The Law Blog

_{Anshuman Sahoo is a researcher and writer, and can be reached at anshuman@thelawblog.in.}

Some concepts are easy enough to be understood by everyone. Some are on the exact opposite end of the spectrum, and are known by their analogies to ‘rocket science’. There exist, however, some peculiarly complex concepts in between these two extremes, that achieve a deceptive familiarity due to their frequent, albeit reductionistically shallow, deployment. The concept of ‘complexity’, ironically, is one of them.

Describing our daily lives wouldn’t probably be possible without using the words ‘complex’ and ‘complexity’. The city route is complex, the job market is complex, the office politics is even more complex. And mirroring all these complexity, the legal system is getting increasingly complex.

Are we confusing complex with complicated, though?

Complexity?

The job market is indeed complex. So is the economy. The urban society is doubly so. But a bunch of threads tangled together? Maybe not. Complicated, sure, but not complex. A complex system is one where its numerous parts dynamically interact with each other, giving rise to emergent, often unpredictable, patterns and behaviours that evolve over time. (Read this.) Human societies are complex, because they are the result of groups of individual interacting. So is the economy. Culture. Legal systems.

Appreciating legal complexity requires understanding at least three features of any functioning legal system: interconnectedness, adaptive evolution, and emergent non-linearity.

• Interconnectedness: Law doesn’t and can’t operate alone – it is deeply embedded within social customs, public morality, economics, politics, technology, among others. But legal provisions are also highly interconnected, leading to something like a ‘web of rules’. As scholars have pointed out, law is better understood as a network of relations and normative prescriptions rather than a linear body of blackletter texts.
• Adaptivity and Evolution: Law continuously responds and adapts to changes in society, technology, economy, and politics. And in doing so, it mimics the Darwinian model to evolve. Recent scholarship also attempts at a memetic approach to legal evolution. Using an evolutionary lens to look at law presents us with a more nuanced, decentralised, and path dependent picture of the legal order, as opposed to the older centralised and intelligently designed model.
• Non-linearity & Emergence: Non-linearity means that the output of a system isn’t directly proportional to its input, often leading to complex interactions, while emergence describes the arising of unpredictable properties or behaviors in a system as a result of these non-linear interactions among its components. Despite the reputation of legal studies as a stable as well as stabilising system, legal systems show significant levels of non-linearity and unpredictability with small changes to rules often leading to disproportionately large socio-economic effects. Interestingly, however, network effects and emergence also come together in legal systems to enable predictability, eventually.

The three peculiarities discussed above give law and legal studies its characteristic complexity. However, it also means that these complexities are inherent to legal systems, and were always there, hidden deep within the very epistemological structure of law and legal studies. Then, the question arises, if legal systems did fine a century ago with all these inherent complexities, why bother about it now?

Because the last few decades of techno-social transformations have irreversibly transformed the legal system as well, driven by a systemic response to the changing socio-economic order. From a theoretical standpoint, at least three interconnected drivers stand out: increasing functional differentiation and specialisation, globalisation and the emergence of multi-level multilateral governance, and finally, the growing influence of algorithmic governance.

Modern societies tend towards increasing functional differentiation and specialisation, fragmenting social processes into specialised subsystems (see this). Over time, each subsystem internally develops its own specialised language, expertise, and operating logic, exponentially increasing the level of complexity. As law interfaces and interacts with these differentiated systems, it must continuously adapt, and internalise those complexities in the process.

This increasing differentiation has a deep causal link to the second driving factor I mentioned above, globalisation and the emergence of multi-level multilateral governance. The accelerating pace of globalisation intensifies the interconnectedness of jurisdictions, economies, and regulatory frameworks, creating layers of overlapping rules and institutions. This multilayer overlapping creates an adaptive pressure over the domestic legal systems. Regulatory responses to differentiated socio-economic subsystems eventually overlap, and create a web of nested legal norms spanning local, national, and supranational domains. These multiple layers not only interact non-linearly, but also evolve dynamically, consequently increasing the legal system’s structural and interpretive complexity.

