by Anthony J. DeMattee
Laws constrain who can vote, what we may consume, what we can choose to do with our bodies, and many other aspects of our daily lives. Understanding a law’s impact on society is oftentimes challenging. A key reason for this is statutory multiplicity: legal domains are frequently governed by numerous laws whose provisions overlap and sometimes contradict each other. Capturing and resolving statutory multiplicity, then, is vital to understanding how laws are interpreted and applied to specific circumstances.
In my paper, I present a method for addressing statutory multiplicity that uses the Institutional Grammar. Originally developed by Sue Crawford and Elinor Ostrom in 1995, Institutional Grammar is a tool for turning provisions found in legal texts (e.g., laws, regulations) into institutional statements – directives about what an actor may, must, or must not do. Those institutional statements can then be broken down into a set of components to capture information about the institution being studied. Crawford and Ostrom’s Grammar had five such components: the Attribute (the actor in the institutional statement), the Deontic (which identifies if an action is required or optional), the Aim (the action in question), the Conditions (the circumstances under which the statement applies), and the Or else (the consequences if the statement is not followed).
Figure 1. Section 15 of Kenya’s Societies Act of 1968.
If we conceptualize laws as bundles of legal rules, we can interpret a legal institution that governs a specific domain as a bundle of rules found across multiple laws. We can then use the Institutional Grammar to both describe the features of that legal institution and also detail how the legal institution changes over time. In essence, my method involves “scaling up” from legal provisions to laws, and, ultimately, jurisdiction-level legal institutions.
The method that I outline in my paper has three steps. First, I code laws using IG-based coding protocol items. I do this by taking provisions found in legal texts, reworking them into the institutional statements, and coding all laws using Institutional Grammar (see Figure 1 for an example of this). I assign each statement a numerical value based on whether the rule being coded is permissive/democratic or restrictive/undemocratic. Permissive rules are given a [+1], while restrictive rules receive a [-1]. After coding all laws in the legal corpus, the second step averages coded values for each coding protocol item. This calculates a jurisdiction value for each item in the coding protocol and equals the average value of a particular coding protocol item across relevant laws active in the jurisdiction. The final step estimates values for the jurisdiction-level legal institution. To do so, I aggregate all values calculated in step two. Aggregation can be done either by simple summation or factor analysis. Each method has its benefits and drawbacks. Simple summation is the more straightforward of the two, though this can come at the expense of a loss of nuance since under simple summation rules with a positive and negative valence would cancel each other out. Factor analysis, on the other hand, allows you to weigh provisions and thus get a more accurate calculation, but is consequently more complicated than simple summation.
I applied this method to laws regulating civil society organizations (CSOs) in Kenya. Throughout its independence, as few as 1 to as many as 13 laws simultaneously affect Kenyan CSOs. I applied both simple summation and factor analysis to calculate the values for the jurisdiction-level legal institutions. Figure 3 compares the results for both techniques at four important moments in Kenya’s post-colonial history, with net permissiveness (dashed line) representing simple summation and latent permissiveness (solid line) representing factor analysis. The latent permissiveness measurement suggests that the permissiveness of Kenyan CSO laws increased significantly in the years immediately following independence and remained relatively steady thereafter, while net permissiveness registered a significant uptick in permissiveness in the 1990s.
Figure 3. Comparing techniques measuring Kenya’s legal institutions.
Legal institutions have become increasingly complex, defined by numerous laws that intersect with one another. Statutory multiplicity is fertile ground for abuse. For instance, antidemocratic regimes may exploit complexity to engage in “restriction by addition,” where restrictive and undemocratic rules are added to the institution, or “restriction through subtraction,” where an institution is made more restrictive by removing permissive rules. My paper presents an approach that leverages the Institutional Grammar to better account for the many legal rules that comprise a jurisdiction’s legal institution. This method is amenable to any legal topic and is especially appropriate when multiple statutes simultaneously comprise the legal institution in a single jurisdiction.
You can read the original article in Policy Studies Journal at
DeMattee, A.J. 2023. “A grammar of institutions for complex legal topics: Resolving statutory multiplicity and scaling up to jurisdiction-level legal institutions”. Policy Studies Journal 51: 529–550. Available from: https://doi.org/10.1111/psj.12488
About the Author
Anthony DeMattee is a data scientist in the Democracy Program at The Carter Center, where he develops standards and best practices for election technologies and campaign finance, media literacy, social media analyses, and studies legal institutions regulating speech, corruption, data privacy and protection, and elections. He also supports the Center’s special initiatives by creating research designs that integrate many data types for valid and reliable measurement and credible causal inference. DeMattee completed his joint Ph.D. in public policy from Indiana University, specializing in comparative politics, public policy, and public administration. DeMattee was an Ostrom Fellow during this time and remains affiliated with the Ostrom Workshop in Political Theory & Policy Analysis. After graduation, he spent two years at Emory University as a National Science Foundation Postdoctoral Research Fellow for Fundamental Research; DeMattee joined The Carter Center in 2022.
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