The political economy of legal complexity: implications of the market building state

Thesis

This dissertation investigates the causes of increasing legal complexity in modern legal systems. Specifically, it asks how changing relationships between states and markets produce changes in legal complexity. Legal complexity is increasing in many modern legal systems, with consequences for the rule of law. Laws have become more ambitious in the conduct they govern, while regulating conduct in more detail and greater technicality than ever before. Legal complexity makes it harder for citizens to understand and comply with the law, undermines access to justice as litigation becomes costlier, reduces competition in regulated industries by increasing barriers to entry, and increases the risk of errors in application of norms by citizens, administrators, and judges.

This research builds on and challenges existing accounts of legal complexity and advances what I call the ‘market building’ theory of legal complexity. As a result of changing political economies since the 1980s, markets and market relations have gained in importance in modern economies. Markets are constituted by law, and they generate substantial and accretive legal complexity as a side-effect. This results principally from the way the profit motive creates powerful incentives that produce or exacerbate market deficiencies. Governments use law to manage incentives and market dynamics to address these deficiencies but are faced with the strength and resilience of profit-related incentives. Moreover, governments now use law to encourage or mandate participation in markets and often have abandoned non-regulatory means for reshaping market dynamics. Finally, I highlight that state provision of goods and services can be expected to produce less legal complexity than market provision.

The dissertation develops its case through two case studies of the development of private pensions law in the UK and Australia that clearly demonstrate the nexus between market building and legal complexity.

Authors: Simoes Da Silva, N

• DOI: 10.5287/ora-8nqyvxva9
• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: private pensions; legal complexity
• Subjects: Financial services industry--Law and legislation--Great Britain