was pursued in the UK for its phone-hacking and similar wrongs only because they made the silly mistake of upsetting some very big cheeses. You may say it was always thus. I don’t deny it. I only say that the huge expansion of legal regulation is part of what props it up so effectively today. So much law means lots of extra openings to enforce that same law unevenly, including for reasons that are dubious, shadowy, or corrupt. That is not the rule of law but rather what Aristotle correctly placed in opposition to it, namely the rule of man.

1. The sheer breadth of laws renders ‘the law’ in its entirety, unknowable.

2. This vastness means that the law cannot be enforced evenly.