Are Principles Less Clear Than Rules of Conduct? Introducing Novel Measures of Substantive Rule Clarity

One proposed solution to the increasing regulatory complexity associated with rules growth is to replace detailed rules with standards, principles or goals (Decker 2018; May 2003). The idea is that these alternatives can be more broadly formulated, thus leading to less regulatory burden and more flexibility. At the same time, these broadly formulated alternatives are seen as potentially being less clear than detailed rules, since there might be disagreement or confusion about their application in concrete cases (Decker 2018; Ford 2008; Tanke 2011). This paper aims to evaluate whether these concerns are justified. It does so by developing a method for measuring the rule clarity of regulation. Rule clarity is here interpreted in a substantive manner, not referring to readability, but to the room for disagreement that rational agents may have about the meaning and application of the rules. Building on insights from linguistics, we can discern between two different sources of unclarity in regulation: vagueness and indeterminacy (Popelier 1997). Vagueness entails that the applicability of a term is unclear: it is unclear whether some X counts as Y. In principle, it is possible to (partly) resolve vagueness, either by specifying more properties of a vague concept, or by listing things that fall under it. Indeterminacy, in contrast, arises due to evaluative terms that cannot be clarified in abstracto, such as ‘adequate’, ‘well’, ‘reasonable’ … (Popelier 1997, 2004). When we want to evaluate rule clarity, we must thus account for both indeterminacy and vagueness. For measuring indeterminacy, a dictionary-based approach akin to the one developed by Gastinger and Schmidtke (2023) can be used. This method, however, is not feasible for measuring vagueness, since every word is vague to some extent. Therefore, a new measure for vagueness is developed that utilises cache augmented LLM-generation. This way, the clarity of regulation can be measured more precisely, accounting for both indeterminacy and vagueness. This can help advance debates about the merits and drawbacks of different types of regulation and about potential solutions to perceived problems associated with rule growth. References Decker, C. (2018). Goals-Based and Rules-Based Approaches to Regulation. BEIS Research Paper. Ford, C. (2008). New Governance, Compliance, and Principles-Based Securities Regulation. American Business Law Journal, 45(1), 1-60. Gastinger, M., & Schmidtke, H. (2023). Measuring precision precisely: A dictionary-based measure of imprecision. The Review of International Organizations, 18, 553-571. https://doi.org/10.1007/s11558-022-09476-y Popelier, P. (1997). Rechtszekerheid als beginsel voor behoorlijke regelgeving. Intersentia. https://hdl.handle.net/10067/175140151162165141 Popelier, P. (2004). De wet juridisch bekeken. Die Keure Brugge. May, P. J. (2003). Performance-Based Regulation and Regulatory Regimes: The Saga of Leaky Buildings. Law & Policy, 25(4), 381-401. Tanke, M. G. J. (2011). Investigating a new policy model: principles based regulation. A case-study on the effects of principles based regulation for policy that regulates emissions. In. Enschede.