Introduction: legal failure

B. van Rooij

The assertion that state law sometimes fails is not new. Over three decades ago, Allott (1980, 55) wrote, “Laws are often ineffective, doomed to stultification almost at birth, doomed by the over-ambitions of the legislator, and the under-provision of the necessary requirements for an effective law, such as an adequate preliminary survey, communication, acceptance and enforcement machinery.” Legal failure includes the law’s in- and over-effectiveness, which may “create uncertainty, chaos, distrust, or hostility, rather than [...] regulate properly” (Cotterrell [1992, 52] summarising Teubner 1987).

The question of legal failure has also been central to professor Jan Michiel Otto’s academic work on law and development, questioning how to use the law to improve the goals of development (Otto 2009). He sought to promote a new view on the law that went beyond legal positivism and to stimulate a law that would be effective in directing positive social change. Professor Otto used the key concept of “realistic legal certainty,” which he launched in his inaugural lecture (2002b, 2004). With it, he sought to connect the thinking of traditional lawyers to the concerns of development administration and socio-legal scholars. Traditional lawyers focused on the law's clarity and predictability and thus on legal certainty as a core trait of a well-functioning body of law. Development administration and socio-legal scholars focused on issues of implementation and effective law in action.

This article analyses why it is so difficult (and often impossible) to adapt state law to local circumstances and what this means for the search for realistic legal certainty. It argues that there is a contradiction between the logic of modern state law and that of local norms. The logic of modern state law seeks unity and certainty and is thus not limited to a certain place and time. By contrast, the logic of local norms is geographically and temporally embedded and is thus varied and uncertain over place and time. This contradiction is one fundamental reason why state law cannot be well adapted to local circumstances and justice, and may fail. This article shows that this problem is rooted in a Catch-22 situation with regard to state law's levels of abstraction. As is often the case, state law's levels of abstraction become dislocated; overly specific state laws no longer represent an abstraction of all local norms. This causes problems in implementing such laws locally. The logical solution would be to only make state law as abstract as necessary so as to cover lower-level norms. The problem is that the large scope ofmodern state law would render such abstraction meaningless and would not provide certainty and unity. This article will show that this contradiction between state law and local justice can only be reduced, not solved. It proposes reducing the contradiction through spatially-planned lawmaking and the development of case law. Spatially-planned lawmaking can occur through social scientific-based codification. For developing civil law systems currently lacking case law, they can develop it as a bottom-up source of law through legal research of published court cases.