Following Legal Rules: Visibility and Feasibility

This paper reflects on the idea of ‘visualization’ of legal rules as part of an account of rule following in action. Presenting an alternative to Van Schooten’s (Jurisprudence and communication. Deborah Charles, Liverpool, 2012) account of interpretation, I first distinguish between two modes of interpretation: rehearsing and discursive. I argue that the former is the more basic one, relating to our respecting sources, rather than noticing signs, in action. In other (Wittgensteinian) words, we have to understand how we take guidance from rules. This account can profit from an analysis of what ‘seeing’ amounts to. Taking my cue from Merleau-Ponty, I point to the intertwinement between agent and world in seeing, in rule-following, and eventually in legal rule-following. The proof of the pudding is an alternative account of the time-honoured paradigm of legal interpretation: Hart’s ‘no vehicles in the park’. I show how this example is predicated on detecting ‘depth-clues’ in a rule, which allow an agent to correlate his vantage point to a vanishing point of a rule. The example illustrates a key-feature of rule following: reflexivity. I cannot follow a rule unless I project myself into its picture.     

“有错必纠”的界限

通过行政法学界20多年的共同努力,有关行政决定确定力和撤销规则的学理框架已经相对成熟。这个学理框架内容是,行政机关作出的行政决定产生实质确定力之后,如行政机关认为它有错误必须予以撤销的,应当遵循若干撤销规则,不能基于"有错必纠"原则而随意行使撤销权。但是,从最高人民法院相关的行政裁判、批复和答复的内容看,最高人民法院一直秉持"有错必纠"原则,并没有受到这一学理框架内容的明显影响,直到作为指导性案例的"焦案"在《最高人民法院公报》上公布,它才改变了原有所持的观点。通过"焦案"所确立的规则是,依法作出的行政决定一旦生效,其法律效力不仅及于行政相对人,也及于行政机关,不能随意被撤销。已经生效的行政决定如果随意被撤销,不利于社会秩序的恢复和稳定。从"焦案"之后地方各级人民法院作出的相关裁判看,作为指导性案例的"焦案"其参考效力并不明显,"有错必纠"原则仍然有着相当大的影响力。这可能与指导性案例欠缺可操作性、强势的成文法传统等原因有关。尽管如此,"焦案"所确立的撤销规则仍然具有它的价值,这种价值不仅显示出学理对实务的影响力,也体现了法治观念的进步。     

Has machine learning rendered simple rules obsolete?

European Journal of Law and Economics - Epstein (Simple rules for a complex world, Harvard University Press, Cambridge, 1995) defended the superiority of simple legal rules over complex,...     

Financial crisis, effective policy rules and bounded rationality in a New Keynesian framework

This paper extends a standard open-economy New Keynesian model to include a third-generation “balance sheet effect” which is made operational through an endogenous risk premium impacting on investment. Using rational expectations and adaptive learning solutions, the efficiency of alternative monetary policy rules is examined during a period of financial crisis. We find that the Taylor rule is the welfare superior policy, questioning the idea of an “information encompassing” inflation-forecast based rule. Under adaptive learning we find additional policy traction and less instrument variability in rules augmented with the exchange rate. All rules, however, advocate a sharp initial interest rate response to the crisis.     

Simple rules for the developing world

Much of the discussion in favor of simplicity of legal rules and against complex regulation is rooted in economically developed countries with strong state capacity. With economic development and state capacity comes the presumption that complex rules will be enforced. Therefore, analysis focuses on the administrative and error costs, and the unintended consequences of complex rules that are enforced. This paper argues that the Epsteinian insight is even more relevant to the developing world where countries often lack enough state capacity to even take on simple governance tasks. Developing countries often have less than 20 percent of the state capacity of developed countries. However, this does not mean they limit the regulatory structure to a fifth of the tasks. Under-enforcement or non-enforcement of complex rules imposes different costs and unintended consequences on society. Using examples from India, this paper highlights problems of enforcement swamping, deadweight loss, and corruption arising from the under-enforcement of complex rules. To avoid these problems, the paper concludes that a fortiori less developed countries should favor simple rules.

     

The alleged distinction between euthanasia and the withdrawal of life-sustaining treatment: conceptually incoherent and impossible to maintain

Richard Epstein, in his book Mortal Peril, supports euthanasia and assisted suicide and rejects the distinction between them and withdrawal treatment. In this essay, Professor Orentlicher argues that Epstein is correct in finding no meaningful moral distinction between euthanasia and treatment withdrawal, examines the reasons why the distinction has persisted in American jurisprudence, and explains why the distinction has eroded. Epstein also concludes in his book that there is no constitutional right to euthanasia or assisted suicide. Professor Orentlicher's response is that constitutionality is not the appropriate inquiry; rather, the better question is whether to recognize a right to assisted suicide once a right to euthanasia in the form of terminal sedation already exists. He answers this question in the affirmative, arguing that assisted suicide enhances patient welfare and reduces risks of abuse in a world with euthanasia.     

