Conclusion and recommendations

As professor Otto has argued, legal failure is highly complex and related to legal, political, administrative, cultural, and economic factors (2002b). A full understanding of legal failure requires understanding the interplay of these factors within the given situation of legal failure.

As the Catch-22 analogy has made clear, the problem of spatial legal failure cannot be solved, only reduced. The first approach is to base spatially planned lawmaking on social scientific research. A policy choice has to be made at each level of lawmaking about which norms are to be codified or regulated at that level. In general, the higher the level and the scope of application, the more cautiously legislation should be approached. Ideally, at the highest levels, only norms that will need to be implemented uniformly throughout the large scope of application should be codified. There should be few of these norms. They could then be backed up with enough economic, political, and social implementation funds, even though they may not fit all local norms or circumstances. Higher levels of lawmaking should base their decision on what laws to make (or even better, on which to keep) on the basis of what norms are absolutely necessary to provide unity and certainty throughout their scope of application.

Second, legislation should once again, as much as possible, be increasingly based on and sensitive to local societal norms. Legislative drafting should be based on social scientific research. Such research should find out what the existing norms are within society and make a conscious choice about which of them to codify. It should further analyse the mutual effects of existing norms and new regulatory law. Such choice or analysis should estimate the effects of norm implementation and its effects on different localities. In certain localities, local norms are opposed to or different from those chosen in codification. Thus, the estimation should be made according to how those localities will react to the legislation and what the local socio-economic costs of norm implementation will be. When legal drafts are based on and accompanied by such research, the political processes of lawmaking can benefit from a better understanding of how the proposals fit the interests of different constituents.

As we have seen, for many civil law-based developing legal systems, there exists another problem which aggravates spatial legal failure: the lack of case law as a source of law combined with the lack of doctrine development through legal science. The lack of these two factors leaves no mechanism through which local norms can have an impact on the legal system. It also places the full responsibility of providing legal certainty on the lawmaker, resulting in too much and overly specific law. Such law is too rigid and poorly adapted to local and temporal differences. But perhaps even worse, it causes legal uncertainty because of unclear legislation, whose interpretation is not guided by any legal criteria, resulting in legal uncertainty.

To solve this problem, it is imperative that civil law based systems that lack a functioning system of case law start developing it. This requires several steps. It is not easy and it will take many years to do so. First, cases and decision should be published and should include as much information as possible about the motivation behind the decision. Second, there should be enough published legal decisions of a certain quality. This means that the judiciary must meet a certain level of professional standards. Then legal science must start to analyse this bulk of cases and discern what commonalities can be discovered in interpretations of certain norms. On this basis, an interpretation doctrine may be developed. Finally, legal monographs, textbooks, professional standard works, and teaching materials should be written on the basis of such interpretation doctrines. In all of this, digital technology now provides excellent tools that can ease these steps.

If these steps are followed, a new generation of legal professionals will be educated to interpret the law's uncertainty on the basis of induced doctrine. This will lead to a higher level of legal certainty, while also lessening spatial legal failure because local norms will become part of the legal system. For large unitary legal systems such as China, perhaps several different doctrines for different parts of the country may develop, as a solution to the huge spatial challenges national norms must face.

The law’s spatial dimension thus poses a challenge for legal scholarship. It demands that legal scholars seek mechanisms to integrate the abstract and specific, similarly to their colleagues in social science. In this, the work is similar to sociological integrative approaches of the last twenty years, whether it is integrating “micro and macro” (Ritzer, Alexander and Wiley; see Ritzer 1996) or “agency and structure” (Giddens and Bourdieu; see Ritzer 1996). Part of the integrative approach within legal studies consists of interdisciplinary research or multidisciplinary research collaborations with sociologists, anthropologists, political scientists, and economists. An exchange of knowledge and methods leads to a better understanding of the spatial dimension of law and how its different levels of abstraction can be integrated.

This author hopes that all ofthese ideas will help create a truly accessible form of realistic legal certainty that promotes the goals of development that professor Otto has argued for over the course of his career.