Qual­ity over quan­tity is best

The Witness - - OPINION - Martin van Staden

THE view that a leg­is­la­ture is only “pro­duc­tive” when it passes many laws in a short pe­riod must be chal­lenged. The role of a leg­is­la­ture is more sub­stan­tive than sim­ply be­ing a law-pro­duc­ing fac­tory.

The vast quan­tity of laws, notwith­stand­ing their shock­ingly low qual­ity, that em­anates from the SA Par­lia­ment has en­sured that no or­di­nary per­son can hope to re­main up to date with the con­tents of the statute book and even less so with the mul­ti­plic­ity of pro­vi­sions that gov­ern their daily lives.

Re­spect for the rule of law would bring this to an end.

Moira Levy, of the par­lia­men­tary mon­i­tor­ing web­site Notes from the House, lauds the South African Par­lia­ment for mov­ing speed­ily in the last weeks of 2018, pass­ing nine bills com­pared with 14 in the rest of the year.

In the United States in 2013, Josh Huder com­plained in an ar­ti­cle for the Govern­ment Af­fairs In­sti­tute that congress had been “the least pro­duc­tive since the Civil War [1865]”. The last two con­gresses, he ar­gued, ap­peared “his­tor­i­cally in­ept”.

In Au­gust 2017, Busi­ness In­sider re­ported on a let­ter cir­cu­lated by in­vest­ment con­sul­tant Michael Arone in which he said congress had done lit­tle and that only 45 laws were en­acted be­fore its break that year. This “un­pro­duc­tive” slow pace of leg­is­lat­ing boded ill for “congress’ his­tor­i­cal stand­ing”.

The ob­ses­sion with hav­ing leg­is­la­tures mass pro­duce new laws for their own sake should con­cern any­one who val­ues liv­ing in a free so­ci­ety where the govern­ment is a ser­vant, rather than a mas­ter, of the peo­ple.

Both South Africa and the United States suf­fer from the con­di­tion of over­leg­is­la­tion. There are too many laws per se, but also too many of an in­fe­rior qual­ity, on the Statute Book.

In his mag­num opus on le­gal cer­tainty and the rule of law, Free­dom and the Law, Bruno Leoni re­counts the story of law­mak­ing in an­cient Athens.

The prob­lem was that while law-mak­ing had be­come the do­main of leg­isla­tive as­sem­blies rather than dic­ta­tors, no­body knew whether the laws passed one day would still be the same the next, or whether they would have been re­pealed or mod­i­fied.

Tysamenes thus in­tro­duced a con­sti­tu­tional ref­or­ma­tion that made spon­sors of bills di­rectly re­spon­si­ble for the con­se­quences and ef­fi­ciency of those laws.

If it could be proven that a bill had some grave de­fect or con­tra­dicted ex­ist­ing laws, the spon­sor of the bill could be con­victed, and if found guilty, was usu­ally sad­dled with a hefty fine. The death penalty was also a pos­si­bil­ity.

Leoni was prob­lema­tis­ing the dis­course around “le­gal cer­tainty”, which usu­ally meant that the pro­vi­sions of a given law are writ­ten down, and thus are “cer­tain”. Leoni ar­gued that the rule of law is also con­cerned with an­other as­pect of le­gal cer­tainty, that is that the laws do not change con­stantly and new laws are not in­tro­duced con­stantly.

When le­gal cer­tainty is un­der­mined in this way, peo­ple can never truly “know” the law as it ap­plies to them and mod­ify their be­hav­iour ac­cord­ingly.

Leg­is­la­tures do not ex­ist sim­ply to make law. They must also rep­re­sent the in­ter­ests of their con­stituents in govern­ment and pro­vide over­sight for the equally grow­ing reg­u­la­tory ad­min­is­tra­tive state.

In its law-mak­ing duty, how­ever, Par­lia­ment must en­sure the leg­is­la­tion it en­acts is clear, un­der­stand­able to the layper­son and suc­cinct (as op­posed to the hun­dreds of pages leg­is­la­tion con­sists of today).

The law is sup­posed to be ac­ces­si­ble, which is about more than be­ing able to get a PDF of a new law and read it. Ac­ces­si­bil­ity means it must be rea­son­ably un­der­stand­able and rea­son­ably know­able to those to whom the law ap­plies.

In 2019, we should seek to re­duce, not in­crease, the num­ber of laws that dom­i­nate ev­ery as­pect of our lives.

Our fo­cus should be on the in­tro­duc­tion of good law: Fewer statutes that are well-writ­ten, short, and based on firm ju­rispru­den­tial prin­ci­ples.

This is the only way to re­store to the law the majesty and re­spect that it de­serves, and it is the only way for South Africa to live up to its com­mit­ment in sec­tion 1(c) to bring about the supremacy of the rule of law.

• Martin van Staden is a le­gal re­searcher at the Free Mar­ket Foun­da­tion and is pur­su­ing a mas­ter of laws de­gree from the Univer­sity of Pre­to­ria.

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