Should rules be simple?

The principal argument of the paper is that in an incomplete information setting, where the private sector lacks information of government objectives and has to learn about the policy rule by direct observation and estimation, simple ‘sub-optimal’ rules may outperform the more complicated rule which is optimal under complete information. This result is demonstrated by simulations using an overlapping contract rational expectations model. The paper thus provides some formal reasoning to support arguments for simplicity associated with credibility and the need for the private sector to be able to monitor policy.     

The art of law (and the law of art) is perpetual crisis

In this performance-based work, which essentially concerns the fable of ‘Khi + Ordo’, we obliquely—through visual-textual storytelling—focus on what we call ‘the agency of the artist-scholar’, deconstructing, inter alia, many of the rules and regulations associated with the art-academic industrial complex—i.e., the institutional dictates to produce commodifiable works, the enforced metrics associated with authorised forms of research and publication, and the often-inelegant and mostly unnecessary dance that the artist-scholar performs with ‘all of that’. The photo-essay is developed from the archive of the Out of India Collective (OOI), but in association with the Metropolitan Transmedia Authority (MTA), its successor collective. It draws upon documents associated with OOI experiments in transmedia undertaken across multiple submissions for residencies, exhibitions, and publications in both academia and the art world in the years 2017–2019, even as it focuses upon the fable of ‘Khi + Ordo’. ‘Ordo’ is a synonym (or metaphor) for totalitarian states and regimes—‘regimes’ being, in this case, those that rule art + law. ‘Law’ here infers, through its negation, the appearance of a higher law, one that is entered upon when one resists assimilation to the rules and regulations associated with police states—incipient or otherwise. We call that other law ‘works-based agency’, and the artist-scholar is beholden to it once s/he departs company with all such quotidian systems of abject hegemony. One crisis leads to another, so to speak, on multiple levels and all at once.

     

法律世界观紊乱时代的司法、民意和政治——以李昌奎案为中心

李昌奎案代表了一类"简单的""难办案件",无论法官如何决策,处理结果都不能取得良好的法律效果和社会效果。该案反映出这是一个法律世界观缺乏整体性和融贯性的时代。民意、司法与政治之间复杂的互动,以及社会对刑事司法系统的不信任,虽非中国特有的问题,但暴露出部分中国司法人员和学者对司法公信力、合法性、稳定性的理解是单维、偏颇的,缺乏健全的司法理念。经由对该案的讨论,本文强调,司法应该弥合而不是加大法律与社会的差距,如果司法要参与社会变革,它必须满足民众对公正的基本心理需求。另一方面,新媒体的兴起,使人们得以在事件流中辨识法律的社会意义,多元的法律世界观有可能获得融贯。     

Rational choice attitudinalism?

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.     

‘Fear’ and ‘Hope’ in Graphic Fiction: The Schismatic Role of Law in an Australian Dystopian Comic

The rise in popularity in recent times of dystopian fiction (particularly among young adults) is reflective of contemporary anxieties about law: the inhumanity of judicial-coercive machinery; the influence of corporate power; the lack of democratic imagination despite the desperate need for political reform; and the threat of order imposed through violence and victimisation. These dystopian texts often tell fear-inducing stories of law’s failure to protect; or of law’s unsuccessful struggle against unbridled power; or even sometimes of law’s ‘bastardised’ reconstruction. Indeed comics, with their visual and narrative intricacies, thrive on dystopia as a key vehicle for contributing to collective notions of fear and trembling about the future. Yet, at the same time, these texts also contain within them the blueprints for hope—the idea that with transformation, heroic intervention, and/or faith in ‘justice’, the law will ultimately prevail. Law’s ability to be transformed is thus simultaneously portrayed as society’s downfall (when manipulated and disrupted), AND as the key to enlivening humanity (when redeemed and restored). This article attempts to understand this schismatic role of law as presented in the recent dystopian comic book series From Above by Australian creator Craig Bruyn. In this series set in futuristic Melbourne, where law has given way to an unaccountable corporate rule, the social divide is made manifest by the absence of ‘order’, ‘law’ and ‘justice’ in certain segments of society, and yet hope in law’s return is ever-present. The paper will interrogate expectations of law and justice that is mediated through the complex interaction of fear and hope, and contextualise this within current contemporary anxieties.     

On the efficiency of the common law: an application to the recovery of rewards

Richard Posner’s influence on the field of law and economics cannot be overstated. Among his many contributions, Posner offered an early conjecture that remains fascinating and controversial to this day: the idea that common law rules are more likely than legislative codes to be concerned with efficiency. In this paper, I compare the efficiency of a common law rule of contracting to the efficiency of a civil law rule. In common law jurisdictions, claimants must have knowledge of a reward in order to recover. In civil law jurisdictions, however, no such knowledge is required. I analyze the efficiency of each rule by examining the incentives created by each rule. In a finding that agrees with Posner’s hypothesis, I argue that the common law rule is more efficient. The model has a number of applications beyond contract default laws. I use the model to discuss three legal questions previously analyzed by Richard Posner: (1) incentivizing innovation; (2) the finders-keepers rule in property law; and (3) salvage rights in maritime law.     

