Hyperlexis and the rule of law

On a familiar view, the rule of law is valuable primarily because it enables people to plan their lives. Although familiar, I argue that planning-centered conceptions are undermined by equally familiar features of modern, institutionally dense administrative states. This is the phenomenon of “hyperlexis”: the sheer quantity of legal rules, regulations and policies, overwhelm law’s subjects. Under conditions of hyperlexis, people are reasonably ignorant of that law, as the costs of acquiring and maintaining accurate legal knowledge rise in the face of law’s superabundance.
Rather than conclude that the rule of law is an empty ideal, I sketch an alternative conception. On what I term a contestatory conception, the rule of law requires an adequate opportunity to challenge decisions made by officials. The animating idea of a contestatory conception of the rule of the law is that officials should relate to citizens in the space of reasons rather than merely through the exercise of power.