The third and final driving factor I mentioned above is that of algorithmic governance, popularly referred to as ‘code is law‘. Technological advances, especially digitisation and automation, fundamentally reshape the way legal norms function by embedding rules directly into software codes and technical architecture. Consequently, the legal system becomes embedded into the privately owned technological systems, fundamentally changing how we perceive property, ownership, and autonomy.

These three intertwined and interdependent drivers have come together in recent times to amplify the inherent legal complexity, shaping law into a highly networked and adaptive system with ever-more dynamic boundaries and internal coherence. Given the role of law in coding the social structures of rights, duties, powers, and restraints, it becomes an interesting, though difficult, undertaking to try and understand the political economy of the increasing legal complexity.

Political Economy of Legal Complexity

Before delving into the political economy of legal complexity, it is important to understand the political economy of law; how law functions as a form of ‘code’ in structuring economic transactions and defining the distribution, or even predistribution, of wealth and power through the selective allocation of rights and privileges.

Assets, be it physical, financial, or even digital, gain economic value primarily because of legal recognition (sometimes even by using the law to create artificial scarcity, like the case of IP law). When creating rights by way of recognition, the law does not only encode rights but also create hierarchical arrangements of privileges, determining who controls and accesses resources, markets, and opportunities. Legal systems do so by positioning law as a modular architecture through which capital and hierarchies are institutionalised through tools like property rights, collateral, redefining tools of corporate personhood and other legal fictions, trust mechanisms, creation of artificial scarcity etc. (see)

Why do laws and legal systems encode these rights and power structures despite the vulnerabilities of being captured by private actors? The answer is social entropy. Legal systems function primarily to manage and navigate social entropy by structuring expectations, interactions, and institutional behaviour. By encoding clear rules, responsibilities, and procedures, legal complexity can initially help stabilize society by reducing uncertainty and enhancing predictability.

However, beyond a certain threshold, growing legal complexity paradoxically increases systemic entropy and fragility by producing ambiguous norms, conflicting regulations, and interpretive uncertainty. It also introduces non-linear emergent risks and vulnerabilities, resulting in unpredictable outcomes and higher susceptibility to systemic crises or breakdowns.

As these uncertainties loom over, legal complexity disproportionately advantages actors who possess socio-economic resources and expertise to navigate the complexity. With complexity as a part of the epistemic design of law, the legal system becomes increasingly frictionless for those with access, and increasingly exclusionary for those without. Legal complexity, then, becomes a tool to facilitate rent-seeking behaviour, enabling privileged private actors to manipulate regulatory ambiguities for economic benefit, further consolidating their socioeconomic advantage. A tool for legal preselection. Complexity, then, becomes a political-economic resource, something that private actors can leverage to protect and entrench their interests. (See this, this, and this.)

From a systems perspective, the implications are even worse for institutional plasticity, epistemic justice, and governmentality. Legal complexity emerges as a coevolutionary product of the state-market interactions. Law, in its attempt to regulate the financial, technological, and socio-political complexity, absorbs and institutionalises the very complexity it is trying to regulate, and becomes a platform that selects certain market forms and freezes them into legal infrastructure. (see) This entirely transforms our understanding and treatment of legal subjectivity itself. The citizen-subject becomes a managed entity instead of the autonomous right-bearer, whose participation is actively conditioned by his/her navigability of the legal complexity.

Way forward?

So, what do we do about it?

Honestly, I have no idea. Neither do many others. While we don’t yet know what would work and what won’t, we have a number of working hypotheses, though. From principled governance to revisiting institutional design, we have been theorising and experimenting. (See this, this, this, this, this, and most importantly, this.)

Nevertheless, a good starting point can be the recognition that legal complexity is already influencing how we live and thrive as a society, and if not managed carefully, it can emerge as a strategic tool through which private actors shall systemically protect, entrench, and recreate their privileges.