规则与礼仪:来自特罗布里恩社会的启示——《西太平洋上的航海者》述评

《西太平洋上的航海者》是马林诺夫斯基的民族志名著,作品立足于文化的特殊性与人性的复杂性,从功能主义视角出发,勾勒了特罗布里恩群岛的社会结构和与之密切交织的文化现象,分析了社会系统各构成要素之间相互配合的关系,把特罗布里恩人约定俗成的各种规则、礼仪生活传统与追求社会信誉的生活态度梳理出来,尤其是对社会交换的经典案例库拉作...     

Bright‐Line Fever: Simple Legal Rules and Complex Property Customs among the Fataluku of East Timor

Recent law and economics scholarship has revived a debate on bright‐line rules in property theory. Economic analysis asserts a baseline preference for bright‐line property rules because of the information costs if “all the world” had to understand a range of permitted uses, or deal with multiple interest holders in a resource. A baseline preference for bright‐line rules of property arises from the cost of communicating information: all else being equal, complex rules suit smaller audiences (e.g., contracting parties) and simple rules suit large audiences (e.g., property transactors, violators, and enforcers). This article explores the circumstances in which a simple rule, purportedly for a large audience, takes on interpretive complexity as it traverses specialized audience segments. The argument draws on two heuristic strands of recent sociolegal scholarship: systems theory notions of autopoiesis, and concepts of negotiability in plural property relations. The potential for complex interpretations of simple legal rules is illustrated through a case study of the Fataluku language group in the district of Lautem, East Timor.     

论公司法的性格——强行法抑或任意法?

本文分析公司法的基本性格 ,探讨参与公司制度的各方当事人是否有选择或退出法律规范的自由。对有限公司法而言 ,原则上普通规则可以是任意性的 ,而基本规则应具有强制性 ,不得由当事人自由变更。股份公司法中的基本规则和有关权力分配的普通规则适用于管理层与股东之间利益冲突最为激烈的领域 ,原则上它们应该是强制性的 ,有关利润分配的普通规则则允许有一定的灵活性。在此基础上 ,作者对完善我国的公司法体系和结构提出了若干建议。     

Social Rules: Some Problems for Hart’s Account,and an Alternative Proposal

What is a social rule? This paper first notes three important problems for H.L.A. Hart’s famous answer in the Concept of Law. An alternative account that avoids the problems is then sketched. It is less individualistic than Hart’s and related accounts. This alternative account can explain a phenomenon observed but downplayed by Hart: the parties to a social rule feel that they are in some sense ‘bound’ to conform to it.

     

Linking the global to the national: an application of the international pathways model to examine the influence of international environmental agreements on Cameroon’s forest policy

Cameroon’s tropical forest cover is one of the largest in the world. It is home to some of the world’s rarest plant and animal species. However, the country has suffered extensive forest loss for many decades as a result of socioeconomic and political factors. The growing global concern for the health of the world’s forests and related global issues has placed pressure on Cameroon to sustainably manage its forests. The intricacies of domestic and international pressures on Cameroon’s forest sector means that policy makers have to take into consideration the dynamics of the domestic-international nexus in developing the country’s forest policies. The increasingly integrated global governance of the world’s forests—international agreements, protocols and treaties, international program, international institutions, international actors, and international norms—together constitute international policy regimes that have influenced the direction of Cameroon’s forest policy. Employing the international pathways framework model, an analytic model which describes how transnational actors and international institutions affect domestic policies and policy making, this paper examines the extent to which international environmental agreements have influenced the direction of Cameroon’s forest policy and policy making. The application of the international pathways model facilitated analytic review and allowed for a better understanding of how Cameroon has utilized the complex global forest governance arrangements to enhance its domestic forest policy.     

Response to Bennett and Sommers

This paper is a response to Christopher Bennett’s and Tamler Sommers’ critical discussion of my book Responsibility from the Margins.

     

论社会多数决的适用——基于公寓大厦管理立法展开

多数决,意指视多数意志为全体意志而要求统一遵行。多数决作为民主的要核,不仅存在于政治领域,也广泛适用于社会生活。基于国家与社会的二元划分,社会多数决与政治多数决也呈现出不同的特点,社会多数决并不完全复制政治民主的理念与制度,其适用也并非是无条件、无限度的。多数决以共同体的存在为前提,且该共同体内部应有利益分化,并由此形成可流变的多数与少数。可交付多数议决的一般限于共同体特有的公务事务,排除就个人事务进行多数决,以禁止多数意志替代个人选择;对国家立法已有强制性规范的事项也不得适用社会多数决,且多数决结果不得与强行法规范相抵触。