Hayden Luke O’Neill (Independent) has posted From Validity to Navigation: Legal Adequacy, Drift, and Institutional Design on SSRN. Here is the abstract:
Legal systems are structurally designed to authorise action, yet are often less carefully designed to constrain, review and terminate that action once the conditions justifying it have changed. This asymmetry produces a recurring institutional problem: a regime may remain formally valid while becoming increasingly difficult to navigate, contest, review or conclude. This paper introduces the concept of legal drift, defined as the condition in which legal authority remains formally valid while degrading in threshold clarity, bounded discretion, reason-giving, navigability and closure integrity. Existing jurisprudence offers powerful accounts of validity, legality, interpretation, planning and the exception. It offers fewer operational tools for evaluating how legal systems perform under strain. To address that gap, the paper develops a supplementary framework of legal adequacy structured across three phases: lawful activation, disciplined judgment and visible closure. It then operationalises that framework through six variables—authority, threshold, purpose, discretion, reasons and closure—and two heuristic metrics: the Legal Adequacy Score (LAS) and the Closure Delay Index (CDI). Applied to a strategic multi-jurisdictional dataset including Belmarsh detention, NSW COVID-19 public health orders, Australian immigration detention, Australian control orders, Minister for Immigration and Citizenship v Li and Dietrich v The Queen, the framework shows how legal systems can remain lawful while losing operational adequacy over time. The paper concludes that modern legal design should evaluate not only whether power is validly activated, but whether it remains intelligible, bounded, reviewable and terminable under real-world conditions.
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